Posts by Brickley Paiste
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The murder of Dr George Tiller in Kansas yesterday can only be regarded as American domestic terrorism.
Could you define terrorism for us, Russell? Our legislature once did but then they repealed because it would have given the term a finite meaning. I'd rather see the killing -- it isn't murder yet because no one has been convicted -- as a crime.
Surprised that you would be shocked at Boyle's fate, which, it seems to me was entirely predictable.
Agreed. The whole thing was a send up. The mock surprise on the judges' faces after she first sang said it all.
And there was something in that televised audition that transcended mere commerce.
You're taking the piss, right?
All reality television...
I love that an oxymoron has become an accepted part of our cultural lexicon. All television is unreal.
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What else does it have going for it?
Nothing. Most international tourists follow the golden rule of "after you land get the hell out of Auckland". Why would domestic visitors be any less lucid?
Surely the idea is to promote Auckland as a miniature New York, rather than an oversized Upper Hut.
Errr, what? Like how miniature? Pimple, miniature? Truth be told, Auckland is an oversized Upper Hut.
Thanks for the draft suicide guidelines. Very interesting. Is there any concrete evidence that demonstrates that reporting suicide is bad or increases suicide? If there isn't, then why curtail freedom of speech on that basis?
It reminds me of studying Hamlet in High School. I recall the teacher skimming over the actual meaning of the "To be or not to be" speech -- a speech, of course, about suicide. It wouldn't be on to have impressionable teens learning about, uhm, an impressionable sorry-for-himself teen like Hamlet. Of course, Hamlet doesn't kill himself but does manage to be poisoned by his own sword and mind f*cks Ophelia into committing suicide.
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Incidentally, I think there may have been issues above between 'offence' as in legal-definition-of-a-crime and 'offence' as in an particular illegal incident.
I reckon something like that was going on. But that was fun. Thanks.
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What about compulsion!??!? It exists for all crimes including beating the poo out of a child. So, assault isn't a crime?
That's the second time you ignored my point, counsel.
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..
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.
You have to be wrong there, dude. Yes. There is an offence whether the cops notice or not. The accused is only guilty of a crime if no defence has been successful. There is still an offence.
You're arguing that crimes/offences have an existential relationship to the availability of defences. That's whack.
Take rape. Under-reported and under-prosecuted. You could argue compulsion against rape. But there has still been , whether reported or not, whether prosecuted or not, an offence against the criminal law.
The tree makes a sound.
You're examples blur a simple issue.
Answer my point about compulsion.
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You're right about the evidential burden. But you're getting a shade technical.
You have, however, clarified the argument helpfully.
Police discretion is a different thing. Crimes are one thing. Offences that can lead to arrest and charges are another. I think that gets to the nub of things.
1. Action
2. Action comes to the attention of police
2a. Police exercise discretion against laying charges; or
2b. Police lay charges
3. Therefore on 2b: action committed was an alleged offence.
And you ignored my point about compulsion.
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.
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.
More broadly, and returning to my original point, the legislation was about taking away a defence. That's it. Somewhere in that, the entire discourse became about whether or not people should be smacking their kids around or punching them in the face. It should have been about whether, when the law intervened, defendants should have recourse to a defence that they would not have had if they had assaulted an adult.
You will at least concede that point got lost in the mix and that the repeal of s59 was directed to that issue, no?
In the final analysis, your point that s59 meant that smacking was legal has to be wrong. It might have informed the use of police discretion and it might have provided a successful defence at trial. But smacking was still an assault and therefore an offence.
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.
Will do. Thanks.
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Arg. Grey and cool. I just can't do it...!
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I think you're wrong AND we're talking at cross-purposes.
"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."
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.
You're argument makes it sound as if the action is legal and then there are some legal hoops. Wrong. Legal hoops -- then legality.
So, in effect, you're committing the same flaw of reasoning as that newspaper in Auckland.
"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."
Again, legal provided the defence was established and not before. I suppose, using the principle of charity, that you might be arguing that it was not illegal because a judge/jury had not pronounced on the guilt of the accused. However, assault/murder is still an indictable offence under the Crimes Act and anyone arrested would have shown probable cause or a warrant would have convinced a judge that there was a reasonable chance of a successful prosecution. So yes, in reality, at the time of the offence the action was allegedly illegal.
However, that does not mean that the action was legal at the time it was committed because no one had decided that issue yet -- hundreds of years of settled law or not.
"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."
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...
A defendant could still argue compulsion against a charge of assaulting a child. Does the existence of compulsion as a potential defence now make smaking legal again. On your argument, it would have to. You've gotta wear that one at the very least.
I'm not sure how much further I can take this. Simply put, the existence of a defence does not a legal action make -- that is until the defence has been run successfully.
"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.
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Sorry, that should have been "Graeme" not "Graham" and I didn't know how to make your post look all grey and cool...
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Graham:
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.
No, I think that is incorrect.
First, before, the law said that a defendant could run a defence (reasonable force in the circumstances or something equally odious). The success of that defence was not pre-ordained. Second, self-defence is not "something legal" or otherwise. It is a defence that can be run or not run depending on the facts. 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.
You are conflating the existence of a defence with the legality of a specific action. They are not the same.
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What I found most depressing about the Herald piece this morning -- and what I have most depressing about the whole 'smacking debate' all along -- is that the effect of the law (a repeal of a defence) was explained by way of quote from Sue Bradford herself.
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.
Is this complicated? Am I on crazy pills? How did King Canute cope?