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August 10, 2010 8:00am by David Farrar

General Debate 10 August 2010

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General Debate

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questlove

“light smacking is not permissible. It is illegal.”

Wrong. Something can be illegal but also permissible. It’s illegal to back up your DVDs or keep something you’ve recorded off TV for example. How a law relates to the procedures and systems it goes though in it’s application is a relevant consideration as much as you choose to deny it.

“But, silly me, when you can argue that offences are only ‘technically illegal’. Of course, as others before me in this thread have pointed out, your argument makes bad public policy when you can say to people that they can do whatever they want and it is only ‘actually illegal’ and they will only really be criminals if they get caught AND convicted!”

Viewing the law in a strictly ‘how it’s written’ sense isolates it from the various systems and mechanisms it is subject to and doesn’t give us an accurate evaluation of it’s reality. To be honest I’m surprised a purported lawyer would be so myopic. In reality, a law IS in fact subject to various systems and mechanisms and it IS relevant if no one can be sentenced on a particular offense.

“So, let’s get this straight: parents cannot legally smack their children for the purposes of correction.”

Only if you falsely limit the interpretation of ‘legal’ to not include considerations of whether people can actually be found guilty and are or are not being prosecuted and convicted.

“But then you end with “parents do not have to worry about being prosecuted and convicted for light smacking”, which is actually true.”

I am glad that you have finally admitted that I am correct. Now stop your biased scare mongering with your flawed over-restricted interpretation you RWNJ. Also your right -wing religious cheer squad doesn’t make you right.

One more time for the parents at home: parents do not have to worry about being prosecuted and convicted for light smacking
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August 13, 2010 12:03pm
F E Smith

sheesh, you don’t give up, do you? How much of a beating can you take?

“Something can be illegal but also permissible.”

Can I have some case law or reputable legal commentary (Dicey, Joseph, Dworkin or similar) on that, please. I would like to use it in Court sometime.

I still think you are wrong, however. If something is illegal it is not permissible. Full stop. Your relative approach to life will get you in trouble some day.

“To be honest I’m surprised a purported lawyer ”

Not a purported lawyer; a real lawyer. And one experienced in just this area. Unlike you.

“Only if you falsely limit the interpretation of ‘legal’ to not include considerations of whether people can actually be found guilty and are or are not being prosecuted and convicted.”

Of course, you ignore the fact that a person prosecuted for lightly smacking their child actually can be found guilty, so erase the first part of that point. The fact that people are not being convicted does not mean they cannot be convicted.

Of course, neither you nor I can say what the policy will be 5 years hence. Perhaps a Labour government (God forbid) might be elected and change the law in this area again. The statement you really should be making is actually this: parents do not currently have to worry about being prosecuted and convicted for light smacking. That is a far more accurate statement than yours.

I remain a proud member of the VRWC and, you are right, I don’t need anybody else to make my argument correct because it already is! I simply note that they were telling you how wrong you were before me.

And, after all that, you are still wrong!
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August 13, 2010 1:05pm
Kris K

… is this guy the socialists’ version of the Energiser Bunny™ on steroids?
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August 13, 2010 1:22pm
alex Masterley

FES, I rediscovered the pleasure of a good cross examination the other week. It was fun!
The way ql writes suggests his or her arse is both shiny and firmly planted in an Ivory Tower where absolutes don’t exist.
Still I expect there will be another attempt to shake your views later today.
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August 13, 2010 1:43pm
questlove

“sheesh, you don’t give up, do you? How much of a beating can you take?”

The only beating going on around here is you and your godsquads hairy knuckles against your chests.
The entire disagreement started from ‘krazykiwis’ claim that:

Every parent who has smacked their child since the repeal is guilty of a crime

I’ve shown that this is incorrect and in reality someone has to go through societies legitimate mechanisms to be declared guilty of a crime.

“I still think you are wrong, however. If something is illegal it is not permissible. Full stop.”

Regardless of who’s opinion is right here, it doesn’t make wrong my statement that ‘parents do not have to worry about being prosecuted and convicted for light smacking’. So go ahead, call light smacking illegal even though it’s not enforced, that doesn’t make my statement wrong.

“Of course, you ignore the fact that a person prosecuted for lightly smacking their child actually can be found guilty, so erase the first part of that point. The fact that people are not being convicted does not mean they cannot be convicted.”

This is your scare mongering again. You are asserting that the act criminalises light smacking and you are not even able to show that people have actually been prosecuted and convicted of light smacking. The systems and mechanisms protecting people here are in reality working and all your paranoid claims about future evil Labour parties is nothing more than far-right conjecture. And surprise surprise, my statement still stands strong, ‘parents do not have to worry about being prosecuted and convicted for light smacking’.

Nice try though lawyer *snigger*
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August 13, 2010 3:14pm
F E Smith

So you cannot show me case law that if something is illegal then it is permissible? Really? Oh dear, I am disappointed. I am sure my clients will be disappointed that I cannot use that on their behalf.

Can you not see how your argument has changed as we have gone along? You have gone from trying to lecture myself and the others about what the law is and you have been reduced to simply parroting the line that nobody has to worry about being prosecuted for light smacking.

You keep telling yourself that you have won this one, questlove, and soon Tinkerbell will come and take you to Never Never Land.

alex is right, though, you are planted firmly in an ivory tower, just not one that involves any academic learning.

Oh, and I am a lawyer. So is alex, as you can see from 1.43pm comment. There are a few of us who comment on this site. And, despite your left wing willingness to disparage and jeer, you are still, and always will be, wrong.

Actually, alex, you weren’t doing some criminal work were you? It is just I know how often civil stuff actually gets to the stage of cross-examination! But a good cross-examination where you extract the evidence you want really is very satisfying. I miss depositions, as that was always the most fun place to cross-examine.
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August 13, 2010 9:18pm
questlove

“So you cannot show me case law that if something is illegal then it is permissible? Really? Oh dear, I am disappointed. I am sure my clients will be disappointed that I cannot use that on their behalf.”

So you cannot show me case law that light-smacking is illegal and therefore it is not permissible? Really? Oh dear, I am not disappointed. I am sure parents will be happy that this cannot be used against them.

“Oh, and I am a lawyer. So is alex, as you can see from 1.43pm comment. There are a few of us who comment on this site. And, despite your left wing willingness to disparage and jeer, you are still, and always will be, wrong.”

Yawn. I’ve got better things to do then listen to you insecurely wank on about me being wrong just because you’re a lawyer. I am still, and always will be, right that parents who smack their children since the repeal are NOT guilty of a crime and they do not have to worry about being prosecuted and convicted for light smacking.
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August 14, 2010 8:31am
F E Smith

“So you cannot show me case law that light-smacking is illegal and therefore it is not permissible?”

You are kidding me, right?

You are still a leftard and you are still wrong.
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August 14, 2010 9:28am
questlove

I am still, and always will be, right that parents who smack their children since the repeal are NOT guilty of a crime and they do NOT have to worry about being prosecuted and convicted for light smacking.

Smell it, Smell it, Smell it. Now Take it! That’s for you.
/Zohan
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August 14, 2010 9:44am
F E Smith

only partly right, and I have always said that. But you have been wrong on so many things that have conveniently dropped out of your arguments as you have gone along, that you are now simply reduced to a partially correct statement.

And I still want the case law that says that (perhaps some) things that are illegal are in fact permissible, as you posited earlier.

But you are a moron.
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August 14, 2010 9:49am
krazykiwi

@questlove –

The only beating going on around here is you and your godsquads hairy knuckles against your chests.
The entire disagreement started from ‘krazykiwis’ claim that:
“Every parent who has smacked their child since the repeal is guilty of a crime”

Nice ad hominem there questlove. Not a bigot are you? Sure looks like you might be…

Still, back on topic, are you happy to commit an offence? Is it ok for you to murder someone if your mate, say, a senior police officer assures you that you’ll not be prosecuted?

Would you be happy with a law that criminalizes people having overdue library books if it came with an assurance that there would not be prosecutions under that law? Would that be good law? If yes why, if no, how is this different from your interpretation of the s59 repeal?

Seems that your morality is guided by the likelihood that capture/conviction and punishment may or may not ensue. That makes your moral compass more like a propeller, which puts your style of belief system at the centre of what’s screwed up with our society.
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August 14, 2010 10:06am
questlove

“And I still want the case law that says that (perhaps some) things that are illegal are in fact permissible, as you posited earlier.”

This is a bit of a moronic request. The protective mechanisms I’ve been referring to are in fact working so of course no cases of light-smacking are going to court. You’ve said that light-smacking is illegal and if you don’t think it’s permissible then how about YOU show me some case law from the last three years where it has been show to be this. Oh, that’s right, you can’t because in reality it is being permitted.
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August 14, 2010 11:54am
questlove

Krazykiwi I really can’t be bothered talking to you about your imaginary friend based morals.

When you can comprehend that there is no God and ‘right’ and ‘wrong’ are a human construction and so kill and murder are not the same thing – then get back to me.
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August 14, 2010 11:55am
F E Smith

“This is a bit of a moronic request. The protective mechanisms I’ve been referring to are in fact working so of course no cases of light-smacking are going to court.”

When you come to make an argument, try to understand that you need to keep your points clearly in your head so that you don’t mix them up. You said that some things are illegal but permissible. I asked you for case law on that. You then try to say that it refers to light smacking (something that you keep on about but is not in the law), but that is not what you said originally, nor what I was asking about. You made the statement as if it was a settled principle of law, and if it is then there should be case law telling me that some things are illegal but permissible. So don’t tell me that the request is moronic simply because you haven’t understood it. You are so focussed on trying to prove your now very narrow point (and repeating it continually doesn’t make it correct) but you have lost sight of the things you have been saying through this thread.

So, come on, give me some case law on it.

“You’ve said that light-smacking is illegal and if you don’t think it’s permissible then how about YOU show me some case law from the last three years where it has been show to be this. Oh, that’s right, you can’t because in reality it is being permitted.”

Can I just ask you something? Can you show me, without any reference to the issue of smacking at all, that somehing that is forbidden by law is not, therefore, illegal?

Actually, hold on, I have just re-read your last paragraph and you are a bigger fool than I thought. The inconsequential application of force to a child by a parent for the purposes of correction is illegal. We all know that, even if you don’t understand the point. It is against the law. Do you accept that? Ok, so if it is illegal, then anybody who performs such an act prima facie commits a crime. Ok, we have that, or even if you don’t accept that then it doesn’t matter. The next part is this: you seem to be confusing the idea of the illegal act not being prosecuted by the Police with the idea that a lack of prosecution therefore means the law actually permits such an act. But you are wrong. The law does not permit such an act. The relevant subsection of s59 says that, if the police have prima facie evidence that a crime has been committed, they don’t have (i.e. are not required to, it remains an option) to prosecute if the force was inconsequential. As I have pointed out to you, that is within the public interest test (we call it ‘de minimis’) and does not say that Parliament is actually permitting such an act. It remains illegal, but the police discretion has been affirmed.

Now, why was the police discretion affirmed? Because one of the arguments raised agains the amendment to s59 was that the police have a policy of prosecuting all instances of domestic violence and a parent assaulting a child is quite clearly domestic violence. The affirmation is there simply to say to the police that in this instance they don’t have to proceed with a prosecution automatically. I know that they have a discretion in all matters of prosecution, but they choose not to use it (and wrongly so) in instances of violence between family members.

So, to finish off, you are confusing the fact of non-prosecution with the concept of permissibility. Don’t. While you may rail against ‘technical’ points in law, those ‘technical’ points are in fact very important to the law and to the functioning of the Courts.

And you are correct that kill and murder are not the same thing. But none of us have talked about killing, we have talked about murdering. So get your context right next time. Also, can I take it that your point about right and wrong being a human construct means that you view such ideas as subjective and therefore able to be changed according to the will of society?

But I would still like that case law, please. It could come in really useful.
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August 14, 2010 12:35pm
F E Smith

Oh, and this from a summary of an early review of the issue in the media:

The police reports show there has been only one prosecution from 33 reported cases of “smacking”, and 11 prosecutions from 169 cases of “minor acts of physical discipline”.

The single prosecution for smacking since the law change was withdrawn when the primary witness refused to give evidence.

Of the 11 other people prosecuted for “minor acts of physical discipline”, three were discharged without conviction, two got six months of supervision, one got nine months’ supervision, two were ordered to come up if called upon within six or nine months, one was given police diversion, and two cases were pending.

So you are not on as strong ground as you may think.

Then we have the actual police guidelines, which includes the following:

“In addition, while smacking may, in some circumstances, be considered inconsequential, a prosecution may be warranted if such actions are repetitive or frequent, and other interventions or warnings to the offender have not stopped such actions. ”

Indeed, contrary to your view that no offence is committed if a ‘light smack’ is administered, the police guidelines then go on to say

“In such cases Police need to:
• establish whether there is sufficient admissible and reliable evidence that an offence has been committed
• where and when possible, refer appropriate cases to Child Abuse Investigators where they may be investigated further
• depending upon the amount of force used, take into account whether it is in the best interests of the child/family and the public to prosecute i.e. “exceptional circumstances” will justify a departure from the requirements of paragraph 19 of the Police Family Violence Policy. Staff must apply their common-sense. ”

Please note that the police guidelines use the term “whether an offence has been committed” to refer to the situation PRIOR to the conviction of the alleged offender. So the police seem to think that you don’t need a conviction for a crime to have been committed.

Indeed, over the two year period of the initial review, there was actually reported 36 instances of ‘smacking’, or more accurately assault where a child was a victim and their parent the offender, and there were 35 warnings and/or no further action (it is not broken down) and, as noted before, 1 prosecution. So not quite as cut and dried as you are trying to tell us.

Mind you, none of this necessarily shows my view on the issue at all. I just don’t like it when idiots like you, questlove, try to impose inaccuracies upon us through your own sense of entitlement as a left whinger.
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August 14, 2010 1:02pm
expat

Knock Out result to F E Smith.
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August 14, 2010 1:15pm
Kris K

Good on you for your persistence, FES – certainly knocked it out of the park.
This is bad law, and puts the police in an unenviable position of having to interpret the (bad) law, rather than just enforce it. Which was one of the reasons so many of us (on the right, anyway) were against (87%) this law change in the first place. That, and the making of all parents who smack for correction guilty of a crime – whether or not charges or prosecution result.
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August 14, 2010 3:16pm
krazykiwi

@questlove squirms:

Krazykiwi I really can’t be bothered talking to you about your imaginary friend based morals.

Phew – just as well I wasn’t discussing my ‘imaginary friend based morals’ with you then. I did ask ask you a couple of questions, for a second time. I’ll ask again.

1. Are you happy to commit an offence? Is it ok for you to murder someone if your mate, say, a senior police officer assures you that you’ll not be prosecuted?

2. Would you be happy with a law that criminalizes people having overdue library books if it came with an assurance that there would not be prosecutions under that law? Would that be good law? If yes why, if no, how is this different from your interpretation of the s59 repeal?

If you think I’ll let you bail because I’m a Christan and you hate Christians then you are very much mistaken.
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August 14, 2010 3:58pm
questlove

“You made the statement as if it was a settled principle of law, and if it is then there should be case law telling me that some things are illegal but permissible.”

Close, but not quite. My point was that if something is illegal but permissible eg light smacking or some forms of copyright infringement, then it being permissible makes it unlikely it will have gone to court. If you are saying something is not permissible then surely there would be case law.

“So, to finish off, you are confusing the fact of non-prosecution with the concept of permissibility”.

Close, but not quite. As I’ve said quite a few times it’s the protective mechanisms and processes the law goes through that makes it permissible, not that the law says it’s permissible. I’ve agreed it’s illegal on paper.

“Also, can I take it that your point about right and wrong being a human construct means that you view such ideas as subjective and therefore able to be changed according to the will of society?

Right and wrong is ultimately relative to the individual, but yes society as a whole holds the power to determine the right & wrong individuals are subject to.

“Indeed, over the two year period of the initial review, there was actually reported 36 instances of ‘smacking’, or more accurately assault where a child was a victim and their parent the offender, and there were 35 warnings and/or no further action (it is not broken down) and, as noted before, 1 prosecution. So not quite as cut and dried as you are trying to tell us.”

And the one prosecution was withdrawn. I’m only interested in actual relevant prosecutions of “minor acts of physical discipline” where it can be shown that they wouldn’t have been charged if they had the s59 defense.

Nice try though champ, keep up the good work.
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August 14, 2010 4:14pm
F E Smith

“if something is illegal but permissible eg light smacking or some forms of copyright infringement, then it being permissible makes it unlikely it will have gone to court.”

Nope, it will have been considered at some point over the last 700 years, even if there was only obiter dicta on it. The Courts are generally pretty good at giving us a steer on the proper approach to legal concepts. Or what about the textbooks? Dicey or Joseph? Or in from jurisprudence? Maybe Bentham or Dworkin? Or even IP law, given you erroneous copyright example. Come on, there has to be something to support what you say, surely. Otherwise I have to conclude that you are simply stating the law according to questlove.

“As I’ve said quite a few times it’s the protective mechanisms and processes the law goes through that makes it permissible, not that the law says it’s permissible. I’ve agreed it’s illegal on paper.”

Hmmm, so the fact that Parliament simply affirmed the discretion that the police already had, and that they also possess for all other offences (as you wil of course know, the use of the discretion by the police is actually mandatory. Any time they don’t use it can, technically, be judicially reviewed) which means, taking your point logically and to its fullest extent, all things that are illegal are therefore permissible because there is the protective mechanism within the law that requires the police to exercise their discretion. You see, the relevant subsection is in no way a protective mechanism. It is, as I just said, a restatement of currently existing law.

What are the other processes that are unique to this particular offence, by the way? I can’t see what they are.

But, basically, you are saying it is permissible simply because you want to say it is permissible. Right. Gotcha.

“And the one prosecution was withdrawn. I’m only interested in actual relevant prosecutions of “minor acts of physical discipline” where it can be shown that they wouldn’t have been charged if they had the s59 defense.”

The one prosecution was withdrawn because the primary witness refused to give evidence. It wasn’t because the police suddenly had a change of heart. They wanted a conviction for something they defined as ‘smacking’. Now, as you are the only person who has a term of ‘light smacking’, one that cannot be found anywhere within the literature or discussion of the offence, then we have to place what you call ‘light smacking’ within the term ‘smacking’ as the police use it to describe what they correctly note is actually an assault either under s9 Summary Offences Act or s194 Crimes Act. So, they have actually prosecuted a person for smacking, they just didn’t win the case because their witness refused to give evidence. That means they actually got to the stage of at least having a fixture set down (I can’t think what the defence was, maybe that the force applied was not for corrective purposes). So we have at least 36 people who were investigated who probably would not have been had the previous s59 defence existed. Certainly it appears from the police report that in fact it is possible for a person to be investigated and even prosecuted for ‘light smacking’ (and remember we don’t have a definition of it- what you think is light smacking may be seen by a police officer as not being inconsequential. Somehow I don’t think they are going to ring you to discuss it before they make a decision). We also don’t know how many of the 11 other people who were prosecuted successfully may have been able to the old s59 defence. There must be an argument available that the people who were prosecuted, pleaded or were found guilty and were granted a discharge without conviction may well have been able to use the defence succesfully but were no longer able to do so. Therefore you are actually incorrect- people have been investigated and even prosecuted (albeit without police success for reasons beyond their control) under the law as it now stands.

So even your basic premise is actually wrong when you look into the situation.

And your attempts at being patronising in your comments are just laughable.
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August 14, 2010 9:44pm
questlove

“Come on, there has to be something to support what you say, surely. Otherwise I have to conclude that you are simply stating the law according to questlove.”

As it was mentioned early in the page by someone else, there are many misdemeanors that most people are guilty of that go unnoticed and/or unpunished, many of them inconsequential. Also I think that the fact that there have been just two prosecutions and no convictions for smacking events since the Amendment was enacted in June 2007, supports what I’m saying.

“You see, the relevant subsection is in no way a protective mechanism. It is, as I just said, a restatement of currently existing law. What are the other processes that are unique to this particular offence, by the way? I can’t see what they are. But, basically, you are saying it is permissible simply because you want to say it is permissible. Right. Gotcha.”

Naughty naughty. Before the amendment the Police Association were concerned that the police would have to prosecute even minor offences under the law. The amendment upholds existing police discretion, and unique to this particular offence by the way, it embodies in statue a factor that is taken into account in relation to this particular Section, namely the question of inconsequentiality.

“Therefore you are actually incorrect- people have been investigated and even prosecuted (albeit without police success for reasons beyond their control) under the law as it now stands.”

Again, the fact that there have been just two prosecutions and no convictions for smacking events since the Amendment was enacted in June 2007 strongly supports my claim that the Amendment is working as intended.

Thank you, come again.
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August 15, 2010 1:56pm
krazykiwi

Again, the fact that there have been just two prosecutions and no convictions for smacking events since the Amendment was enacted in June 2007 strongly supports my claim that the Amendment is working as intended.

Every parent who has smacked their child since June 2007 has committed an offence under NZ law. There is simply no way to sugar coat this. Yet you try, dismissing the torrent of offending by citing the low number of persecutions. What nonsense.

As I said earlier, responsible citizens concern themselves with not breaking the law. The rest, including you questlove, seem only concerned about being prosecuted and/or convicted.

Oh, still keen to hear your responses to my questions above.
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August 15, 2010 6:39pm
questlove

“As I said earlier, responsible citizens concern themselves with not breaking the law. The rest, including you questlove, seem only concerned about being prosecuted and/or convicted.”

Wrong. Most parents have the opinion that a smack should not be a criminal offense, but in no way does that mean that parents are concerned enough to stop smacking – ‘About two-thirds of both mothers and fathers still smack at least occasionally, despite the 2007 law promoted by Green MP Sue Bradford that banned using force against children for the purpose of “correction”‘ (Herald-DigiPoll survey July 2009). And this is despite all the ignorant scaremongering that parents are guilty of a crime when they are not. The fact that the amendment is working IS relevant.

And I’m not answering your questions because they are nonsensical. You talk about me murdering someone when in reality killing someone is not considered murder until a court determines this. Depending on the country I was in the court would consider various mitigating factors including my sanity. It’s possible that I could kill someone by way of euthanasia and not be found a murderer. So you sort your questions out and get back to me. In the meanwhile don’t go writing any referendums.
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August 15, 2010 9:02pm
MikeNZ

A smack on the bum from a loving parent to an errant child is never an assault.
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August 15, 2010 9:13pm
OECD rank 22 kiwi

Look David, witness the furture for hotels everywhere.

Say goodbye to bed bugs forever.
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August 15, 2010 9:20pm
krazykiwi

@questlove – You talk about me murdering someone when in reality killing someone is not considered murder until a court determines this

There. Right there. The essence of the problem with our liberal-infested society. Lying is not wrong until the liar is convicted for fraud. Killing is not wrong until a conviction ensues. No absolute right or wrong, and everything is up for grabs until a court makes a determination. Sick, sick, sick.

I repeat, every parent who has smacked their child since June 2007 has committed an offence under NZ law. You are happy with this. I am not, and most certainly do not consider this to be evidence of a law working.
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August 15, 2010 9:23pm
F E Smith

You really don’t get it, do you questlove. I am pleased to see that pretty much all of your arguments have disappeared, however, so you have had to accept that you are wrong in pretty much anything. You being left wing and all means that you will still think you are right no matter what the situation, but those of us who read this thread know better.

But you still get things wrong, even now. Let’s look at some:

“As it was mentioned early in the page by someone else, there are many misdemeanors that most people are guilty of that go unnoticed and/or unpunished, many of them inconsequential.”

But you have been saying that this means that somthing that is not prosecuted is therefore permissible. That is incorrect. This also goes to the question of murder. You try to say that something is not murder until the courts have decided it is. Well now, that of course covers every death in the country, whether of natural causes, accident or homocide. None of them result in a conviction for murder until a court has convicted. But that is not what we are saying. We are using the term murder in our hypothetical because that is the offence we are wanting to use. We could say assault, and you could reply in the same way. We could say rape and you could answer the same way. So come to the party and go with the hypothetical. In fact, let’s use a factual basis: the case of Daniel Pearl. Are you saying that, notwithstanding the evidence, his killers did not commit an offence until they were convicted? Or perhaps the killers of Dr Karen Woo have committed no offence because they have yet to be convicted? We have raised a hypothetical and you are being deliberately obtuse by refusing to engage with it. But that is ok, because it shows up the vapidity of your argument.

“Before the amendment the Police Association were concerned that the police would have to prosecute even minor offences under the law.”

But the police association were, of course, wrong. They still had the discretion and always would have had the discretion not to. That said, I suspect the concern wasn’t because they don’t like prosecuting minor offences (which they do all the time) but the public opprobrium that would result from them doing so. But even the Police Assocation were critical of how narrow police guidelines were in restricting the discretion Parliament had confirmed still existed. As I have said all along, the relevant subsection was only necessary because of Police policy regarding domestic violence in the first place. Why you said my comment on it was naughty I have no idea, you not disagreeing with it in your point on the police association.

Your arguments are so fluid and flexible, however, that I suspect you have forgotten just where you are. Just like a typical lefty.

Now you finish off with simply saying that most parents think it is ok. And you will get no argument from me on that point, although I am sure that Sue Bradford will be disappointed that most parents think it is ok. But the fact remains that if you, as a parent, smack your child, even lightly, you break the law.

Which is and always has been my point.

The good thing is that in this long and pointless argument, you have shown yourself up for what you really are and we can safely ignore you.
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August 15, 2010 10:51pm
Luc Hansen

It’s simple boys and girls

Don’t smack or hit your kids.

Just don’t.

Not only is it against the law, as F E smith has pointed out ad nauseam, it’s bad for the child and for your relationship with that child. Believe me, I know.

Mr Smith’s point, I think, is that although the Police can exercise discretion, they don’t have too and often don’t.

And his really big point is that he doesn’t like that law. Well, Mr smith, shit happens.

Mr Smith, you may well be a lawyer, but you also seem to be a particularly nasty person. Why don’t you forget the abuse, as an educated person can and should, and just argue the facts.

Personally, I think the Police should not exercise any discretion, prosecute all, end of story.

But what a lot of hot air about a topic that is now well settled!
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August 15, 2010 11:48pm
Luc Hansen

hj (341) Says:
August 10th, 2010 at 10:42 am
This is rolling around my head :
Cultural identity may be a matter of choice, but what about intergenerational liability for past wrongs or compensations where person of said culture has ancestry from both groups ( victim and perpetrator)?

What I have just done is create a straw man and applied it to a whole population?

Hj, you could try this book: Waitangi and Indigenous Rights by F M Brookfield.
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August 15, 2010 11:54pm
F E Smith

“Not only is it against the law, as F E smith has pointed out ad nauseam, it’s bad for the child and for your relationship with that child. ”

I have said no such thing.

“And his really big point is that he doesn’t like that law.”

Never said that, either. In fact, I have not commented on the propriety of the law once.

“although the Police can exercise discretion, they don’t have too and often don’t.”

And I didn’t say that, either. So that is three falsehoods in one post by Luc Hansen. Fairly moderate, but then, the truth has never stopped you yet, has it Luc.

Go away and play somewhere else.
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August 16, 2010 12:05am
Luc Hansen

From F E smith 10.51pm

But the fact remains that if you, as a parent, smack your child, even lightly, you break the law.

Which is and always has been my point.

From F E Smith 12.05pm

“Not only is it against the law, as F E smith has pointed out ad nauseam, it’s bad for the child and for your relationship with that child. ”

I have said no such thing.

Had a few drinkies, F E?
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August 16, 2010 12:14am
F E Smith

ok, I retract that one- so you have included only TWO falsehoods in your comment.

Still, two out of three is so much better. And missing a comma at this time of night isn’t that bad, unlike willfully telling untruths.

Like I said, go away and play somewhere else.
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August 16, 2010 12:29am
Luc Hansen

From F E smith 9.26pm

just because the police have a discretion not to prosecute for light smacking doesn’t mean they cannot prosecute or will not proseucte.

From F E Smith 12.05pm

although the Police can exercise discretion, they don’t have too and often don’t.”

And I didn’t say that, either.

I’m not sure where my “often” came from, but aside from that, not a bad paraphrase at this time of night?

What’s your brand of whiskey, F E? I’ll send you a bottle.
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August 16, 2010 12:31am
Luc Hansen

And F E, do forgive me for thinking that your obsession with this topic indicated disapproval of the law. Yes, it was presumptuos of me, I admit. So sorry.

By the way, what is your view of the repeal of s59?
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August 16, 2010 12:34am
Luc Hansen

Apologies for the spelling mistake, too. DPF wouldn’t let me edit it.

Why does he do that?!!!
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August 16, 2010 12:38am
Banana Llama

Because you take to much drugs Luc Hansen.

Lay off the LSD.
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August 16, 2010 12:59am
Luc Hansen

Don’t do drugs, at all, sorry, Bananarama..
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August 16, 2010 1:08am
Banana Llama

Well you are missing out then, just remember the Goldilocks rule.
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August 16, 2010 1:20am
questlove

“You really don’t get it, do you questlove. I am pleased to see that pretty much all of your arguments have disappeared, however, so you have had to accept that you are wrong in pretty much anything.”

Not at all. My argument from the start was that parents who smack their children since the repeal are not guilty of a crime and they do not have to worry about being prosecuted and convicted for light smacking. This is correct. You think that because something is illegal it is not permissible. I disagree and think that in a situation where there is an Amendment specific to inconsequential force, and parents are still using this type of force, and police practice shows that people aren’t being convicted for this force – then to say this force is not permissible, only shows that your idea of permissible is under defined.

“In fact, let’s use a factual basis: the case of Daniel Pearl. Are you saying that, notwithstanding the evidence, his killers did not commit an offence until they were convicted? Or perhaps the killers of Dr Karen Woo have committed no offence because they have yet to be convicted?”

The offense is alleged until someone has been declared to be guilty of that offense by the relevant legal body. I’ve never come across a lawyer who doesn’t comprehend that someone being innocent until proven guilty and a right to a fair trial is a pillar of modern society.

“But the police association were, of course, wrong. They still had the discretion and always would have had the discretion not to.”

Naughty naughty. As I said before, the Amendment embodies in statue a factor that is taken into account in relation to this particular Section, namely the question of inconsequentiality. So the Amendment brought something unique to this particular offence.

“But the fact remains that if you, as a parent, smack your child, even lightly, you break the law.
Which is and always has been my point.
The good thing is that in this long and pointless argument, you have shown yourself up for what you really are and we can safely ignore you.”

And you’ve shown that as clever as you think you are, you can’t seem to accept the fact that regarding actions that although inconsequential are still considered offenses in statue; people can nonetheless engage in such actions without concern of being convicted.

Know when to say when.
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August 16, 2010 10:41am
F E Smith

You are nowhere near as smart as you think you are, questlove.

“My argument from the start was that parents who smack their children since the repeal are not guilty of a crime”

Wrong, they are indeed lawbreakers and therefore have committed an offence.

“and they do not have to worry about being prosecuted and convicted for light smacking.”

Apart from the fact that there is nowhere a definition of light smacking other than in your head, that is partially true. Of course, I have always accepted the partial truth of it, I just don’t take it nearly as far as you do. However, the statistics show you are in fact correct only to a certain extent, as even the police guidelines say that if a person is warned several times over what you would call light smacking then they should be prosecuted. Plus, the police have in fact investigated 36 complaints of what they themselves describe as smacking, one of which went to to court. Neither you nor I know what the level of smacking was, so it may well have been what you describe as light smacking.

“You think that because something is illegal it is not permissible. I disagree and think that in a situation where there is an Amendment specific to inconsequential force, and parents are still using this type of force, and police practice shows that people aren’t being convicted for this force – then to say this force is not permissible, only shows that your idea of permissible is under defined.”

Ok, so ‘under defined’ is a meaningless term. But if you mean that I apply the law as it is written, the you are correct. But let’s take that a bit at a time:

“”You think that because something is illegal it is not permissible. I disagree”

We get that, but you are completely incorrect. Your statement is, however, instructive. What it means is that if YOU think something is permissible then it is indeed permissible, whatever the state of the law. That is wrong. If something is illegal then it is not permissible. By the way, your copyright example is wrong as well, as you are misconstruing civil wrongs with criminal acts. You try selling pirated CDs for money and see what happens when you get caught.

“in a situation where there is an Amendment specific to inconsequential force, and parents are still using this type of force, and police practice shows that people aren’t being convicted for this force – then to say this force is not permissible”

Hmm, that seems like I might have answered it a few times already. Your idea of something being permissible has no place in the law of New Zealand. It just doesn’t exist. You won’t find it in any court decision, nor in any statute of the legislature. It exists only in your head. If you can find me that law or court decision, then please show it to me.

“Naughty naughty.’

You keep saying that as if I am deliberately misstating something. I am not, so stow it.

“As I said before, the Amendment embodies in statue a factor that is taken into account in relation to this particular Section, namely the question of inconsequentiality. So the Amendment brought something unique to this particular offence.”

The relevant section AFFIRMS the right of the police to excercise their discretion. It does not CREATE the discretion. The factor that you are talking about, namely the use of the discretion, as a matter of law has to be applied EVERY time the police consider whether to lay charges or not. In no way has anything unique been brought to this offence. It is a sop to the Police and the public.

“regarding actions although inconsequential are still considered offenses in statue; people can nonetheless engage in such actions without concern of being convicted.”

Like having a spliff?

“The offense is alleged until someone has been declared to be guilty of that offense by the relevant legal body. I’ve never come across a lawyer who doesn’t comprehend that someone being innocent until proven guilty and a right to a fair trial is a pillar of modern society.”

Ok, so a few things here.

“I’ve never come across a lawyer who doesn’t comprehend that someone being innocent until proven guilty”

I somehow get the feeling that you think I don’t know my criminal legal theory. You would be wrong in that respect. However, I like this point of yours, as it is a mistake that many people make. Justice Tipping, a judge of the New Zealand Supreme Court, no less, has said that a finding by the finder of fact that a person is not guilty does not mean they are innocent. He said that in a court case a couple of years ago. While at law a person is considered innocent until they are proved guilty, in fact and in practice that is not true. To say nobody who is not convicted in a court of law is not guilty of an offence is simply dumb. I am a criminal defence lawyer and I am the first person to recognise that what you say is just plain nuts, believe me. What you are in effect saying is that you are never guilty of a crime unless you get caught and convicted. Therefore the people who murdered Dr Woo have in fact committed no offence at all and are in no way lawbreakers or murderers. While I understand your argument, I actually have a brain and know better. I’ll tell you what, you take that argument in to any Court up and down the country and see how long it takes before you get laughed out of court. Go on, give it a try. What you are doing is trying to cross-construe the legal theory with the criminal justice fact. I suspect you do so out of ignorance of criminal practice, but I won’t speculate on it because I have no confidence in anything about you other than your spectacular pig-headedness.

But, hold on, then you go on to say “actions that although inconsequential are still considered offenses in statue”, which, incredibly, completely contradicts your earlier point. So make up your mind which it is.

“a right to a fair trial is a pillar of modern society”

Where the hell did that come from. Nobody has said it isn’t. On this blog I have been a very vocal supporter of that concept, both in theory and in practice.

questlove, you are an idiot. And you are an idiot who just doesn’t know when he/she is beaten. Like most left wingers, you think that if you say something often enough then it will be true. Regardless of how often you say it, you will still be wrong. While you may think that you are engaging in debate, all you are doing now is repeating yourself and you are bringing nothing to the table that actually proves your point. You have no case law, no textbook extracts, no legal writings. You are the one making the novel assertion that even if something is illegal then it is permissible if you don’t get prosecuted. I want some real law on it, and despite your views, your views do not have force of law.

You are are worse than a fanatic- you just cannot see that you are wrong, convinced as you are of the correctness of your own views.

So pony up on the law or shut the hell up.
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August 16, 2010 11:41am
alex Masterley

Crikey,
Turn your head for a moment and you miss some fun.
Some people don’t know when to give up. This thread is a bit like watching the Black Knight scene in “Monty Pythons Holy Grail”…
Oh and FES it wasn’t crime, it was “ahem” leaky home stuff in the WHRS.
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August 16, 2010 12:12pm
F E Smith

hey alex,

I think questlove has got the point where he/she just doesn’t know they have lost. Typical lefty.

And on the other point, well, that is one area I haven’t done yet. At least you are doing it in a worthy (and remunerative) cause.
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August 16, 2010 12:19pm
questlove

“Wrong, they are indeed lawbreakers and therefore have committed an offence.”

You’re starting to look very foolish now. We’ve been over the fact that to be “guilty” of a crime, a judicial body must first determine this.

“Your idea of something being permissible has no place in the law of New Zealand. It just doesn’t exist. You won’t find it in any court decision, nor in any statute of the legislature. It exists only in your head. If you can find me that law or court decision, then please show it to me.”

If you’re saying that ‘permissible’ is a specific legal term that means “legal” then that’s fine. But you claim not to be a dim wit but you can’t get my point that inconsequential force is in fact being allowed? There is an Amendment specific to inconsequential force, and parents are still using this type of force, and police practice shows that people aren’t being convicted for this force – inconsequential force is being allowed. Can you not grasp that if inconsequential force is not being allowed then we would at least see people being convicted for it?

“The relevant section AFFIRMS the right of the police to excercise their discretion. It does not CREATE the discretion. The factor that you are talking about, namely the use of the discretion, as a matter of law has to be applied EVERY time the police consider whether to lay charges or not. In no way has anything unique been brought to this offence. It is a sop to the Police and the public.”

Naughty naughty! Before the affirmation of police discretion in this Act their discretion didn’t have any real statutory basis to it. It also enshrines in statute the particular criteria of inconsequentiality, which wasn’t explicit in the Solicitor-General guidelines.

“Justice Tipping, a judge of the New Zealand Supreme Court, no less, has said that a finding by the finder of fact that a person is not guilty does not mean they are innocent. He said that in a court case a couple of years ago. While at law a person is considered innocent until they are proved guilty, in fact and in practice that is not true. To say nobody who is not convicted in a court of law is not guilty of an offence is simply dumb.”

The judge here was talking in context of AFTER the judicial determination. So thank-you you’ve just affirmed my point that ‘innocent’ and ‘guilty’ can only be determined by a judicial body. So yes, a more accurate statement would be “Not guilty until found guilty by a judicial body”, as going into a trail a person is neither innocent nor guilty . Of course a Judge’s not guilty ruling doesn’t mean that they are innocent (*cough*David Bain*cough), the point is that it does mean that they are not guilty (unless there is another judicial process to go through). It’s cute though that you think not innocent means guilty.

“I am a criminal defence lawyer and I am the first person to recognise that what you say is just plain nuts, believe me. What you are in effect saying is that you are never guilty of a crime unless you get caught and convicted. Therefore the people who murdered Dr Woo have in fact committed no offence at all and are in no way lawbreakers or murderers.”

See you’re a bit out of your league here. Someone is not guilty of a crime unless a judicial body determines this. It’s absolutely ridiculous to assert that someone is guilty just because you say they are or just because they have been accused.

“But, hold on, then you go on to say “actions that although inconsequential are still considered offenses in statue”, which, incredibly, completely contradicts your earlier point. So make up your mind which it is.”

Like I said, someone is not guilty of an offense until a judicial body determines this., until then it’s just an alleged offense. It’s really not that hard champ.

“questlove, you are an idiot. And you are an idiot who just doesn’t know when he/she is beaten. Like most left wingers, you think that if you say something often enough then it will be true. Regardless of how often you say it, you will still be wrong.”

You really are a bumbling fool who comes across like you’ve got small man syndrome. I am right that parents who smack their children since the repeal are not guilty of a crime and they do not have to worry about being prosecuted and convicted for light smacking.

You might win some but you just lost one.
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August 16, 2010 3:09pm
F E Smith

Why do you keep embarrassing yourself?

“We’ve been over the fact tha

“Before the affirmation of police discretion in this Act their discretion didn’t have any real statutory basis to it. It also enshrines in statute the particular criteria of inconsequentiality, which wasn’t explicit in the Solicitor-General guidelines.”

No, there isn’t a statutory basis, because it is in the Common Law, which remains a part of the law of the country. That means that it is within the case law. And the inconsquetiality part is covered by the legal concept of “de minimis” which is something that must be taken account of also. So come on, where is the case law that supports your theory? You don’t have any because it is the law according to questlove.

“The judge here was talking in context of AFTER the judicial determination.”

No, it was in general application. A person can commit an offence without a court finding them guilty of committing an offence. It is very simple and you show yourself up by not getting it. What you are saying is that if the court has not found them guilty of an offence then they have not committed an offence. So the person who I got of charges of growing cannabis, despite being caught with it in their house and later admitting the cannabis was theirs, but got off because of an improper search seizure actually committed no offence? They did nothing wrong? They have not broken the law? Or are you going to say that there is no such thing as right and wrong, they did break the law but they didn’t commit an offence? Come on, what is your opinion?

“I am right that parents who smack their children since the repeal are not guilty of a crime and they do not have to worry about being prosecuted and convicted for light smacking. ”

And despite your complaints about me being narrow in my interpretation, you try to do the same thing. Just with less success. You keep on using the word crime, while I use the word offence. The legislation also uses the term offence. By using the term crime you limit it to an offence for which the offender may be proceeded against by indictment. I use the term offence because that does not limit me to the Crimes Act in this instance. In cases of what you call (but still haven’t defined) ‘light smacking’ the Summary Offences Act would be used (see the Police Guidelines) so even if the person was convicted of the offence then they still would not have, technically, committed a crime. Just an offence. Furthermore, don’t forget that the presumption of innocence is actually a procedural concept designed to prevent the wrongful conviction of the innocent, it is not a statement of fact. To construe it as a statement of fact requires a suspension of reality. You appear to be trying to do that. Moreover, under the New Zealand Bill of Rights Act the presumption only attaches to you once you have been charged with an offence. So a person who has not been charged does not have the presumption in their favour from a purely legal viewpoint. It does not mean in law that they are ACTUALLY innocent. Indeed, I have now found the quote from Justice Tipping, which is that “An acquittal is not, however, a declaration of innocence. It means no more than that the case against the accused person has not been proved.59 An acquittal does not bar allegations that the person concerned is actually guilty.” (Rogers v TVNZ 2007 NZSC) Which contradicts your point that a person is innocent until proven guilty. The upshot of this is that a person can in fact be guilty of an offence both before and after a court case, whether or not they have been charged and whether or not they have been convicted.

Actually, I have just been talking to another barrister about your views and we had a good laugh about them. Keep up the good work, it is very entertaining.
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August 16, 2010 10:10pm
questlove

“No, there isn’t a statutory basis, because it is in the Common Law, which remains a part of the law of the country. That means that it is within the case law. And the inconsquetiality part is covered by the legal concept of “de minimis” which is something that must be taken account of also.”

It seems some barristers agree with me.

“The significance of the amendment is that it embodies in statute, quite clearly, the discretion of the Police not just in relation to this particular offence but in a more general way.” http://wynnwilliams.co.nz/pub_jj_01.htm

“No, it was in general application. A person can commit an offence without a court finding them guilty of committing an offence. It is very simple and you show yourself up by not getting it. What you are saying is that if the court has not found them guilty of an offence then they have not committed an offence.”

No I’m saying that a person is not guilty of an offense until the court has found them to be so. Until such a time the offense is alleged.

“So the person who I got of charges of growing cannabis, despite being caught with it in their house and later admitting the cannabis was theirs, but got off because of an improper search seizure actually committed no offence? They did nothing wrong? They have not broken the law? Or are you going to say that there is no such thing as right and wrong, they did break the law but they didn’t commit an offence? Come on, what is your opinion?”

In this situation the offense is still alleged. Just because the police bring charges for an offense does not mean that someone is guilty of that offense. This is for the court to decide. Also we’re talking about ‘guilty’ in the legal sense of the word, not some subjective moral system like Christianity sorry.

“You keep on using the word crime, while I use the word offence. The legislation also uses the term offence. By using the term crime you limit it to an offence for which the offender may be proceeded against by indictment. I use the term offence because that does not limit me to the Crimes Act in this instance.”

I’ve been using “crime” because that’s the word ‘krazykiwi’ used ie. “Every parent who has smacked their child since the repeal is guilty of a crime”. Changing to the word ‘offense’ doesn’t make my claim wrong. I am still right that parents who smack their children since the repeal are not guilty of a offense. This is for the court to decide.

“Furthermore, don’t forget that the presumption of innocence is actually a procedural concept designed to prevent the wrongful conviction of the innocent, it is not a statement of fact. To construe it as a statement of fact requires a suspension of reality.”

I’m not saying that it is necessarily a procedural concept, but I am saying that as a matter of law, someone cannot be guilty of something that they have not been charged and ruled to be guilty of.

“So a person who has not been charged does not have the presumption in their favour from a purely legal viewpoint. It does not mean in law that they are ACTUALLY innocent.
Indeed, I have now found the quote from Justice Tipping, which is that “An acquittal is not, however, a declaration of innocence. It means no more than that the case against the accused person has not been proved.”

I not sure if you don’t understand my clarification or that you just ignored it. Just because someone is not innocent does not mean that they are guilty of an offense. To be found guilty of an offense the case has to be proved .

“An acquittal does not bar allegations that the person concerned is actually guilty.” (Rogers v TVNZ 2007 NZSC) Which contradicts your point that a person is innocent until proven guilty. The upshot of this is that a person can in fact be guilty of an offense both before and after a court case, whether or not they have been charged and whether or not they have been convicted.”

This is you being absolutely ridiculous again. I can’t believe that you seriously think this. In no way does the continuance of allegations of guilt equate to someone actually being guilty of an offense. Not innocent != guilty. Someone cannot be legally guilty of an offense until a court rules this.

You keep up this crap and I’ll be enjoying schooling you for a while yet.
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August 17, 2010 11:20am
F E Smith

Hey, questlove, was wondering when you would turn up? Still no case law on it yet? Too bad. I see you are also disagreeing with Justice Tipping now. Brave you. Anybody who has appeared in front of him knows that it takes some arrogance to consider themselves better than one Sir Andrew Tipping, Judge of the Supreme Court of New Zealand. Of course, being a lefty you would probably consider yourself better than Einstein if he disagreed with you.

Now, to business:

The discretion the police have is a common law one. It applies to the entire executive, which the police form part of. As I have said all along, subsection 4 of s59 only re-states what was already law under the common law. In that sense the subsection is nothing new from a legal viewpoint. Only somebody who wasn’t aware of the pre-existing basis of the law would consider it to be new.

And of course you can be guilty of an offence without being convicted of it. You criticised me for being technical, but now you want to hide behind one part of criminal procedure? Hell, questlove, I expected more of you than that! Where is your jurisprudential theory, your historical basis for your viewpoint? Oh, that’s right, you don’t have one.

“Just because the police bring charges for an offense does not mean that someone is guilty of that offense.”

You don’t say!

What about when the Court finds a person guilty of the offence when they are actually innocent- David Dougherty, for example. Does that mean that he was actually guilty of the offence because the Court said he was? Listen, it is alright to admit you are wrong here.

“as a matter of law, someone cannot be guilty of something that they have not been charged and ruled to be guilty of. ”

Oh, there we go again; as a matter of law a person cannot be liable to a penalty for an offence unless it has been proven guilty beyond reasonable doubt. Hmm, well, lets see now, that would be correct but to think that is the sole way of looking at the situation is silly and, but ignores the issue that they may be guilty as a matter of fact. You can keep up your amateur, self schooled legal knowledge all you like and you will still be wrong. You see, I actually work in the system and have had to study it from more than a theoretical viewpoint. Moreover, you still ignore the point of the presumption of innocence. It is procedural, there to make sure trials are conducted fairly.

Oh, and the crew at Wynn-Williams are all solicitors, not barristers. There is a difference, in case you didn’t realise.

“I’m not saying that it is necessarily a procedural concept, but I am saying that as a matter of law, someone cannot be guilty of something that they have not been charged and ruled to be guilty of.”

But, hooray! I have found where you are going wrong. You haven’t read the law properly. A person can indeed be guilty of an offence even if not found so in a court of law. That is a matter of fact, not law. You ignore this. What they cannot be is liable to a penalty unless found guilty in a court of law! You, my friend are both mixing your terms and trying to fuse a factual concept with a legal concept and so have been causing confusion to yourself. You see, the concept of guilt is not limited solely to the legal concept of a finding of guilt. It is very possible for a person to be guilty of an offence and still never be convicted in a court of law. They can instead be factually guilty (you know, have actually done the illegal act) whilst being forever remaining legally unconvicted. That does not mean that, as a matter of fact, no crime was committed, only as a matter of law. You see, if you break the law then you are a lawbreaker. If you smack your child for the purposes of correction, no matter how lightly, wihout their consent, then you still break the law. You still commit an illegal act. You are guilty of an offence as a matter of fact. That is exactly what Justice Tipping means: a lack of a conviction does not necessarily change the fact of guilt to one of innocence. My client was indeed guilty of growing cannabis. We all know that. The judge knew it, I knew it, the cops knew it and my client knew it. Admitted it, even. But, as you say, at law they were never convicted. That simply means they could not be liable to a penalty at law. It did not mean that they had not broken the law, nor did it mean that they had not grown cannabis. You can bring all the legal isolationism to the debate all you want, but you will still be wrong as a matter of practice and of fact. And without understanding both sides of the debate you will never truly understand criminal law.

Now, can you please go back and read what I have been saying all along. You will notice that I have not brought any Higher Power into the conversation at all, so you can leave that point to one side. You will also notice that your stupidity has lead to you thinking I am saying far more than I am actually, or have ever, been saying. But that is the nature of left wingers, they tend to get confused when more than one person opposes them and simply assume they all think the same.

You see, I took issue with you saying, incorrectly, that ‘light smacking’ of a child by a parent “remains permissible”

I said that “If the light smack was done for the purposes of correction then it is an illegal act and is not justified.” Now, I am sure you will now agree that I am correct. The act is illegal, it is not permissible. It may not be prosecuted, but that does not make it permissible. You also tried to say that a prosecution for ‘light smacking’ would be ‘squashed’. Which is again wrong. The Court will not review the decision of the officer in excerising their discretion when deciding whether the evidence proves an offence beyond reasonable doubt. That is not part of the role of the finder of fact. Only the High Court could do that in a judicial review.

Then you tried a different tack, with “An inconsequential application of force provides no evidence, as this is what defines inconsequential. So the only way that the police could ever bring a case is if they had evidence, and so the force would not be inconsequential in the first instance.”

Which is wrong as well. I corrected you on that. And you moved your position again.

And you have continually moved your position until you rather petulantly state the bleeding obvious and try to say that I don’t know the law. Mate, I work with this every day, so I have some idea of it. I also know that whatever you say, a person can in fact be guilty of an offence even if they have never been convicted of it. That is reality.

You can try to maneuver your way around this again, but you go back and read what I have been saying all along and you will see that I have been consistent the whole way through. You, however, have left your original premise far behind because you have misunderstood what I and others have been saying. Sadly, that seems to be pretty normal for left whingers.

You have painted yourself into a corner and all those reading this have seen it. Even Luc, who I disagree with as a matter of course, has seen the consistency in my argument. You are wrong, and you are obnoxious.

But as long as you keep going, I will be here! I find this very entertaining.

So, come on, give me the case law for your original positions re s59, leftard.
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August 17, 2010 12:28pm
alex Masterley

So do I.

This is livening up a tedious day.
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August 17, 2010 12:54pm
questlove

“I see you are also disagreeing with Justice Tipping now. Brave you. Anybody who has appeared in front of him knows that it takes some arrogance to consider themselves better than one Sir Andrew Tipping, Judge of the Supreme Court of New Zealand. Of course, being a lefty you would probably consider yourself better than Einstein if he disagreed with you.”

How am I disagreeing with him? He said “An acquittal is not, however, a declaration of innocence. It means no more than that the case against the accused person has not been proved.” In no way at all is he saying that not presuming innocence makes someone guilty. He doesn’t even mention anyone being guilty! In fact even states it has not been proved yet. Your amateur interpretation here is incompetent.

“You haven’t read the law properly. A person can indeed be guilty of an offence even if not found so in a court of law. That is a matter of fact, not law.”

I haven’t read the law properly? Ok, you show me where the law that says a person can be guilty of an offence even if not found so in a court of law. And show me where it says who gets to decide this. Because it to me like you’re not talking about a legal concept at all.

“You see, the concept of guilt is not limited solely to the legal concept of a finding of guilt. It is very possible for a person to be guilty of an offence and still never be convicted in a court of law. They can instead be factually guilty (you know, have actually done the illegal act) whilst being forever remaining legally unconvicted.”

Hold up. You slimy little weasel. I see what you’re doing. You’re trying to take a subjective moral consideration outside of the legal definition; and trying to sneak it in that this is what we have been referring to all along. We’re talking about a matter of law you assclown. I couldn’t give a shit if you think someone is guilty of an offense “as matter of fact”. We are talking in context of the judicial system.
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August 17, 2010 2:25pm
Nomestradamus

Questlove:

It is reasonably clear to any observer reading this thread that your respective debating positions are entrenched. F E Smith has disclosed that he/she is a criminal defence barrister. So, in the interest of balance and transparency, what legal credentials or relevant real world experience do you bring to this debate?
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August 17, 2010 2:57pm
Kris K

Wow … I mean WOW!
I’m almost sorry I raised the Energiser Bunny™ comparison earlier … I mean to say, even the Energiser Bunny™ gets tired … EVENTUALLY. Perhaps Quest-for-Knowledge is in fact (but perhaps not legally) nuclear powered?! A living breathing WMD in our very midst!!! I hope you’re wearing your lead apron, FES.
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August 17, 2010 5:02pm
F E Smith

“subjective moral consideration ”

No, just a hard factual reality. That is what I and the others have referred to all along. It means that a person has broken the law, has committed an offence. It does not mean they are necessarily liable to a penalty at law because of course they may not have been found guilty in Court. But they have still broken the law, which is, you know, an offence. This appears to be something you can’t seem to grasp. Go back and re-read my last post. Everybody gets it except you, leftard.

So, come on bitch, show me the case law!
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August 17, 2010 11:29pm
questlove

I’m gong to break it down nice and simple for you so you don’t get confused or activate weasel mode.

When I refer to light-smacking, I am talking about inconsequential force. I said that although this force is arguably (ie you don’t hold the opinion that the Amendment embodies in statute a particular discretional consideration) illegal in statue; it can be ‘permissible’. Your semantical position was that ‘permissible’ means ‘legal’ and nothing else. So I changed the term to ‘allowed’ or ‘is let to happen’.

You continually ask me for ‘case law’ that inconsequential force is being allowed to happen. I’ve pointed out that the fact inconsequential force is being allowed to happen, the resulting lack of prosecutions makes this difficult. Maybe one of the two unsuccessful prosecutions for ‘smacking events’ in the past three years is relevant case law. I don’t know the detail of those cases. I did however back up my claim with evidence that the great majority of parents are still using inconsequential force and that despite this police reviews show that there have been no convictions for ‘smacking events’. You are yet to show that inconsequential force is not being allowed to happen in practice even though if it were not being allowed to happen there would surely be plenty of case law of people being convicted. (Show me the reported decisions bitch)

As or my claim that ‘parents who smack their children since the repeal are not guilty of a offense’; you’ve now said that this might be true but you were actually talking about guilty ‘as a matter of fact’. Haw Haw. So maybe my claim should be ‘legally speaking, parents who smack their children since the repeal are not guilty of an offense so don’t have to worry about being sentenced for that offense or suffer any of the legal consequences of that offense. But, they are guilty as a matter of fact, as determined by omniscient lawyer F E Smith and his Christian fellowship.’

How do you like those apples?
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August 18, 2010 9:33am
F E Smith

I have never asked you for case law that inconsequential force is allowed to happen. Such case law would be useless to me. I want case law to support your claim that what is illegal is permissible, or even allowed, or even ‘is let to happen’ as a concept at law.

You won’t provide it for me. Surely over the last 700 years somebody has considered such an event and crafted a judgment from which you take your position?

And just because everybody breaks the law does not mean they are not law breakers. Doesn’t work like that, you see. Moreover, you haven’t really given me any evidence that it is happening because all you have recourse to is a report or so. You have yet to point me to any real statistics on the use of inconsequential force and whether people are still using it as a means of correction or not. I would expect such use of force to lessen over time, as that was the idea of making it illegal. You know, people do have the odd habit of wanting to keep the law from time to time. No matter how much you mock, I have been consistent in my arguments, unlike you.

Anyway, I have never claimed that inconsequential force is not being allowed. I simply said it was illegal. You disagreed strongly with that point by saying it was permissible. Well, as I said, I want case law on that point as a matter of law (not re smacking, just generally). Also, you still haven’t addressed the lack of protections if a private prosecution is undertaken, subsection 4 only applying to the Police.

Of course, what worries me is that when my clients sit in my office and tell me they are guilty of an offence they are charged with, according to you I will have to say that no they aren’t, because they haven’t yet been found guilty or pleaded guilty in Court. Hmm, can you see the problem with that? You see, that is what the cannabis person told me, but then I got them off on a point of law. Actually, that last part reminds me of a bit of criminal justice terminology- it is called ‘getting away with it’. And that is exactly what my client did. They were guilty, but were never convicted. They knew that, even if you cannot get it.

Moving on, I must say that from one who has been trying to argue pure law in the face of reality, your last paragraph is a bit of a laugh. But, even so, you can’t help but continue to get it wrong. What you really should say is that ‘legally speaking, parents who smack their children for the purposes of correction, where the consequences of such an act is inconsequential in the eyes of an investigating police officer, do not have to be prosecuted by the Police’, or, as you seem to want it, ‘a parent who has used inconseqential force for the purpose of correcting their child is unlikely to be liable to a penalty at law’. Of course, using the words ‘since the repeal’ is meaningless and of course the parent has still broken the law.

Oh, and where have I said that I am a Christian? Nothing wrong with being one, of course, but nowhere have I said that I am part of that group. Unless you simply want to say that some of those who have agreed with me are Christians and therefore they are my ‘fellowship’? I don’t think that would necessarily be correct, as I am not sure all of them are in fact Christians. Not that it matters one jot. Still, it simply shows you up as a lefty again, trying to tar us all with what you perceive as an insult. Doesn’t work as I am not insulted by it.

But this is getting boring now. I agree with Nomestradamus, you should disclose your background in all of this. I thought you were a cop to begin with because of your touching belief in police guidelines having force of law, but now I wonder if you are either an activist with either a first year legal system uni paper, or, worse, a law student or lawyer. I wonder about the latter because you mentioned you worked with some criminal lawyers. Of course, I wouldn’t be having this debate with them because they understand how the system works. You remind me of my students when I tutored Crimes at Law School for a few years. Ok on the theory, but with no understanding of how it is practically applied.

But look at this- you have managed to go for so long without quoting a sceric of actual law! Everything has come mostly from either your own point of view, a UN report or, briefly, Wynn-Williams & Co. Give me the case law, bitch!

You have given your arguments away so many times, and changed your point so many times, that on this site I suspect you no longer have any credibility. Much as I hate to say it, have a read of Luc Hansen’s posts to see how to at least use proper sources to back up your argument. As I have done throughout this argument.

You remain a leftard, and I pity you that. And you are dull, and I’ve grown tired of you.
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August 18, 2010 10:06am
questlove

“Anyway, I have never claimed that inconsequential force is not being allowed. I simply said it was illegal.”
“a parent who has used inconseqential force for the purpose of correcting their child is unlikely to be liable to a penalty at law”

Glad we’ve got that sorted.

“You remain a leftard, and I pity you that. And you are dull, and I’ve grown tired of you.”

Yeah yeah, this is where I call you a right-wing nut job who’s lost in a sea of artificial objectivism blah blah.
I’m tired of you too. Goodbye
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August 18, 2010 10:56am

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