Wednesday, April 19, 2006

Another case where Sue Bradford could be wrong regarding repeal of Section 59

Child advocates and Green MP Sue Bradford are saying that parents have used Section 59 to get off charges of assault using a horse whip and a piece of wood. They are most likely wrong in both cases.

Section 59 of the Crimes Act 1961 states that the parent of a child, or a person in the place of a parent is justified in using force by way of correction towards a child if that force is reasonable in the circumstances.

This blog has already covered the riding crop case and now will turn to the case regarding the piece of kindling wood, about a foot long and 20mm wide, which has been reported as a plank of "four by two".

In this case there was no evidence that Section 59 was used as a defence. There was evidence that all the injuries were not caused by physical discipline. But first, the allegations.

Barnados has claimed that parents have been acquitted of using a section 59 defence for thrashing children with pieces of wood. Ian Calder from Barnardos said:
A pediatrician submitted that the boy had been injured with serious bruising visible a couple of days after the incident. Again Section 59 was used as a defence. In this case a jury found that the corporal punishment used was reasonable in the circumstances for the correction of the child’s behaviour.
Sue Bradford also says Section 59 has let parents get away with beating children with pieces of wood.So does Plunket president Kaye Crowther. She is quoted in the Dominion Post: “We’re not talking about smacking. We’re talking about belting and hitting children with implements. In recent times I am aware of at least two cases where [Section 59] has been used as a defence where the child had been really abused.”

The Society for the Promotion of Community Standards challenged her to identify these two cases. She cited the riding crop case, and the piece of wood case.

The first case is the riding crop case, well known to readers of Big News, where it is clear that reasonable force was used in the circumstances. The Napier District Court has confirmed that there is no evidence of a Section 59 defence being raised in the piece of wood case. No summary of facts is available and the judge involved is no longer a District Court Judge.

The court states - and I quote:
There is no way of telling whether Section 59 played any part at all( in the case).
If Section 59 did not play a part, the jury could not decide whether any discipline was "reasonable force in the circumstances", rather it would have had to determine, I assume, whether the injuries were predominately caused by discipline or other factors. However if Section 59 did play a part, you`d think the court would at least be able to tell me that when asked.

After the boy was accused of stealing $40.00, court documents state that his father took him to his room and smacked him four or five times - not eight as Bradford has claimed - on the buttocks. The reason that the man didn't smack the boy with his hand was because he has a damaged tendon in his hand, due to an injury.

Sue Bradford says, of this case
It is up to a jury to decide if the force used was reasonable in the circumstances. This was interpreted by a jury in Napier in recent years to mean that it was reasonable for a father to hit his eight year old son eight times with a piece of wood 30cm by 2 cm – leaving linear bruising visible for days
But that is not what the Court told me. It is not so clear cut.

That's because the injuries were primarily caused by the boy falling while roller blading the previous day. The consultant pediatrician Calder referred to said there was already damage there. He said in court that the bruising may have been caused 36 hours prior - which was the time the boy fell off his roller blades. He also said that the bruises must have been caused by "considerable force". That force was not just related to physical discipline. He further said that if the boy bruised or injured himself, prior to being disciplined, it's possible that the bruise would deepen. Apparently that's what happened, and it wasn't excessive disciplinary force that did it, so if Section 59 was used, the discipline would probably have been found reasonable under the circumstances.

The accused denied that he caused all the injuries in the photos presented to the court, but said that if he was responsible for all the injuries he would "obviously" accept that it was excessive force in terms of disciplining the child.

What it does indicate is that this case may not be about Section 59, as the court has not stated that Section 59 was actually used as a defence.


Gooner said...

You are able to get the court file if you haven't already got it. Also, the defence lawyer may tell you if it was used (if there ws one). Certainly the defendant could tell you and I expect the Police also.

Dave said...

I have had confirmation from a person who knows the family who states that S59 was not used as a defence. Im waiting on a reply from the lawyer through the courts confirming this.