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What happens inside the Police when a boss is an idiot?

  • March 7th, 2010

Anyone out there able to say what is likely to happen to the person (presumably a Police prosecutor somewhere) who made the stupid decision to prosecute the Southland bus driver for "assault" of a kid he stopped from persecuting a girl on his bus.

Is there a formal or informal system that over time ensures that stupid prosecutors get moved to positions that risk less damage to public trust in the Police?

On Kiwiblog's post on this story the Graeme Edgeler and FE Smith have both offered their usual valuable comments.

But the case is so bizarre it cries out for an insider to tell us how such things happen.



In our corner of the world, the media has some programs that helps the  public know about these things.  You can also solicit their support even after you havr filed an administrative complaint so that no whitewashing can occur.

[…] Whaleoil’s found an example of a decent judge. […]

  • Johnnieboy
  • March 10th, 2010
  • 1:53 pm

Hi there SF,
You don't need an insider to tell you why this has happened, as the information on that is available on the net. The reason for it is that the police guidelines require the police to prosecute for every breach of s59 of the Crimes Act, for any act that is considered to be an assault on a child under that section of the Act.
As Prof Richard Ekins stated in the Sunday Star Times last year, it is illegal for the police now to exercise their discretion not to prosecute these matters (despite the government's blatant lies to the contrary), so all actions to correct a child (ie actions to change their behaviour to that required by an adult using any means including touch, spoken word, as defined in s2 for "assault") are now considered to be assault.

  • Chuck Bird
  • March 10th, 2010
  • 2:57 pm



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Johnnieboy, the police do not have to prosecute anyone for any alleged offence including the new S59.  In fact they should not if they do not have a prima facie case.  In other words a good or at the very least reasonable chance of conviction. 
I was not going to comment any more on this case except I heard on the news that a senior police officer in Gore defended the police action.  They relied on the boy’s story plus some of the other kids on the bus. 
I heard Jim McCorkindale on the radio.  He certainly sounds credible to be.  It the police cannot sort out the credibility of witnesses on a case such as this is it any wonder they stuff up murder inquiries.
Inspector Olaf Jensen, of Invercargill should stop digging.  You are expecting a bit much if you he expect the public to accept your word that the police did their job properly without any statement let alone proof. 
This dragged on for 7 months Inspector Jensen.  Do you understand the law?  Was this prosecution in the public interest?  What does this tell the public?  It tells them that if they see someone getting assaulted not to get involved because if the offender and possible his or her friends do not turn on you the police might end up charging you.
Did the police ask boy’s parents if it was likely that their boy would lie or at least embellish his story?  It would appear not from what the boy’s father subsequently said about his son’s behaviour.
Many years ago I spent three days on a rape trial.  I will not go into all the details but it was clear that not only was there not enough evidence to convict the alleged offender but he was totally innocent and the complainant was committing perjury because the alleged offender had ended their relationship.  A credible witness made it clear that she was committing perjury. 
I go pissed off at the dopey foreman.  As soon as we went in to the jury room after the judge’s summing up I called for a vote.  It did not take long to get 11 not guilty votes.  The foreman quickly caved in.  The verdict took a lot less than 30 minutes.  The judge have given very strong hints as to what verdict he expected.
After the trial about half the jury including some women went to the pub and had a drink with the poor guy that was fitted up.  His lawyer was there also.  He said to me he would not usually be caught dead talking socially with his clients but he shared my view on this case.  The lawyer who will remain nameless is now a well known judge.
The next say I phoned the police who brought the prosecution.  He told that it was police policy to prosecute on rape cases if the complainant does not change her story and let a jury decide.  I then asked him why the complaint was not charged with perjury.  His answer was that this would discourage genuine complainants.  The clear implication was that she was not a genuine complainant.
This indicated to me that there was political interference in the police deciding on whether to prosecute in the case of alleged rape.  It would now appear that there is political interference in the police decision to prosecute in the case of a parent or an other adult authority figure using reasonable force to restrain a child who obviously need restraining.

  • Chuck Bird
  • March 10th, 2010
  • 2:58 pm

Sorry about the format above.  I forgot I could not copy from word.

  • Johnnieboy
  • March 10th, 2010
  • 3:31 pm

CB, it is no surprise that you are unwilling to comment further on this issue- your position is contrary to that of Prof Richard Ekins, which I repeat here for your edification,
         "any Police policy not to prosecute light smacking is unlawful.  ‘If the Government wishes to protect “good parents” from the criminal law then it cannot rely on s 59(4) but must instead invite Parliament to enact legislation specifying when and how reasonable force – a light smack – for the purpose of correction is justified.’
·         ‘The Police guidelines for the new s 59 demonstrate a tension between the presumption that light smacking of a child is inconsequential – effectively the Government’s position – and the Police Family Violence Policy’ – namely zero tolerance"
CB, you can substitute, "any action to correct a child" for "light smacking" in the prof's statements above, since light smacking is a subset of all possible corrective actions. Touching a child on the arm was also considered to be a corrective action by police. This is all it takes to establish a prima facie case in the eyes of police, as confirmed by their own zero-tolerance quidelines.
s59(2) Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.
Is there some confusion as to who is the authority here CB- you or prof Ekins?

  • Chuck Bird
  • March 10th, 2010
  • 4:22 pm

I accept what Prof Richard Ekins said and you quoted.  However, that does not mean police cannot exercise discretion on individual cases involving S59 as with any other alleged breach of the law.  That is different than the police adopting a blanket police to basically ignore the law.

Like most who have commented about the bus driver I do not know all the details but suspect that S59 was not used as a defence but self defence or defence of someone else I believe that is covered by S48 as was mentioned by MacDoctor on his blog.

I suggest you have look at what a lawyer says on Kiwiblog

F E Smith (523) Says:
March 6th, 2010 at 11:08 pm
Pete and s.russell: Sorry, I don’t accept your reasoning at all. On too many occasions, when I have asked an officer in charge of a case why they are prosecuting, they have told me that they don’t really know what happened but they will let the court decide. That is not good enough. The police are there to properly investigate incidents like this and then use their discretion on whether to prosecute or not. Part of that discretion includes considering whether it is in the public interest or not. Another part of exercising the discretion involves looking at the evidence and considering whether they will could get a conviction.
I think you should reconsider your interpretion of Prof Ekins’coments

  • Johnnieboy
  • March 10th, 2010
  • 6:44 pm

CB, you don't accept what Prof Ekins has said, that it is illegal for the police to exercise their discretion not to prosecute.
You should also accept that police must obey their guidelines despite the law- they now have a zero tolerance policy against any use of force for the purpose of correction, used against a child.
The problem here CB is that the s2 definition of assault or s59 does not explain what constitutes reasonable or unreasonable force- it only indicates that use of force = assault.
"assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose; and to assault has a corresponding meaning".
The police don't have to use their discretion to make a prosecution- between their guidelines and the unclear definition of assault that applies to s59, the police have no choice but to prosecute, and if they want to, all they have to do is to prove that there was ANY use of force in order to justify a prosecution, and as prof Ekins stated, for them to do otherwise would be illegal.
So it is easy to see that the police could prosecute. The bus driver was trying to correct the bully's behaviour, and he exerted force by touching the boy's arm (no matter how minor) in order to accomplish this- he was engaged in a criminal act.

  • Johnnieboy
  • March 10th, 2010
  • 6:46 pm

You also failed to see that while FE Smith was giving his opinion about what the police process should be, Prof Ekin was giving his legal opinion as to how the system actually does work, after consideration of the legislation, government statements, and police guidelines. In other words, his opinion is authoritative.

  • David Baigent
  • March 10th, 2010
  • 7:22 pm

Steven,  If appropriate could you apply your personal view of what is likely to have happened between the school bus driver and the boy "assaulting" the girl passenger.
I am interested in WHY John Key holds his stance on s59(4).
It seems to me that s59 remains a disease process, even if not quite up to the level of outright malignancy.
thanks  db..

  • Chuck Bird
  • March 11th, 2010
  • 8:49 am

“CB, you don't accept what Prof Ekins has said, that it is illegal for the police to exercise their discretion not to prosecute.”

Johnnieboy, Prof Ekins did not say that.  He said, “any Police policy not to prosecute light smacking is unlawful”.  There is a difference.

I went to a meeting protest the current law where Prof Ekins spoke.  He made the position very clear.

As another lawyer on Kiwiblog, Graeme Edgeler argued this case had nothing to do with S59.

I have to arrange things to go away for a long weekend tomorrow.  I will not have time to argue this anymore.  Hopefully a lawyer may point out the law to you in a way you can understand.

  • Don McKenzie
  • March 11th, 2010
  • 3:13 pm

The boy who assaulted the girl and lied to the police needs a short sharp lesson like 7 days in the slammer. Seems the less violent punishment  for wrong doing becomes, the more violent some spoilt poorly brought up youngsters become. (10 teenagers waiting to court for murder as of this date) 

  • Johnnieboy
  • March 12th, 2010
  • 12:05 am

This is getting quite funny CB. My understanding is that police policy is like policy at any other government org. For instance, while tax law is complex enough as it is, the IRD may have their own interpretation about how they will apply or enforce the law, and that is how they will go- their interpretation may not be what some would call a fair reading of the tax law!
It is the same with the police. Their policy on s59 (zero tolerance) dictates how they will act, which due to the very unclear and contradictory wording of s59, means that their interpretation can be a much stricter than the vague intent of the legislation when it was drafted that would allow police to exercise discretion. In other words, they can simply ignore s59(4).
It was always the intention of the backers of the s59 amendment to specifically criminalise corrective acts that are in fact a normal part of parenting, while passing an ineffective discretion clause, and while pretending that the changes would reduce child abuse.
Family First has posted enough stories about parents being prosecuted for merely touching their children, or being investigated by the cops of CYFS upon the baseless accusations of another, for you to realise that the police are really saying, "thanks for the discretion, but we don't really want or need it thank you".

  • Chuck Bird
  • March 14th, 2010
  • 2:52 pm

Johnnieboy, rather than try and debate this any further with you I have copied the contents of an email FE Smith sent me.  FE Smith is not his real name but he is a real lawyer who comments on Kiwi blog occasionally and sometimes more frequently. 
I would have collected over a 100 signatures myself and have also made written and oral submissions to a select committee.  I know how the law works.  Do you think you know more that a qualified lawyer?
Hi Chuck,

I went along and had a read of that thread.  Johnieboy has not read the Family First press release correctly.  Professor Ekins says, quite correctly, that any parent who lightly smacks their child commits a criminal offence.  That is correct.  The Professor then says that any police policy not to prosecute light smacking is also unlawful.  That is also correct.

However, Johnieboy says, in his comment, that "it is illegal for the police now to exercise their discretion not to prosecute", which is not what the Professor said. In fact, it is the opposite of what he said.  If the police have a policy not to prosecute light smacking then they are not exercising their discretion when considering a criminal offence.  That is unlawful.  Parliament clearly said that they have that discretion, which was unnecessary because they already had it.

Johnieboy is also wrong when he says that Police must obey their guidelines despite the law.  In fact, the police must obey the law, despite their guidelines.  It is Police policy to prosecute all domestic violence complaints (something I have commented on in the past) and that policy is unlawful and is unlawfully perpetuated.  However, you try judicially reviewing such a decision and see where you get!

Johniboy is also wrong when he says I was giving my opinion on what the process should be- it was in fact a comment on what they do, and then on what they should be doing.  My opinions are not in conflict with Professor Ekin's at all, as our opinions coincide!

Your arguments were fine.  Johniboy needs to go and re-read the press release and the NZ Law Journal article.

Feel free to use as much or little of this as you wish.



  • Johnnieboy
  • March 14th, 2010
  • 4:32 pm

CB, I do appreciate a proper legal opinion, after all it goes a long way to clearing up my misconceptions surrounding the law. However it brings up further difficult questions for me regarding s59, based on FE Smith's response.
If police must follow the law despite their own guidelines, then doesn't it naturally follow that any police policy that expresses no tolerance towards light smacking (as Prof Ekins says is currently in use by police) must also be unlawful, because it restricts police from exercising their discretion to prosecute?
Therefore would the police's current zero-tolerance policy be unlawful, or would it be continually disregarded by police? What is the purpose of a zero-tolerance policy if police can disregard it at will in favour of exercising their discretion? After reading the responses of parents to the Latta review, can we reasonably say that police are choosing not to prosecute where appropriate?
Furthermore, is it not correct from FE Smith's comments to draw the conclusion that the police are so confused about the line between a corrective act (which is assault), and an act of parenting that is incidental in nature (which may or may not be a reasonable use of force), that logically their discretion has been rendered moot, so they will prosecute all cases, because only a judge has the mental werewithal to figure out whether assault has actually occurred?

  • Steve
  • April 11th, 2010
  • 11:14 am

Mr Franks,
Your erudite comments are always well appreciated.
It is now five weeks since you last contributed, so get off your chuff and get working.



Jenny Evans

  • Lenny
  • April 23rd, 2010
  • 11:53 am

If you're quitting blogging, you should have the decency to announce it.
Cat got your tongue on the major legal announcements of recent weeks?
Scared to criticise Dear Leader John Key?


You’re right

  • Christopher Wingate
  • May 21st, 2010
  • 4:31 pm

Why is the law and Kiwi society in such a mess?
Lawyers incomes have all gone up, each year more and more GNP heads their way, yet crime is out of control- and in among that this poor bus driver gets dragged through court for keeping the peace and protecting someone.
It appears we have too many Idiots in Power in NZ.
Could the monopoly and self monitoring on justice management  be the problem?

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