Posts by Paul Williams
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Thanks Graeme, I appreciate your clarifications. A few points for you to consider.
There is obviously a place for prosecutorial discretion in a crimnal justice system.
Agreed and the guidelines and public interest are significant factors in the exercise of this discretion.
I also think there is a difference between:
1. passing a law making people criminals whom you do not think are criminals and do not want to be criminals; and
2. passing a law making people whom you think are (minor) criminals criminals, and allowing that the full force of the criminal law not be brought into play in all circumstances.
You're second scenario, which I assume is what you think Parliament did, doesn't quite make sense to me. The criminality of an act is not determined at its commission, unless it's strict liability, or even at the point of it being the subject of a criminal charge. It's determined only at the point when there is a conviction.
Could you mean, "passing a law that exposes people whom you think are (minor) criminals criminals, and allowing that the full force of the criminal law not be brought into play in circumstances the Police consider meet guidelines and in which the public has an interest."
My additions are in bold.If you do, then, yes, that is what I understand Parliament did, and I completely agree with it.
I would suggest that - on the whole - Parliament might be reasonably accepting of the idea that someone who decks their opponent on the rugby field has committed an offence. In some/many/most circumstances this won't result in criminal charges, and they're also happy with that. So am I.
I wonder how relevant the rugby analogy is in all this. Parent's are legally responsible for their kid's wellbeing, rugby players are participating in a contact sport. There's a huge difference is the parties expectations of each other, their ability to engage/disengage from the situation and the public interest.
I also happen to think that an act of violence outside the rules in rugby should be prosecuted as an assault if it is in the public interest to do so and Police have a reasonable case. For instance, I think Richard Loe should have been prosecuted for eye-gouging Greg Cooper circa 1993.
Parliament passed the amendment to section 59 of the Crimes Act while telling people that good parents wouldn't be criminalised, and that the law change wouldn't make light smacking illegal.
Those are your words, possibly even a faithful interpretation of what various MPs said, however, what acts end up being determined criminal by the courts will take a while to establish.
In the end, I take the view that the amendment establishes rights for kids that have long been enjoyed by adults and any confusions about when and how they arise can be progressively worked out by the courts. My hope is that the courts hold parents/caregivers to a higher standard.
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I think so, and I think Graeme's making it in good faith. It certainly gave me pause when I thought about it. But, as I explained, it was trumped for me by other factors.
Hmmm, I fear I am missing something. I've re-read the thread but can't easily identify a point that hasn't been addressed, most recently by ScottY.
Is it possible Graeme might re-state his point, I'd appreciate it?
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How so? Section 59(4) was only stuck in at the last minute as a compromise. Or perceived compromise. Because I can't see it actually changes a thing. Though as political moves go, it was smart.
Exactly. Now unless Graeme's making a different point, which I don't quite get, I think dave's argument is simply wrong.
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To be fair, Graeme's raised it recently as well. I think it's actually their best point.
The best counter may be the one made earlier (by Kyle, I think). Sports people - especially rugby players - get into fights all the time, often in front of large crowds and tv cameras. Technically, they're committing an offense. No one seriously thinks most of these incidents should be drawn to the attention of police, let alone go to court. Yet no one thinks parliament should arrange a special defence.
Well, again I might be missing Graeme's point, but there is nothing new in the discretion and its exercise depends on published guidelines, the chances of conviction and public interest. This example, the sports fracas, is probably covered by the limited public interest (possibly a matter for debate however) and the limits of evidence.
dave's said Parliament passed a law it didn't intend to enforce. That is wrong, simply wrong. If that's his best point, his argument's fatally flawed.
There's few strict liability offences, offences for which no defense is permitted, a few reverse onus laws i.e. possession to supply drugs and many many matters for which the discretion to prosecute or not is a matter for the Police. The amendment to s.59 makes it clear that police have a discretion, that's unremarkable.
Moreover, it is clear what Parliament intended, it's stated in the third reading debate. dave might do well to read it.
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Next you will be suggesting that Graeme Edgeler be treated as a troll because he does not follow the party line and label all those who oppose this legislation as pro-smackers. This label is dishonest unless you accept that all those who lobby for a woman’s right to choose as pro-abortion.
Not at all Chuck, Graeme's contributions to this discussion have been challenging, thoughtful and respected others. I don't exactly know Graeme's views and don't feel the need for him to agree mine. What distinguishes disagreement from trolling is sophistication.
Since when has a law been made on the basis that it is not enforced? Answer that.
That's not what Parliament did dave. Read the debate, it's clear that they expected the law to be enforced. You're simply wrong.
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Paul,
Your answer doesn't really address the second part of Graeme's comment that you quoted, though.
Except that there's discretion to pursue prosecution in s. 59 and other cases. It's not a unique discretion nor are the Police exercising a judicial function; they're not determining guilt or innocence, they're making a decision about whether the act meets the threshold.
I note Bradford's third reading speech specifically noted this:
The second significant amendment to the bill has been the one put forward just 2 weeks ago by Peter Dunne, which was agreed to by both Labour and National through John Key’s leadership. It encapsulates within the bill the long-established police discretion regarding the action they take when deciding whether to prosecute in very minor cases where there is no public interest in proceeding. This new provision simply affirms in law what is standard police practice under their existing prosecution guidelines, but I think it is useful in helping to calm some of the unnecessary fears that have been driven up by the bill’s opponents.
A similar point was made in the Select Committee report also.
We were advised that all prosecution decisions are guided by the Solicitor-General’s Prosecution Guidelines. The guidelines state
that police must decide whether a prosecution is required in the
public interest.Perhaps I've misunderstood Graeme's point?
As for Dave, I wouldn't go so far as to say he's a troll, but he doesn't argue in entirely good faith.
Perhaps, but dave's had a go at me and others at various points throughout this discussion, appears determined to ignore other points of view and is repetitively restating the same single point ... in bad faith as you say... what's the test for a troll exactly?
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I'd stepped out of this conversation having grown frustrated by dave crampton's repetitive and seemingly pointless commentary. I see nothing's changed in that regard. Can I suggest now that dave really is simply a troll and we might treat him as such?
And the anti-smackers who just don't think the full force of the criminal law is the best way to change minds ... and the pro-rule-of-law-ers who think Parliament shouldn't be passing legislation it really doesn't want enforced.
Simply criminalising activity, or rather removing a defence for what would otherwise be a criminal act, alone is not sufficient to change behaviour, but it was not the only thing done. I might be misinterpreting you, but you appear to think the amendment will have limited impact. I'd agree but for the fact that the amendment was one of numerous individual and government initiatives intended to reduce child abuse.
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I am sure you are not really a bad person. You just appear to have a few hang ups more than likely form you childhood.
Chuck, this isn't the forum for you. I think that's been clear for a while but that kind of ridiculous baiting just doesn't cut it. Bugger off now, do us all a favour. You've got more than enough attention and a quick review of the thread will confirm no-one's buying...
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Despite my years in student politics etc I've never been arrested or even cautioned. I was detained as a young fella when caught out applying the five-finger discount however...
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dave, precisely which statement have I not backed-up? I assume you mean this statement:
Perhaps ScottY, but given that he admitted a punch and he was found guilty of an assault, it's not unreasonable to think the jury, which determines matters of fact not law, thought the punch relevant. This wasn't a hard case, from what little I've read, I think Bird and his mates are wasting their time defending this man.
Which you initially took issue with and then realised I did not say the punch was admitted in court. I clarified by clearly noting Russell’s reference to the judge's favourable comments about the witnesses’ accounts.
dave, the media and Russell noted the admission was made to witnesses and also that the Judge accepted the evidence of the witnesses:
This is so unbelievably disingenuous, I can barely convey my contempt for it.
But I'll try: The judge made a point of observing that the jury had accepted the evidence of witnesses. The witnesses said Mason punched his four year-old in the face with a closed fist, and was unrepentant it about after the fact.I drew the unremarkable conclusion that Mason’s guilt, despite his PR and plea, suggests the court believed the witnesses when determining the facts of the case. I simply don’t see how this is confusing or contentious.
Contrast this with your various twists and turns which include both saying you think Mason did punch his kid but railing against anyone who’d suggest the punch was relevant to the conviction.