Posts by Graeme Edgeler
Last ←Newer Page 1 2 3 4 5 Older→ First
-
What about compulsion!??!? It exists for all crimes including beating the poo out of a child. So, assault isn't a crime?
...
Answer my point about compulsion.
Assault is a crime when committed in circumstances that do not involve an applicable defence.
If I push you because I was instructed to by a person holding a gun to my head, I have assaulted you. However, I have not committed a crime, I have not commited an offence, and have not done something illegal ... because I have a defence.
No, it's an offence if the police have PC or a warrant issued by a judge based on a reasonable chance at a successful prosecution. It's even an offence before, only one that has eluded the attention of the police.
There is an offence if there is an offence. Just because the cops reasonably believe there is an offence, does not automatically mean there is one.
I have a dvd player. The police believe on reasonable grounds that it is stolen, and I have received it illegally (the player and the serial number match one listed as missing from a burglary). A warrant for my arrest is issued. It goes to trial; in the end, it turns out that I can prove it was legally purchased by me. The person who transcribed the stolen items' report on the missing dvd player transposed two digits in the serial number.
Even though there was PC, and a warrant issued by a judge based on a reasonable chance at a successful prosecution, there was no offence. The same applies to instances where there is a defence, as distinct from a straight negation of an element of the charge.
You're examples blur a simple issue.
Answer my point about compulsion.
My examples make this a simple issue.
Only one of the following can be correct; either:
1. smacking occurring in circumstances that would have allowed a defence of "parental discipline" was not an offence; or
2. surgery occurring in circumstances that would allow a defence of "surgical operations" is an offence.I believe that the former is the law. Which do you believe?
On compulsion ... of course there is an offence. But it is committed by the person doing to the compelling, not the person being compelled.
-
This gets me back to my original point that made so annoyed about the so-called 'anti-smacking' debate. Using force against another person is an offence -- provided, as you pointed out, it is serious enough to merit the intervention of the law and the police discretion does not favour letting it go. If charged for using violence against children, the law provided a justification.
And this is what made me so annoyed about the argument advanced in favour of the amendment. Using force against someone is only an offence if there is no defence, it s only illegal if there is no defences, and it is only a crime if there is no defence.. The law has been this way for hundreds of years. And because it helped to win the argument, hundreds of years of legal understand were simply ignored.
So, that answers your point about surgery. Of course, a doctor performing surgery is not committing a crime. But she might commit an offence if she fucks it up but even if she does she can argue the defence.
I don't see how it does. I still think the two are analogous:
1. Cutting someone with a scalpel is applying force to them. In certain circumstances - those laid out in section 61 of the Crimes Act - that force fulfils the requirements of the defence of "surgical operations", and is thus not illegal, does not amount to an offence, and is not criminal.
2. Smacking someone is applying force to them. In certain circumstances - those formerly laid out in section 59 of the Crimes Act - that force fulfilled the requirements of the defence of "parental discipline", and was thus not illegal, did not amount to an offence, and was not criminal.
You seem to think that my second example above inaccurately describes the that effect having a defence has on a situation, but that the first one does. I'm not really seeing a distinction.
-
That's not the question being asked on the Herald as far as I can see. Poll of the day is: Has the anti-smacking legislation reduced assaults on children?
Who, without full access to research data, court records, police files etc, knows that? Your average Herald reader, apparently.
Lot of people could have insight into this.
People who no longer see children smacked in public, might think that the anti-smacking legislation has had an effect. People who no longer smack their own children because of the law change might be able to say quite categorically that there a fewer assaults. etc.
-
It cannot be legal before the legal hoops have been jumped through. You're argument makes it sound legal from the outset.
The accused is charged with assault on a child. The accused is of course innocent but has been arrested and charged. The action is not legal until the trier of fact (and in the case of self-defence at least, the trier of law) are satisfied that the the defendant has established the factual and legal requirements of the defence. If they are so satisfied, then no crime.
Um ... no.
Defendants are not required to establish the factual and legal requirements of a defence. A defendant simply has to have their lawyer say "it was self defence" and then the onus goes on the prosecution to establish beyond all reasonable doubt the the factual and legal requirements of the defence are not there.
The hoops are not merely there to determine legality or eligibility for sentence down the track at some trial, they are there so that people can moderate their behaviour, and behave lawfully at the time. And they are there so police can look at a particular factual circumstance and conclude, "okay this person was acting in self defence, therefore they didn't break the law and we won't charge them".
My argument is supposed to make it sound legal from the outset, because (the hoops having been met at the time of the actions) the behaviour was legal at the outset.
Smacking (where that smacking was reasonable in the cirucmstances, etc. etc.) used to be legal, it is no longer."
No, it was illegal. The law simply provided a defence to the accused to argue that the actionw as justified. Assault was still a crime regardless of whatever defences were available. Yet I repeat myself...
Do you think surgery - say an emergency apendectomy - is illegal? Or is it 'still a crime regardless of' the defence of "surgical operations' contained in section 61 of the Crimes Act?
I happen to think that an emergency apendectomy (if conducted with reasonable care and skill, and for the benefit of the patient having regard to the patient's state and all the circumstances at the time) is not criminal.
If I was to put you under an anaesthetic, and cut into you with a scalpel and (perfectly safely) removed your appendix, I would be committing a pretty damn serious crime. If you were doubled over in pain and unable to speak having been taken in an ambulance to an emergency room before being diagnosed with acute appendicitis and an ER surgeon operated on you to do the same there would be no crime.
The surgeon does not commit a crime for which some defence is available meaning he won't get in trouble at trial; the surgeon is acting lawfully.
Just as people who defend themselves with reasonable force are acting legally, and parents who applied reasonable force to correct their children were acting legally.
"You can write < quote> in front of it and< /quote> after the bit you're quoting (but without the additional spaces. You can copy these from the left of the comment box (which also explains how to do links, bold, and italics)."
Thanks.
If you're trying to work it out, I can suggest practice using the "preview" button. I use it even now when I've got a whole bunch of different formatting in comments.
-
I agree all the law change did was remove a defence and this seems lost on nearly everyone.
Because it entirely misses the point.
The existence of defences cannot be treated as an entirely separate matter from the offences to which they are a defence.
Yes, the use of any force falls within the definition of assault. But not all uses of force are or have been criminal.
Smacking was generally legal because there was a defence. Surgery is generally legal because there is a defence.
-
You are conflating the existence of a defence with the legality of a specific action. They are not the same.
I don't believe I am conflating them - I wasn't talking about a specific action, I was talking in general. In general, acting in self defence is currently legal, there are hoops one needs to jump through to be legally be "acting in self defence" - the force used must be reasonable in the circumstances, etc. - but, in general, force used in self defence is legal.
As, previously, parental smacking was legal - there were hoops (reasonableness of force in the circumstances, purpose of the force being corrective, etc.) - but, in general, parental smacking was legal.
Third, my understanding was that before the law parental smacking was not "something legal" but rather if one was charged with assault on a child one had at one's disposal s59 (a defence) -- and now that is no longer the case.
The idea that the amendment to section 59 was only repealing a defence (and that smacking was always illegal, just that there was a defence) goes against several hundred years of settled law. If there is a full defence (cf. provocation), there is no crime. Smacking (where that smacking was reasonable in the cirucmstances, etc. etc.) used to be legal, it is no longer.
I didn't know how to make your post look all grey and cool...
You can write < quote> in front of it and< /quote> after the bit you're quoting (but without the additional spaces. You can copy these from the left of the comment box (which also explains how to do links, bold, and italics ).
-
Eddie:
Tui billboard if it happened, but it didn't, sorry. She quite clearly said to Paul Henry that her law change was about addressing the culture in New Zealand
That's what she said today . I had understood Dave to be suggesting that at other times Bradford had said the amendment to section 59 was about reducing violence against children.
Brickley:
ALL THIS LAW DID WAS REMOVE A DEFENCE. That was the name of the law. Read the bloody title. I think that is secure enough that it can be stated as fact, without quoting anyone. The law isn't about using violence or not using violence. It's about how or whether we excuse or justify it.
I sent umpteen letters to the editor saying "look, if we repealed self-defence as an absolute defence to murder, would it be the "anti-murder" law?" No. Murder would still be illegal. You just couldn't excuse intentional killing in the same way anymore.
The title was the Crimes (Substituted Section 59) Amendment Act. The original name of the bill - the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill - wasn't really much better for the argument, either (people weren't using force as a justification for child discipline, but child discipline as a justification for force).
Before the amendment passed, we had a law that said assault is a crime, but (implicitly) if that assault is a parental smack, then it is not a crime.
It is currently the case that we have a law that says that assault (and murder/manslaughter etc.) are crimes, but if that assault/murder is in self defence then it is not a crime.
If there was a proposed law to repeal the defence of self-defence, I imagine people would call it the anti-self defence bill. Because the law would be making self-defence (something then legal) into something illegal - just as when we passed a law making parental smacking (something then legal), into something illegal.
-
'Ear-flick' father guilty of assault for punching son seems a perfectly reasonable headline.
'Ear-flick' father guilty of assault not so much.
Why would you have different headlines on the story when you're reading it as a one-page instead of a two-page story?
Also, the whole splitting stories over two pages is just to ploy to juke the page impression stats for the advertisers, right?
-
I'm not aware that they have though
-
PS: A word too for Sue Kedgley. I think she's wrong on many things, but she has long been right on this one.
You could probably say the same thing about Stephen Franks :-)