Wednesday, May 20, 2009

Jimmy Mason would have been convicted even if he had not punched his son in the face, and was charged under the old law

Today , the media reported that Jimmy Mason was convicted of assault for hitting his four year old son, in a case viewed as a test case on the anti-smacking legislation.

It is nothing of the sort.

The court report is here and the case has drawn some debate over at Public Address.

One of the charges Mason faced was for punching his son in the face and "flicking" his ear. Most people seem to think that Mason should have been found guilty for punching his son the face whatever the law - therefore the anti-smacking legislation is irrelevant to this case.

But what about the "flick on the ear". Well, just as the Timaru lady's horse whip was a riding crop, this flick was actually a pull- a good yank. Mason admitted that offence, saying that he was correcting - he calls it discipline - his child. He blew the only two defences he had.

You can't get off an assault charge if you admit you did it, or make a plea on the grounds of corrective discipline. Mason did both. If the charge was just the ear pull, the police would not have have pressed charges if they deemed it to be inconsequential correction. However, had they deemed it to be non-corrective assault, they may well have and Mason would have been convicted.

So I have to take issue with Deborah Morris-Travers of The Yes Vote who, in the context of this case, assumes the new child discipline legislation makes it clearer for judges and juries. First, the law is hardly new. It's been around for a while now. Secondly this case has nothing to do with the anti-smacking legislation, so it can't be part of the test of that assumption, purely because child discipline legislation is as irrelevant as the 1955 Eden Park Trust Act in in this case - even under the previous Section 59 of the Crimes Act.

updateBut I do think it is relevant that a woman cop was walking past at the time, and spoke to Mason. According to the media report of the court case, Mason told her at the scene that he punched his older son. If it was good enough for her to relay that conversation in court (as I believe she did), surely it was good enough for her to tell cop who gave Mason the initial warning what Mason told her. Then charges could have been pressed at that point before Mason blabbed to the media.

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Blogger Steve Withers said...

I agree S59 - old or new - isn't strictly relevant in the case of a person/parent punching a child in the face. But that isn't what Deborah Morris-Travers was saying.

I'm assuming you have read the new legislation, Dave. It does "make it clearer" than the old law, just as Deborah Morris-Travers says.

I include the text below. This is far and away more clear than the old S59 was.

S59 – What the law now says

59 Parental control
(1) Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances and is for the purpose
of —

(a) preventing or minimising harm to the child or another person; or

(b) preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or

(c) preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or

(d) performing the normal daily tasks that are incidental to good care and parenting.

(2) Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.

(3) Subsection (2) prevails over subsection (1).

(4) To avoid doubt, it is affirmed that the Police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a child in relation to
an offence involving the use of force against a child, where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.

May 21, 2009 at 1:00 AM  
Blogger Swimming said...

No what Deborah Morris -Travers says is the new law makes it clearer for judges and juries because of the removal of the legal defence. She is making stuff up.

This is because there is has no evidence to make that claim because nobody has appeared before that judge and jury to demonstrate that clarity, because(a) their case has been upgraded to assault - ie not correction or reasonable force - where Section 59 would not apply and never did apply, or (b) they have not been prosecuted so they haven't appeared before the court to test Section 59.

So she's making stuff up. Needs to try a little harder with a better argument.

May 21, 2009 at 2:30 AM  

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