More on pillow attack case
I blogged Friday on the pillow attack case and quoted the Herald story which said:
The judge also blasted the police as “ridiculous” and “petty” for bringing action against Mr Taylor.
And I commented:
This is the aspect that will cause more legitimate concern amongst opponents of the anti-smacking law. The Government and PM puts great stock in the discretion available to Police. When you see the Police applying such discretion badly, it makes you nervous.
Now Police HQ have sent me a response to the Herald story, that is worth quoting:
A media report last night stated Police were petty and ridiculous in charging a man with throwing a cushion at a child.
Police were called to a family violence incident involving Mr Taylor on New Years Eve last year. Police were told Mr Taylor had assaulted a seven year old child, was intoxicated and refusing to leave the address. Occupants of the house were frightened of him and were found outside by Police on arrival.
Mr Taylor has a long history of alcohol, drug abuse and family violence which was a factor in laying the charge.
An assault had taken place on a child who was not involved in the original dispute which was between the Mother and Mr Taylor. Taylor refused to leave the address and left Police with no option but resolve the matter by arresting him.
An arrest does indeed seem justified in that case.
The charges initially laid by police were legally correct. An alleged assault had been committed on a child. On the information provided by the complainant and witnesses present, the assault was neither trifling nor trivial. The child had made a complaint that the assault had caused him pain, and redness to his forehead, that he has been whacked.
The defence counsel elected trial by jury and made no attempt to negotiate a lesser charge as indicated by the Judge.
The charge was later independently reviewed by the Crown Solicitor after Mr Taylor was committed for trial. The Crown laid an indictment for the same charge.
The Judges decision to discharge the matter under Crimes Act 1961 s.347(2) was available in the circumstances. However, Police would point out it was the defence tactic to take a relatively minor case to trial where it could have been concluded in the summary jurisdiction. The case was laid in the summary jurisdiction and would have been disposed of as the Judge had suggested should have happened, had there not been an election of trial by the defence. In addition, the application under s347 could have been made by the defence at any point prior to the hearing. The application was brought by the Judge on the day of trial.
Also useful context to the story.
The TVNZ report stated police were petty and ridiculous. This comment was not made by the presiding Judge who did not criticise the police laying a charge in respect of this case. Rather, the Judge formed the view that the case could have been resolved with a lesser, included charge, which was unavailable to the Crown due to the election of the defence of a trial by jury.
This is quite a different impression to that of the original stories. Good to see the Police being proactive with their version of events.
I wonder if any of the media that ran the original story, have run the Police response? As far as I can tell, they have not.
December 7th, 2009 at 4:12 pm
Seriously have to wonder whether the lawyer for the defence was receiving legal aid.
December 7th, 2009 at 4:21 pm
Police did not have to charge with male assaults child. Summary offences assault is purely summary. Ie: they could have denied defence that “tactic” instead of whinging about it later. Alternatively they could have exercised powers of arrest and then decided to release the chap with a caution.
December 7th, 2009 at 4:21 pm
Great to see a follow up on that story.
Also adds weight to keeping the law as it is
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10614013
December 7th, 2009 at 4:22 pm
So … the defence lawyer could have negotiated a lesser charge, but instead went for a jury trial, and got the defendent cleared of all charges?
Seems like a smart play by the defence..
December 7th, 2009 at 4:26 pm
TVNZ responded on Thursday – http://tvnz.co.nz/national-news/police-justify-cushion-assault-charge-3229030
including…
So should Mr Taylor be defended because Bradford is a prat? Or should he be locked up and the key thrown away?
December 7th, 2009 at 4:38 pm
But apparently family violence, male assaults female, threatens to kill, kidnapping, and aggravated robbery aren’t wrong?
This chap is a nasty piece of work. If he’s the poster boy for repealing Mrs Bradford’s legislation, then I’m quite happy with the law as it is.
December 7th, 2009 at 4:50 pm
What has Bradford’s legislation got to do with it?
December 7th, 2009 at 5:24 pm
All this tells us is that the Police have been caught out overcharging. There is something spectacularly wrong about charging someone with an offence which is out of all proportion then blaming the accused or his lawyer for not “negotiating a lesser charge”. In this case the defence called the Police bluff and won. It’s not like the Police didn’t know the defence could opt for a jury trial, or that they would be expected to call evidence to prove that the offence had actually been committed. This was presumably a calculated risk on the part of the prosecutor which blew up.
What I’d really like to know is how often the Police do this sort of thing and get away with it because the defence decides to play the plea bargain game rather than defend the original charge. This would never have made the media but for the anti smacking aspect.
December 7th, 2009 at 5:27 pm
Yeah it’s so damned annoying when accused people and their defence counsel won’t accept the judgment of police and prosecutors and insist on messing round with frivilous nonsense like not guilty pleas and trials, isn’t it? How dare they?!
As GPT1 points out, if their real concern was the safety of other persons, they could have removed Taylor via arrest and then released him later with a caution.
But no, Taylor refused to leave the house, which translates as “he gave us a bit of lip and didn’t do as he was told”. So the police, in typical fashion, pulled the worst-sounding charge they could from their repertoire (“male assaults child” sounds far worse than, say “trespassing”).
Over-charging is a tactic increasingly used by Police. It wastes the time of counsel and courts but, because it occasionally works, it also makes police look as though they have a higher clearance rate for serious crimes.
In this case they did apply their discretion poorly irregardless of the unsavoury nature of the accused and they are likely to continue to do so if the events are heated and they have reason to be annoyed by the alleged offender not because of his actions against a child, but against police. Which is precisely why I opposed Bradford’s law in the first place.
December 7th, 2009 at 6:34 pm
In other news, the media picked up a story on an issue people are already frothing at the mouth over, and stirred it up to even greater hysteria, with a great big dollop of BS (supposed Judge comments) for good measure.
We seem to be seeing this kind of thing over and over again on Kiwiblog… Journalism school fail. Yet another reason this leftie reads this blog.
December 7th, 2009 at 9:03 pm
This is the second time the prosecution has been caught flat footed on a child assault matter. The police blame the defence for forcing it to a jury trial. The first one was where a South Canterbury gave his son six of the best but was acquitted by a conservative small town jury, whereas a District Court Judge would have convicted and imposed a prison sentence (this was pre anti-smmacking law).
IMO the police have only themselves to blame.
All the police needed to do is lay a ‘common assault’ charge, and the defendant cannot then elect trial by jury. Once the accused is convicted I cannot see any reason why the judge cannot impose the same sentence as if a potentially indictable (ie accused can elect trial by jury) assault charge had been laid. For example if the ‘starting point’ is 7 months for a ‘generic’ assault charge and the judge considers 6 months appropriate, then the judge can impose six months for a ‘common assault’ conviction (the maximum alloewable).
December 7th, 2009 at 11:03 pm
Yeah, two sides to every story. This guy does sound like a low life, yet I still mistrust the cops story.
I still don’t get it, was the child bashed or hit with a pillow. It sounds like the cops are saying the child was bashed. If so, why was the charge that the kids was hit with a pillow? You see the cops arresting people all the time for abusive behaviour, why coudn’t they just use that to remove the guy from the house?
When I was young, I used to trust cops. Over time, I’ve realised that police are just average people, they lie too. So, never take the police stories at face value.
One example, there was a story in the news last year where an Indian Sth Auckland liquor store was defendning his shop from weapon wielding thugs who tried to rob the place.
Here is a link…
http://www.voxy.co.nz/national/liquor-store-owner-hit-me-hockey-stick-witness/5/10768
The police also spun a very nice story against the store proprietor, saying just wait till the facts come out then everyone will know the charges are completely justified. I remember listening to this cop on the radio saying that there were secret facts that only he knew and could tell anyone , but that charges were justified. I started to think, maybe there is more to the story.
However, the police secret evidence never came out because the charges were thrown out in the depositions I think. The cops were bullshitting the whole time.
December 7th, 2009 at 11:10 pm
Hmm, why is it when I click to edit, it always says I don’t have permission. I wanted to change the link to….
http://www.stuff.co.nz/national/crime/2290677/Liquor-store-owner-has-no-case-to-answer
This is still quite unbelievable the cops bought charges, to quote…
“Police alleged he (the proprietor) used excessive force against two youths after he had been stabbed following an altercation outside his Gilbert Road discount liquor store in Otara on September 30 last year.”
Cops have to sharpen up their act. They are a disgrace a little too often.
December 8th, 2009 at 12:26 am
Aside from the details of the case you are discussing, I have serious doubt about the police continuing to litigate in the the media after the matter has been decided by a jury.
It suggests contempt for the judicial process.
December 8th, 2009 at 12:30 am
The only thing it suggests, is incompetence on behalf of the police.
December 8th, 2009 at 7:56 am
Surely the Police could have charged him with trespass if he was refusing to leave. Instead they chose to charge him with assault for throwing a pillow. Then they defended it in basically two ways:
1) By saying ‘The charges initially laid by police were legally correct.’. This is exactly the kind of rationale that opponents of the anti-smacking law are concerned about.
2) By essentially suggesting the charge was ok because he was a troublemaker. This also reinforces the concern that a law making everyone a criminal gives the police a convenient way of locking up anyone for any reason.
The business about the summary jurisdiction is nonsense as well. Obviously the police have to lay a charge before the defendant chooses between trial by jury or by judge. The police chose to lay a charge carrying a sentence of three months or more so the defendant was perfectly entitled to elect a jury trial. Why on earth should the defendant then be blamed for refusing to agree to a lesser charge, when it was obvious the original charge was ridiculous and would be thrown out? No decent defence lawyer would agree to that.
December 8th, 2009 at 9:43 am
A couple of points: Police guidelines (not the Police Act) but guidelines set by the Commisioner state that in domestic type incidents where assault of any description is alleged then the principle offender should be arrested. It is also very rare for these type of offences to be delt with by way of warning or dropping of charges especially when the perso narrested has criminal history.
Basiclly the Police Act gives individual constables discretion to decide whether to arrest someone or not. But the the Police guidelines over rule this and say that unless exceptional circumstances exist there is an expectation that there will be an arrest. If the cop goes against this then they open themselves up to employment disciplinary action so most just go along with the guidelines.
Secondly it is common practice to throw serious charges at people that in the cold light of day have little chance of succeeding. Normally these are dealt with at Status Hearings in the District Court. Some of this would stop if Judges would actually impose appropriate sentences rather than taking the wet bus ticket approach.
The thinking kinda goes like this: Cop arrests this guy for assault. Cop thinks this guy has quite bad history, he deserves to be hammered for this even though the pillow assault is barely technical. He thinks if I charge with Assault on a Child (Max 2 years) likely to get a tougher sentence than Common Assault( Either 3 months or 1 year).
Nowhere does the cop look at the case in isolation and say this is a piffling matter, and can be dealth with with a formal caution. Or if he is difficult and won’t leave the address, arrest and charge him with trespass. That is the problem with restrictive police guidleines it makes cops toe the PC line and clouds their on the spot judgement.
It sucks but it isn’t gona change in a hurry.
December 8th, 2009 at 6:33 pm
The version provided by the police can’t be correct, because we know the MSM has layers and layers of fact checkers, is fair and balanced, always provides two points of view and would never ever publish a story without having the other party have a say as well.
December 9th, 2009 at 9:24 am
This is a disingenuous press release by the Police. The criticism that the judge levelled at them is well founded. The fact is that the Police overcharged, pure and simple. The level of charge carried a two year sentence and did not fit the level of harm done. As GPT said, this should have been summary offences assault. I suspect the Police looked at the guy’s history and that meant the wrong charge was laid because the defendant is a crim, as jims_whare very rightly points out.
That is bad Police practice and should not be encouraged.
The Police must have got a hell of a fright when the man took it to a jury trial. They allowed that election by the level of charge, so they shouldn’t complain about that. I would have given the same advice to the defendant as his lawyer obviously has. It is nothing to do with increasing the amount of pay for the lawyer, it is instead about what is the best way to defend the charge. I have no doubt that a jury trial would have given him a far better chance of acquittal than a summary hearing.
Now, what the police would have thought was that this ‘experienced’ crim would balk at the two year max sentence and offer a deal on, say, crimes act assault, which has a one year max. That is a very common occurance. Obviously they might have offered that when the man elected trial and he didn’t accept it. They certainly seem to have expected the defence to come to them, cap in hand, for a deal. That backfired on them, didn’t it! My advice would have been to reject any offer, too. By the way, the Police shouldn’t complain too much because they reject plenty of offers from the Defence, so this is the pot calling the kettle black, here.
The Crown Solicitor gets the file after committal for trial and then prepares an indictment based on the file. They don’t do a vigorous job of reviewing whether the matter should go ahead, simply the evidence before them. Based on that there is prima facie of an assault on a child, so the indictment was prepared. That in no way justifies or excuses the level of charge chosen by the Police.
Then it got in front of a judge and the Police got told off. Diddums. This was not a minor charge, it was a minor offence. There is a big difference. The charge did not reflect the offence and the Police got caught out.
The events after the charge are a result of the Police decisions. Summary Offences Assault was the correct charge and probably would have been pleaded to by the Defendant.