Kiwi Criminals?

[Anacoluthon64]

It seems to me that the New Zealand Summary Offences Act 1981 legislation, as reported on in the 23/06/2006 edition of SWIFT ("Law Breakers"), is to a large extent self-defeating. I'm no expert on NZ law, but it's a fairly safe assumption that the "innocent until proven guilty" approach prevails there as it does in many other countries.

If this assumption is indeed true, then it is of some concern that the legislation includes the qualifier, "with intent to deceive" - twice, as a matter of fact - in respect of the actions of a "medium." The law does not usually accept ignorance as a valid defence. The inclusion of this rider allows any "medium" charged in terms of this law to evade conviction by effectively pleading ignorance and maintaining that there was no intent to deceive, at least inasmuch as clause 16.(1)(a) is concerned (i.e. in regard to "powers of telepathy or clairvoyance or other similar powers"). How would a prosecutor go about proving such intent? It seems to me that it would, short of a substantiated (e.g. by a witness) admission to that effect by the accused, be unprovable. Perhaps that is why this law is not enforced and consequently not widely known about.

Also, legislation ordinarily strives to achieve maximal specificity with minimal verbiage. The question therefore arises why this qualifier was deemed necessary for inclusion - twice - at the time when these regulations were promulgated

Maybe the legislators knew something then already.

'Luthon64

P.S. The reader who brought this to The Amazing One's attention is reported as being named Christiaan Barnard. Not the pioneering South African heart surgeon, I expect. One wonders what sorts of nonsense could be read into this coincidence...

ETA: Butterfingered typing.

[Jon.]

Thanks for starting a thread on this topic, 'Luthon. There is a similar provision in the Criminal Code of Canada:


365. Every one who fraudulently
(a) pretends to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration,
(b) undertakes, for a consideration, to tell fortunes, or
(c) pretends from his skill in or knowledge of an occult or crafty science to discover where or in what manner anything that is supposed to have been stolen or lost may be found,
is guilty of an offence punishable on summary conviction.
R.S., c. C-34, s. 323.

Note there is no exception for "entertainment", although there does have to be fraud. Arguably, anyone who says their "service" is "for entertainment only" is not committing fraud. I don't know of any prosecutions under this section but I imagine that the free speech provisions of the Charter of Rights and Freedoms would bar any successful prosecution. Still, it might be worth a shot. Anybody know a good skeptical Crown prosecutor?

[tsg]

Intent may not be all that hard to prove, especially if it can be shown that the medium is using trickery to deceive his customers. I mean, they just aren't going to convince anyone they believe the spirits are ringing that bell if he's pulling a string under the table to make it happen.

[Mackin_NZ]

The legislation site referred to by Christiaan Barnard in Randi's commentary contains only plain legislation not commentary or case law citations. I have access to a database of NZ statues that does have commentary and case law.

The following commentary is linked to section 16 of the Summary Offences Act 1981:

... The critical issue is the medium’s belief. If the medium honestly or sincerely believes he or she communicates with the dead, no offence will be committed as the medium will not be acting fraudulently: Reeves v Saxon 17/12/92, CA134/89.

The case referred to above is one where a member of the NZ Skeptics Society (Reeves) wrote to a local news paper and other organizations claiming the medium (Saxon) was in breach of the Summary Offences Act. Here's the synopsis of the case:

Successful psychic mediums claim for defamation against a sceptic; letters of the first defendant published in the second defendants newspaper; first defendant also wrote to Social Welfare, Police and other organisations; letters allege the plaintiff was obtaining the benefit fraudulently, taking money for fraudulent advice and that she was in breach of the Summary Offences Act 1981; evidence of experts concerning "cold reading"; a method of making vague statements and asking questions;

Held, on the balance plaintiff telling the truth as she believed it to be; held, statement in letters would lower the plaintiff in the estimation of others and were defamatory; exposed her to contempt and ridicule; justification; whether words are true; in respect of the allegation of an offence must establish commission of the offence on the balance of probabilities; held, no intent to deceive; no evidence of acting fraudulently or causing damage to customers; qualified privilege; voluntary reporting of crimes comes within such a duty; can only arise if act honestly and without malice; fair comment; must be based on fact; held, defence of fair comment not made out because not accurate and could not be the opinion of a fair minded person; no defence that newspaper published a balance of letters; held, intention to injure the plaintiff and malice; damages; wide publication no apology; awarded $6,000 from each defendant and costs.

In a later appeal the damages against Reeves were reduced to $4,500, but the conviction held.

I'm not a lawyer but it seems to me that it would be fairly easy for a medium/psychic/whatever to claim they “truly believe” themselves to have supernatural abilities and therefore are committing no crime against this particular act.

Mackin_NZ

[Anacoluthon64]

Intent may not be all that hard to prove, especially if it can be shown that the medium is using trickery to deceive his customers. I mean, they just aren't going to convince anyone they believe the spirits are ringing that bell if he's pulling a string under the table to make it happen.I agree that in the case of apports and such, deliberate deceit would be easy to prove in principle. However, I was, as the OP clearly states, particularly concerned with clause 16.(1)(a), which specifies claimed "powers of telepathy or clairvoyance or other similar powers," where it is difficult to see how deliberate deceit could be proved, short of the substantiated admission I mentioned.

Thanks to all for the feedback, though. I have in the meantime attempted to isolate similar legislation in the South African context, but so far without any success.

Mackin_NZ, it is most strange, but also deeply disturbing (more so than the weak phrasing of the ordinance), that a court of law would accept that a person's (professed) belief in something is sufficient to avoid a verdict of "guilty." Such (professed) belief can hardly be rebutted, and, what's worse, by that argument, any criminal activity can be made excusable. Not having read Reeves' letter(s), the only valid basis I can think of for awarding Saxon damages is that it/they was/were slanderous (rather than defamatory or libellous, since, as plaintiff, one would expect that Saxon would be required to show that Reeves' assessment was inaccurate).


'Luthon64

[Mackin_NZ]

Not having read Reeves' letter(s), the only valid basis I can think of for awarding Saxon damages is that it/they was/were slanderous (rather than defamatory or libellous, since, as plaintiff, one would expect that Saxon would be required to show that Reeves' assessment was inaccurate).

From reading the summary of the original high court case and the later appeal it's hard to tell if that was the case or not. The entire judgement is quite lengthy and to be honest i don't have the time or inclination to read through it all. The next time I attend one of the NZ Skeptics gatherings I'll ask if anyone remembers the case. It wasn't that long ago.

Mackin_NZ