OPEN LETTER TO MR JOHN KEY

----- Original Message -----
From: David Lane
To: emma.holmes@parliament.govt.nz
Cc: bill.english@parliament.govt.nz
Sent: Wednesday, May 09, 2007 8:53 AM
Subject: OPEN LETTER TO MR JOHN KEY


Urgent Attention
John Key
National Party Leader

OPEN LETTER:

CALLING ON ALL NATIONAL MEMBERS TO VOTE AGAINST SUE BRADFORD'S FLAWED BILL

Dear Mr John Key

The Eathorne's tragic case (see press release copied to all National MPs below) shows what can happen when police discretion is misapplied - charges (of assault on a child under 14 years s. 194 of Crimes Act) were pursued for inconsequential domestic force - and good parents were criminalised (convictions and heavy fines were issued).

Of course this (unsound use of discretion) can happen under the current Crimes Act relating to s. 194 but at least a s.59 defence is actually open to parents NOW if they find themselves facing charges for using "unreasonable force" in the correction of their children (assault) and they believe they have done nothing more than apply reasonable force for correction in the circumstances. Under s. 59 (2) "The reasonableness of the force used is A QUESTION OF FACT". Under Bradford's flawed bill, even with the new amendment, in Court cases where it can be established that some element of correction was involved the question of "reasonableness" is NOT a question of fact that can be examined by the Court.

If Bradford's flawed bill becomes law there is NO defence open to such a parent, IF police, following a misapplication of their discretion, lay charges for force used for correction. (We are assuming here that there are facts that provide compelling evidence contra the police. that in reality the incident was (1) "inconsequential" in terms of force used and (2) not in the "public interest" to pursue. The problem is that 1 & 2 remain undefined! and these facts CANNOT be tested in Court).

Under Bradford's legislation - once in place .......

A good and honest parent charged with assault for using what he/she genuinely believed at the time was only inconsequential force for correction, would be doing wrong not to plead guilty in Court of committing an "offence" under the Crimes Act. Why? Because the use of all force in such circumstances involving correction is defined as a criminal "offence" - an ILLEGAL act. There is NO defence open to them. They have no alternative if they wish to be dealt with leniantly by the Court. Like the Eathornes they face the full wrath of the Court Judge who made an example of them. All the police prosecutor has to do, goaded by CYFS, is to establish that the force had some sort of consequenes e.g. the child cried or felt aggrieved, so therefore the incident was NOT inconsequential.

Inconsequential means WITHOUT consequennces.

HOWEVER, a (disciplinary) smack is supposed to hurt and cause some minor discomfort. A smack with a wet bus ticket for wrongdoing does not constitute correction. The vast majority of NZ parents (> 80%) believe they should have a right in law - a justification - for using firm but fair corporal discipline where reasonable force is applied - eg a firm hard smack to the open hand or padded back-side. Bradford's bill would remove any and all such justification and brand all parents who use force for correction as those who commit illegal acts (crimes).

Just in case you think that a clever defence lawyer COULD argue that the force was "incosequential" therefore there should be no conviction.... THis is NOT an option. The questions of whether the force was "inconsequential" or in "the public interest" is NOT A QUESTION oF FACT; they are only matters that inform police discretion PRIOR to charging the offender. AGAIN THEY ARE NOT MATTERS OF FACT.

In the current law section 2 states: "THE REASONABLENESS OF THE FORCE USED IS A QUESTION OF FACT."

The Court decision CANNOT turn on either of these questions. Why? Because they NOT questions of fact. The police, by proceeding with the prosecution have passed over these issued and settled these matters. They cannot cannot be revisited in Court as a ground for concluding that no offence was committed.

The person charged, has nowhere to turn in law to secure a line of defence.

We CALL ON YOU AND ALL NATIONAL MEMBERS TO VOTE AGAINST SUE BRADFORD'S FLAWED BILL

PLEASE ENSURE THAT ALL NATIONAL MPS ARE ABLE TREAT THIS VOTE AS A CONSCIENCE VOTE

Yours sincerely

David Lane
Secretary
Society for Promotion of Community Standards Inc.