Saturday, April 22, 2006

Editorial: Bullying case shows court flaws

Every so often, a court verdict provides compelling reason to wonder about the justice system's soundness. Such was the case when, in the Christchurch District Court this week, Daryl Falcon was fined $500 for assaulting an 11-year-old boy who was bullying his daughter at school.

In many eyes, the sporting strongman should never have been on trial. Judge Jane McMeeken served only to add grist to that viewpoint when she told Falcon that "possibly in years gone by, a charge might not have resulted".

The judge was probably referring to the greater unwillingness today to turn a blind eye to instances of assault, even when, as in Falcon's case, no injury resulted. But others pondered the very nature of a court system that could result in him being charged. Had that system become so straitjacketed that minor acts of assault will inevitably end up in court?

There is plenty to suggest that Falcon's case should not have gone down that path. He was a man with no previous convictions who took action at a time when nothing appeared to be being done about his bullying complaint to the staff of Mairehau Primary School. On the spur of the moment, while having what he described as a "brain explosion", Falcon grabbed the alleged bully by the scruff of the neck, poked him with a finger, and told him: "Stop bullying my daughter."

The seriousness of the assault could be debated. But Judge McMeeken, for her part, seemed most concerned that Falcon had set "an incredibly bad example to that bully".

What is not in question, however, is that the consequences of the conviction far outweighed the severity of the crime. Falcon, with an assault on his record, may not be able to travel to the United States for strongman competitions.

Given all that, and his apparent contriteness, he was a natural candidate for the police diversion scheme. That practice has, since 1988, been widely used to fill the gap between cautions and formal convictions. It allows first offenders a second chance while still requiring them to make amends to the victim or the community.

In this instance, however, diversion rubbed up against victims' rights, a tenet of the justice system rendered increasingly important by public demand. The parents of the boy who was assaulted by Falcon objected to the scheme's use. They, it seems, were determined to have their day in court. Their objective, presumably, was to ensure that the strongman was subjected to the system's maximum weight. Thus, if the court was in a straitjacket, it was one imposed by the victims, not any inherent inflexibility.

Judge McMeeken should never have been placed in the type of position that led her to confess that a lot of members of the community could well understand Falcon's frustration. There may have been a prima facie case against him. But that was also true of several recent high-profile cases, when it was not deemed sufficient to lead to court proceedings.

Nor should it have this time. Falcon's appearance in court invited comparison. That, when compounded with the sidelining of diversion by the victim's family, led to a conviction that, quite justifiably, prompted a public backlash.

The ever-changing nature of society invites collisions. Adroit footwork is required to escape damaging consequences. In this case, a valid response to the increasing prevalence of minor crime crashed into the greater recognition of victim rights. A large dollop of common sense was required if the justice system was to avoid appearing inept and inflexible.

In this instance, it was, unfortunately for Daryl Falcon, in short supply.

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