Hard News: When "common sense" isn't
426 Responses
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Christopher Dempsey, in reply to
Speaking personally,
The problem is that our whole discourse surrounding rights, liberties, and privileges is so confused it’s difficult to tell them apart in everyday usage.
I have the liberty to move across this wonderful city/island of ours. I have been granted the privilege to use a motor vehicle in exercising my liberty. I don't have the right to act as I please when using my privilege.
Behind the wheel of a car your lack of consideration can kill someone – don’t be an inconsiderate bastard; trouble yourself to look out for others.
The root problem really. Cars have what, 130 horses? 180 horses? At any rate a lot of horses. That much power at the end of your leg? Scary. And how wonderfully we all have done in airbrushing that power away; driving's so wonderful, safe, pretty meadows as you zoom along, a handsome man beside you, blue skies and it's all unicorns and rainbows. Is is any wonder that sometimes I feel like a zombie when driving?
Which is why I would argue for a shift in criminal liability from 'carelessness causing death' (or whatever the charge is) when a car/truck hits a cyclist or pedestrian to 'murder'. We all know explicitly the power that the car has, and in knowing this, you are obliged to act in a manner consistent with exercising that power i.e. carefully and in a way that doesn't cause death. For 90% of us, this isn't problem, but for those who fail to act in a manner consistent with that power it sometimes results in the death of someone else. And to not act in a manner consistent with that power is a form of intent. Which is not carelessness.
Now wearing my elected rep hat - I did think I could work on AT to do a social behaviour campaign - we all have to rub along in this wonderful city of ours, so a little civility is called for in moving around - a kind of a 'good driver' does X message, and back this up with rewards for good civil driving behaviour, but do this over a period of time so we bring into place the idea that Auckland is the place where we move around with care and grace. Just my 2c worth as politician. Doffing said hat.
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Matthew Poole, in reply to
I would argue for a shift in criminal liability from ‘carelessness causing death’ (or whatever the charge is) when a car/truck hits a cyclist or pedestrian to ‘murder’
Murder is a big jump. Massive. Murder requires intent to kill or, failing that, intent to cause such serious injury that death was likely and the attacker didn't care if the victim lived or died. Murder is so far beyond reasonable that conviction would be almost impossible because juries would baulk at effectively imposing a life sentence for even a moment's inattention; a government that passed such a law would certainly not provide judges the wiggle room to impose a lesser sentence. Manslaughter, maybe, but murder just wouldn't pass the test of what's fair consequence for the action.
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BenWilson, in reply to
Cars have what, 130 horses? 180 horses? At any rate a lot of horses
Anywhere from 50 to 500. Average is probably around 130 here, but a souped up boy racer can easily push 300 in a car costing less than 7 grand. Older people get the same in new performance cars, but prefer to pay a lot more. I had a muscle car that cost $3000 that I managed to do 0-100km/h in less than 6 seconds in. That probably had about 250 horses.
So yes, a lot of horses.
And how wonderfully we all have done in airbrushing that power away
Yes, in fact, we are often outraged at people rubbing power in our faces, the kid in the muscle car is something that must be STOPPED, damnit! We have tuned out minds to think that is excessive power, because it's twice as much as what we have, it's noisy, and it's obvious. Indeed, it's showing off its power, often making much more out of it than there is. Instead, the car is supposed to be this calm, measured cruising device. Lost in that calculation is just how much it outclasses a bike. An average rider can probably burst out at 200-300 watts, and an average car at around 100 kilowatts. So it's 300-500 times as powerful. Even the weakest car you've ever seen kills a bike on power.
Which is hardly lost on kids, for whom cycling is the upper end of their independent transport options right up until they turn 15. They're well accustomed to what miles cost in real effort, which is why the car is such a compelling device. I remember the feeling of power from it quite vividly. It was like someone had handed me twice as much life to cram into the same time.
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BenWilson, in reply to
Manslaughter, maybe, but murder just wouldn't pass the test of what's fair consequence for the action.
Yup. Especially since actually deliberately murdering people with a car is quite possible.
We do have a distinction already between "careless or inconsiderate" and "careless or reckless", and the potential sentence for the latter is quite hefty if you kill someone. You can face up to 10 years in prison. For the former, the most you could get is 3 months.
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Would you recommend consistency in the law of manslaughter/murder so that carelessness in any area is treated as culpable homicide?
e.g:
- spilling liquid on the floor so a person slips and bangs their head, terminally
- somebody falls over in a mosh pit and suffers a fatal head injury
- cycling the wrong way up a one-way street and taking out a pedestrian -
I think part of the angst/hostility on the part of cyclists is largely due to the fact that if there is an accident they either die or get seriously hurt. From personal experience I can say that having regular near misses on the commute does raise the blood pressure toa certain degree.
If they were infrequent it wouldn’t be so bad. But if you commute by bike you quickly discover near misses are far more common than you’d expect, or like.
The video below is just a sample of what I’ve experienced over the past 6 months.
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Graeme Edgeler, in reply to
The video below is just a sample of what I’ve experienced over the past 6 months.
Just put it in as a full youtube link. No need for embed code or square brackets or anything like that.
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Ross Mason, in reply to
just a sample
Ouch!!!!
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Christopher Dempsey, in reply to
intent to cause such serious injury that death was likely and the attacker didn’t care if the victim lived or died.
Isn't this exactly what happens in the case of someone speeding? Undertaking dangerous moves?
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Graeme Edgeler, in reply to
Isn’t this exactly what happens in the case of someone speeding?
No. People speed all the time without killing someone. Death is not likely from speeding, nor is it likely from many many dangerous driving actions.
This bit covers occasions where someone is stabbed, but actually (and honestly) the person was only ever intending to do major injury, and was not intending to kill. Intentionally stabbing someone is likely to kill them, so if they die it can still count as murder, even if you weren't trying to kill them.
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FletcherB, in reply to
Intentionally stabbing someone is likely to kill them, so if they die it can still count as murder, even if you weren’t trying to kill them.
Which seems somewhat similar to a certain south-african sports star's current predicament... even if you didn't realise you were shooting your girlfriend (which, obviously, is being disputed)... surely firing a gun multiple times through a toilet door at a human is so likely to cause death as to constitute murder?
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Matthew Poole, in reply to
surely firing a gun multiple times through a toilet door at a human is so likely to cause death as to constitute murder?
In New Zealand, yes. In South Africa, not necessarily. NZ does not accept an automatic right to use firearms in self defence in the absence of an absolutely clear mortal threat. South Africa, being South Africa, may very well (I don't know for sure) allow for that right.
There are states in the US (Texas springs to mind) where it is an absolute right to use lethal force towards any person who is on your property at night. No requirement to challenge the "intruder", no requirement to establish a threat, just an unquestioned right to shoot first, shoot again, shoot some more, then call the cops and get them to find out who you just turned into a bloody Swiss cheese. This has seen students seeking help after a car breakdown being killed, and there's no legal recourse available. I think the only impediment is shooting someone who identifies themselves as a law enforcement officer, but given the attitudes of some Texans towards federal law enforcement I wouldn't even assume that that much is certain.
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Matthew Poole, in reply to
intent to cause such serious injury that death was likely and the attacker didn’t care if the victim lived or died.
Isn’t this exactly what happens in the case of someone speeding? Undertaking dangerous moves?
What Graeme said. The injury cannot be unintentional. If you speed down a residential street while children are playing in the road, and you aim at them and kill one, that would likely be murder because you intended to cause injury that you should reasonably have known could cause death, and obviously didn't care if death resulted.
If you speed down the same street with no children playing and you hit and kill a child who runs out in front of you there's no intent to cause injury so it cannot be murder. The speeding might well be an aggravating factor for sentencing for dangerous driving (if the speed was manifestly excessive), but it does not amount to intent to cause injury. What it could reasonably be is manslaughter, but what you are proposing is effectively making driving perfectly within the law but for a moment's inattention into a lack of care equivalent to discharging a firearm randomly into the air, as an example. -
Recklessness doesn’t really involve “caring” (or not) about a result. Subjective recklessness is knowledge that if you do x, then y may well happen, and doing x anyway. You might care very deeply that y not happen, but you’re still reckless.
In the UK, objective recklessness - funnily enough - mostly shows up in criminal damage and reckless driving.
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Intentionally driving recklessly, drunk or impaired is likely to kill someone - the instance of a person driving recklessly, drunk or impaired and killing someone should be “Vehicular Murder” in my view.
I can’t understand how acting in a deliberate manner, say getting drunk, or impaired, and driving a car, or driving recklessly for whatever reason is often treated as manslaughter and not murder.
In parallel - that Phillip Cottrell's killer was charged and convicted with manslaughter and not murder, “ I intentionally punched him (and stomped on him) and didn’t mean to kill him”.
When a person’s action are reckless and kill someone it should be murder – vehicular murder - when driving.
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DexterX, in reply to
Intentionally stabbing someone is likely to kill them, so if they die it can still count as murder, even if you weren't trying to kill them.
The above is realted to this - from Graeme.
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There was a case in Chch where a man was charged with and convicted of murder for intentionally hitting people with his car. This is rare, and very different from merely having an accident through careless or reckless behaviour.
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Matthew Poole, in reply to
The thing that both you and Chris have missed is that murder requires an intent to do harm, or at least an intent to do something so incredibly dangerous that a reasonable person ought to expect harm to result: firing a rifle at a house where people were known to be home, for example, is a classic NZ example where the resultant death was murder even though it was far from clear that the perpetrator intended to cause physical harm.
I'm firmly of the opinion that fatalities caused by a driver who is fleeing police ought to be murder, because a reasonable person should be able to equate intentional high-speed, low-quality driving with a significant risk of causing death. I'm iffier about death while DUI being murder, but quite happy for it to automatically be charged as manslaughter.
When you talk about "vehicular murder" you talk about using a vehicle as a weapon with intent to do harm. That is entirely possible, but to pursue all driving deaths as murder diminishes the crime of murder. Vehicular homicide is a crime in much of the US, being the offence of causing unlawful death with a vehicle, but it's not the same thing is murder.
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DexterX, in reply to
an intent to do something so incredibly dangerous that a reasonable person ought to expect harm to result
I can't see that driving recklessly or driving impaired is any different - it is so incredilbly dangerous - the end result for the deceased is the same - regardless of the whether the soft construct of intention is proved to be present or not.
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Sacha, in reply to
firing a rifle at a house
or through a toilet door, perhaps
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Keir Leslie, in reply to
Of course, someone fleeing police may not have any intent of injuring anyone, so treating that as murder kinda mucks up the rest of your position around intent.
Also in general in NZ we try to avoid objective recklessness.
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BenWilson, in reply to
Of course, someone fleeing police may not have any intent of injuring anyone, so treating that as murder kinda mucks up the rest of your position around intent.
Yes, I don't think there's anything wrong with there being a number of positions between accident and murder. Nor with murder having a gradation of punishment depending on factors relating to the heinousness of the crime. A deliberate, planned murder, where pains are taken to make sure that the victim is dead, is, IMHO, a much worse crime than killing someone on the spur of the moment, which is in turn worse than being reckless, resulting in death.
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FletcherB, in reply to
I can’t see that driving recklessly or driving impaired is any different – it is so incredilbly dangerous – the end result for the deceased is the same
Driving impaired is an interesting one... if you intend to drive impaired, before you are impaired... then your tenet holds true... If on the other hand, you go out, fully intending to get a ride home with a sober driver... and then, your capacity to evaluate your own condition becomes impaired through use of substances legal or not... while a decision to drive is bloody stupid... you could argue you were no longer in a position to accurately foresee the inevitability of a poor outcome... the fact that you are impaired means you cant necessarily predict what a sober or reasonable person could...
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Matthew Poole, in reply to
If on the other hand, you go out, fully intending to get a ride home with a sober driver… and then, your capacity to evaluate your own condition becomes impaired through use of substances
This is one of the big issues with NZ having a blood alcohol level of 0.8. By the time you’re at 0.8 you’re well past the point of being capable of deciding if you’re safe to drive. Your judgement has flown out the window while you’re still within the frame of “legal but dangerous”.
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BenWilson, in reply to
By the time you’re at 0.8 you’re well past the point of being capable of deciding if you’re safe to drive.
It's quite high, for sure. For me, that's 5 cans of beer in one hour based on my weight. But I don't think I'd be so drunk that I couldn't count, which would be the main way of assessing whether I was legal or not. We can debate about whether legal is safe in this case, but what I'm saying is that being unable to even assess what your BAC is likely to be mostly factors around being somewhat careless in keeping a track on your consumption volume and time.
I'd say this is much more likely when drinking in public than at home, where the empty bottles can easily be counted. Also considerably more likely with wine and spirits, which are usually served inaccurately in glasses, and have highly variable alcohol content.
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