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SPCS: Dismissed 'Naughty' Doctor and Subway Worker

11 May 2007

Dismissed 'Naughty' Doctor and Subway Worker

Peter Cullen, who writes a thoughtful column for the Dominion Post, yesterday made comparisons between the recent dismissal of a Dunedin Subway worker, Jackie Lang, for "theft" of two glasses of Diet Coke valued at four dollars; and the dismissal from a New Zealand public hospital of a 'naughty' senior doctor for inappropriate, sleazy, and unprofessional behaviour involving the recording of and attempted transmission of sexually explicit images of his genitals to a friend using the hospital IT system.

Lang was prosecuted by the Dunedin police, but just yesterday they dropped the charge of "theft" under huge public pressure. The police demonstrated how they can and do totally screw up in their application of "discretion" when it comes to assesing whether or not it is in the "public interest" to prosecute a criminal offence: one in this case "considered [by overwhelming public opinion] to be SO inconsequential that there is NO public interest in proceeding with the prosecution".

The Society has pointed out that these cases shed light on the disaster awaiting good parents and their children once Sue Bradford's flawed Anti-smacking bill becomes law. The use of ALL force for the purposes of correction. will be constituted a criminal offence in law for the first time. There will be no line of defence for the appellant. The "reasonableness of the force" used will no longer be a "question of fact" for a defence involving correction as it is in the current section 59(2) of the current Crimes Act. This section has been deleted with respect to "correction".

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Each criminal case will be prosecuted solely on the "discretion" of the police, in many cases goaded by managerial ideologues, child advocasy and social workers from Child, Youth and Family Services (CYFS).

The only cases police will be guided by policy not to prosecute will be those "where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution" as stated in clause 4 of the amended bill. These guidelines are supposed to offer comfort claims John Key, to good parents that they will not be prosecuted for light smacking. However, nothing significant has changed in the effect of the Bill with the addition of clause 4.

Throughout the country the public are asking: Who pushed the police to prosecute the Subway worker for stealing a cup of coke? Why aren't the police capable of properly assessing what's in the "public good"? If spurious and unjustified prosecutions are made by police against good parents for lightly smacking their children for the purpose of correction and the matter is not highlighted in the media, does a lack of media uproar over such cases constitute a ground for them proceeding?

What constitutes "public interest" in the mind of the police? Given that there is nothing in law to define what an "inconsequential" "offence" is, is it right for Bradford to be allowed to get away with promoting a bill in which no question of fact, can be addressed by the defence?

Bradford's flawed bill has made an utter ass of the law. Legal cases turn on disputed facts. This bill leaves everything to the police and their role usurps the proper function and role of the Courts. The Society agrees with one Dominion correspondent who wrote today:

"The courts are the place for interpretation and application of the law. They are founded on precedent and the appeal process. Police should not be used as the scapegoat by MPs for making bad law. It is unfair to them and to the public".

The actions of the dismissed doctor were no doubt considered by hospital authorities to be of "public interest" but were not deemed to be unlawful. In contrast stealing from an employer IS a crime. Sending a sexually explicit image of yourself to a friend using a work computer is not a crime but this action was considered so utterly inappropriate, that the doctor was dismissed.

Cullen wrote:

"The senior clinical doctor in question works in a public hospital and was dismissed for serious misconduct because he took a number of photographs of his genitals using his hospital-supplied cellphone.

"He attempted to send these as an attachment to an email to a female friend using the hospital's IT system. The hospital said the doctor's conduct and serious lack of judgment had deeply impaired or seriously undermined the hospital's trust and confidence in him.

"The Employment Court held the dismissal was unjustified, both in terms of the reasons for dismissal and the process that was followed and reinstated the doctor. The court pointed out the changes to the test for dismissal in the 2004 Act. Now, more than ever, a sensible and realistic approach to what will or will not amount to serious misconduct must be followed by employers.

"So, if it is good enough for the doctor to get reinstated given what he did, it seems that Jackie Lang has a good argument to say that she should not have been dismissed either."

The Society wishes Ms Jackie Lang every success should her employment grievance with Subway come before the Employment Court and hopes that it is speedily resolved.

ENDS

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