Posted by BE on August 5th, 2011
Ashish Macwan, whose son Aarush drowned when the family’s van rolled into a Central Otago lake, has been discharged without conviction. He was not fined and was allowed to keep his licence.
Though the father had pleaded guilty to a charge of careless driving causing death. Judge Charles Blackie found that he had suffered enough.
“The accident happened at Easter when Macwan was holidaying with his wife Kinnery, son Aarush, and family friends.
“The group stopped at Lake Dunstan near Cromwell for a break. When Macwan, who was driving, got out of the Toyota Hiace to stretch his legs, the vehicle rolled backwards into the lake.
“Macwan reportedly forgot to put on the handbrake and left the van in neutral.
“The adults and an older child escaped, but Aarush, who was strapped into his seat, was unable to be saved.
“A group of people, including Central Otago Mayor Tony Lepper, tried to swim down to the van but it was too deep.
“Police charged Macwan the same day.
“Lepper was one of many who questioned the decision to charge Macwan, saying the death of his son was punishment enough.”
A great many sympathetic and well-intentioned people, reading the story, will have agreed with Tony Lepper that Macwan should never have been charged at all. But the driver of a motorcar is in no different a position to the driver of a bus or train. He is responsible for the lives of his passengers. And if his actions, however unintended or tragic for him and his family, cause the death of one of those passengers, it is appropriate that the matter should be investigated and, if carelessness is at issue, put before the courts.
At the very least Macwan misjudged the steepness of the bank on which he had parked the van, with his wife and children still inside. But in failing to put the vehicle in gear or to apply the handbrake on however gentle a slope, he was surely careless.
Nonetheless, in saying that the father had suffered enough and discharging him without conviction, Judge Blackie demonstrated the capacity of our courts to deliver verdicts that are both rational and humane. The judge is to be applauded.
No such applause is due to the New Zealand Police, whose pigheadedness in deciding – against the wishes of the court and of the couple who own the property – to continue prosecuting 25-year-old Aspergers sufferer, Cornelius Arie Smith-Voorkam, for ‘looting’ two lightbulbs from an empty quake-damaged Christchurch shop, beggars belief. I suspect that most ‘rational and humane’ Kiwis would take the view that a beating and 11 days in custody really ought to be sufficient punishment for a crime of this magnitude. But not our police prosecutors. Get a grip, gentlemen – you look like asses.
This sad episode must surely be used in future Police training exercises – in the “How to really balls things up in public” section.
Even more questionable is the Police decision to threaten a prosecution against TVNZ’s “Sunday” programme. “How dare those hippy media types have the audacity to run a story that made us look like a bunch of mean-spirited, bullying pillocks?”
I for one am really looking forward to the “Sunday” follow up wherein Inspector Derek Erasmus apologises to Arie in person and on-camera, then presents him with a box of antique electrical fittings “With best wishes from all the boys down at the station.”
And pigs might fly (!)
So what precisely has been achieved by the prosecution of Macwan?
Will it save the life of a child in the future? Is it likely to cure a moment’s inattention? Is it going to send a strong message (a favourite of our legal system) that such carelessness will not be tolerated by society?
Macawan was punished by the death of his son. As a father I do not know how he will ever get over it.
By dragging the affair out with a prosecution Macwan never had the opportunity to try to rebuild because he would have been reminded of the tragedy day after day after day. Yes that is real humanity for you. I hope it gives you a warm glow inside.
Needless to say I agree with you totally in the case of Smith-Voorkam.
But nothing will change; there will remain this urge to punish; to find someone to blame; to make an example of someone and the nurse at North Shore Hospital is the latest example.
There is no recognition that human beings are fallible and do stupid things and minimal effort is put into trying to save people from their folly. Let them make the mistake and then punish them and we wil all feel better.
BE: I understand and share your sympathy for this father. But I think the suggestion that where a death is the result of carelessness or negligence, we should simply say, “Well, the person responsible for that death has suffered enough” would set a very dangerous precedent indeed. The publicity surrounding this tragic affair may at least remind the rest of us of the dangers of leaving a car on even a slight slope neither in gear nor with the brake on. As it happens I think this particular father actually wanted to plead guilty, because he felt guilty. The trial and its outcome may therefore have been cathartic for him.
The treatment of Cornelius was scandalous and that of Ashish was the correct one. However, both cases illustrate once my view that New Zealand has a legal system not a justice system.
All I know is that had I been the Crown Prosecutor having to make the decision I would have decided that it did not serve the public interest to drag Macwan through the court system. Bugger precedents; it is a pity that humanity does not occasionally set a precedent.
I know you are a humane person; you have shown it often enough so my crack about hoping it would give you a warm glow was unwarranted and I apologise. We wil agree to differ.
BE: Very reasonable, Ben. No apology needed. No offence taken.
If Mr Macwan was Maori or Polynesian, people would probably call for him to fry in the electric chair. Either that, or a million deaths are a statistic.
With Arie, it’s saddening that certain people – not just the Police – are hiding behind the Blue Wall of Silence’ and defending the indefensible.
I understand that the Police in Christchurch are stressed, tired, and are burdoned with keeping their community safe over the last twelve months.
That is the only rational reason why they seem to have lost the facility for basic common sense, in regards to Cornelius Arie Smith-Voorkam.
In this matter, Police HQ should have intervened; had a quiet word with Inspector Derek Erasmus; and sent Arie on his way.
I understand that the Police have a tough job. I understand that they deal with awful situations that many of us only glimpse on tv shows like “Police Ten 7″. But I also understand that someone in the Police Force should have realised the mess they were creating for themselves and called a halt.
In this instance, the Police have done more harm to their reputation than any organised crime gang ever could.
Defendent: NZ Police
Charge sheet: Lack of common sense
Public verdict: guilty
– – –
Brian, on the issue of Ashish Macwan. Our household was also of the opinion that, as Central Otago Mayor Tony Lepper stated; “accidents sometimes happen” and that NZ society seems to have lost sight of that simple truism. Sometimes, we cock-up. Sometimes there is no one to blame, except just bad luck.
Perhaps in this instance, the Police could have referred this matter to the Coroner for an investigation, and taken advice whether a Prosecution was advisable or necessary?
Just a thought.
Some would like our Police to return to being more ‘rational and humane’, something I felt they more or less excelled at in the past.
But other forces would like to see them stripped of this public trust, this rationality and humanity, leaving it all for the courts to decide. Perhaps an over-reaction to the fact that Police used hand out a little ‘instant justice’? To their not-so-trustworthy powers of discrimination race-wise? Or to the reduced commonality we now exhibit on matters of morality?
Things will get much worse if those who recognise a need to leave Police just enough wriggle-room to insert a little common-sense do not all speak out now before the rule-book undermines all we have come to expect of this fair land.
The local Christchurch Police say they are acting under orders from Wellington. Arie (Cornelius) Smith-Voorkamp has now been remanded 7 times. His partner, Michael Davis, who was trying to persuade Arie to come out of the dangerous building, was left in prison for a total period of 6 weeks and has not yet been found guilty of anything. He was, effectively, a bystander. He was witness to the savage beating received by Arie and was also beaten himself. They were spat on and jeered at, dragged, handcuffed, over the rough floor and flung into prison, which was in lock-down mode- confinement 23/24 hours. Fortunately they were in the same cell, but Arie was on suicide watch despite that.
These two are “dear boys” in my eyes (I do know them) and the whole sorry epic is a dark blot on the Police’s reputation.
Police have to justify their budgets to Bill English and Treasury.
These cases simply are aberrations that emphasize what a good job the police do.
It is interesting that the CEO of the NZ police (Greg O’Connor) has been very muted on these topics.
Obviously our constabulary still walk on water and smell like roses.
The fact that he went to court over this matter doesnt disturb me as much as the beating he took in custody.The police force’s redneck is showing again.
Peterlepaysan – “It is interesting that the CEO of the NZ police (Greg O’Connor) has been very muted on these topics.”
What could O’Connor possibly say?
I think the decision to charge Ashish Macwan was absolutely right. Hey,he drove up to the edge of a lake and got out of the van without putting it in gear on putting the handbrake on. That’s just downright negligent and his actions clearly contributed to the death of his son. I agree his suffering will be life long and he didn’t need some court to punish him but a public acknowledgement of his neglect would have been cathartic at the least and I imagine thousands will now be very carefully checking their handbrakes before they get out of the car.
Its a shame that the contextual compassion I imagine the majority feel for Ashish Macwan was note share by our boys in blue in the case of Cornelius Arie. Another case of “he has suffered enough”
Surely the police are being entirely consistent in both these cases. They are presenting the evidence in open court, and letting the judge decide what the appropriate judgement and sentence should be.
Would you prefer that the police made decisions behind closed doors about who should be charged and who should not, even when the evidence they have indicates strongly that a crime was committed?
This is a recipe for arbitrary justice and corruption.
I also suspect that in the Smith-Voorkam case they do not want to set a precedent that anyone with a psychiatric condition can literally obtain a “get out of jail free” card, as well as send a strong warning to would be looters. His offence may well be trivial, and hopefully the judge will act similarly.
BE: And probably steal the lightbulbs from the jail as well! Don’t you think you’ve rather lost perspective on this one? It’s not the original charge that’s at issue here, but their determination in the face of everything we now know about this young man, the expressed wishes of the court and of the owners of the property and the fact that he has been given a hiding and spent 11 days in the cells, to persist with a prosecution. Totally bloody-minded and pig-headed.
Two things: Mr Macwan was driving a rental vehicle with a manual gearshift he was unfamiliar with. He was used to driving an automatic car and not “needing” to use a handbrake. (That’s what he said in court)
Asperger Syndrome is not, per se, a “psychiatric condition” but a neurological one, i.e. the brain is differently wired. It does literally mean that we Aspies think differently, using different pathways in the brain, and an intense focus and a certain naivete are common traits. Arie did not intend to deprive anyone of their property. He knew that building was trashed by the September earthquake and would soon be reduced to rubble. The shop was empty before the earthquake and was going to be demolished anyway. usually he would ask permission to salvage, but there was no-one to ask, as in contractors on site.
Consideration also needs to be given to the fact that everyone living in Christchurch was (and often still is) suffering from “quake brain”, Police and Army alike.
The spectre of deliberate looting had just surfaced and public outrage was high. The Police no doubt felt very righteous and not inclined to ask questions first. Despite Arie trying to explain he has Asperger Syndrome, they took no notice. In his shock and fear he then had an Aspergic “meltdown” and they tried to silence him with an elbow to the temple. He blacked out twice and has been extremely traumatised by the event. Both young men were beaten, kicked while down, jeered at and spat upon.
However, he does not wish to lay charges as he simply wants to get on with his life. He has been far more understanding of the actions of the Police than they have been of his.
Three separate Judges have disagrred with the Police’s refusal to recommend diversion and the final blow was struck a few weeks ago when the Police held up their representation until they had received orders “from Wellington”.
I suspect there may be a bit of face-saving going on here as Minister Collins embarrassed herself by commenting at the time that she “hoped Arie would go to prison for a long time- preferably with a cellmate” (this last comment was quickly withdrawn). Arie is now waiting for a “defended hearing” by a Judge only. What a waste of time, money and resources!
(The Christchurch Courts are currently about 2500 cases in arrears, according to “The Court Report” aired recently on TV7)
The associated “case” of Arie’s friend, Michael Davis, has been overshadowed by the publicity given to Arie. Michael was kept in prison for 6 weeks. The resolution of his charge as an accessory depends on the outcome of Arie’s case. In fact, Michael was trying to persuade Arie to come out as he knew the building was very unsafe. His only crime was to be there.
BE: Thank you for this very helpful comment.
The police DO have discretionary powers when and before deciding to lay charges for certain specified misdemeanors.Obviously in Mr Macwans case some pedantic timeserver decided to make a name for him/herself.Thank heaven for a sensible and compassionate Judge.
The police behaviour in Arie’s is unacceptable.If what Leith states is true(I have no reason to doubt him) something more must be done.Crusher Collins should be brought to task for her comment which may have only incited more unacceptable behaviour.
1) Collins’ comment post quake – we can put that down to quake brain and move on. Hopefully lesson learned to take a few seconds to regain a professional composure before letting steam.
2) Arie – “pig-headed” police. There is something amusing about Brian’s use of the term, albeit incidental i’m sure.
3) Macwan – Yes he should have been charged as he was. He appears to have shown extraordinary negligence as a father in not taking stock of the environment – i’e “I’m near a lake, my child is strapped into a vehicle, I’m unacquainted with the gearing/braking mechanism, but I’ll just walk away anyhow”. Unacceptable I’m afraid, and tragic to boot.
And of course released without conviction is the only appropriate sentence in this case…but remember in another family it could have been murder.
I’m a “her”!
And as far as I know, Minister Collins could not be said to be suffering from “quake brain” as she lives in Wellington!
ENGLAND RIOTS WHILE NEW ZEALAND WATCHES SNOW FALL
Arie Smith’s partner, Michael Davis, was incarcerated for 6 weeks for trying to get Arie to leave a collapsed building. But there is more to it. Much more.
Partly because of the utterly self-effacing manner of Michael, a man who clearly cares deeply for Arie, we have not before considered these cruelties inflicted on him:
1. Michael was subjected to a 3 month non-association order as a bail condition to stop him seeing his partner of 5 years – in the face of the obvious additional and special support they are to one another and the vastly greater need at this time for precisely those sort of supports. There have been a few valiant gay bloggers who have made worthy mention of this to date – but nothing like the national outrage I believe it demands and would receive if more widely known. It is a cruel, unusual and arbitrary punishment that not even mass murderers are ever likely to have imposed on them.
2. Michael was “punched in the back of his head by a female officer”, “dragged from the building like an animal”, and “spat upon like trash”.
3. Arie was held for 11 days, Michael for 6 weeks. Yet, let’s not forget it was Arie who was after the light bulbs, and Michael who was trying to stop him at the time of his arrest.
4. Arie and Michael lost their house, they lost their cats, and they lost their dignity when they were thrown into jail. (Not finding anyone able to store or care for their possessions meant choosing to donate a house-lot of furniture and other things to their neighbours).
5. Michael – very depressed – is now seeking couselling for what he has been put through, not that there is any on offer for ‘looters’ of course. He hardly sees Arie because they are on separate sides of the city until the whole court nightmare ends. Their wish is to move on, on to Invercargill and an attempt to restart their life.
[I personally think such evil deserves a good riot or two in response, but today I went outside to watch the snow falling instead. If there is anything anyone who reads this can do to raise awareness of the very cruel results of punitive police actions to-date, please do.]
Reminder: Next court appearance for Arie and Michael is on 22 August at 10am.
[Asperger’s Syndrome New Zealand : Information Coordinator : firstname.lastname@example.org]
Police have finally decided to drop all charges against Arie and his friend, Michael Davis. While the boys have a fair result in the end, will they receive any compensation for the loss of dignity, brutality and sheer stupidity they’ve had to endure?
And pig-headedness might fly!
BE: Well said!