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Saturday, October 01, 2005

Dev Solanki, a loving Dad

Warning, this is quite a long post and the linked article is a PDF.

I don't know what country Dev Solanki came to New Zealand from. It doesn't really matter. Yet I'm sure he came to New Zealand for one particular reason - he believed it was a better country to raise his kids than the one he had come from. After all, except for work purposes, that is the main reason people migrate with their families. I wonder now if he still thinks that.

You see Mr Solanki is now a criminal. He has a criminal conviction for assault on a child. The child is his 12 yr old daughter. I wonder when he came here with his daughter and wife whether he thought this fine country would turn him into a criminal for his actions. What actions you ask?

Facts

Mr Solanki was recently estranged from his wife. She, and their 12 yr old daughter actually lived next door to him during the estrangement. Whilst living next door, his daughter stopped talking to her dad for a short while. Naturally enough, dad (Solanki) was upset at this. One day he saw her arrive home next door with his ex wife. As the car stopped, Dad tried to talk to his daughter. You know: 'What's the matter darling. Why aren't you talking to me"? So badly did he want to talk to her that he
restrained her with an arm around her shoulders so that he could talk to her
Daughter was unwilling to speak with him. She tried to enter the house but the 'hug' prevented that. In his attempt to keep trying to talk to her he had her in a mini headlock for a few short seconds. It seems his arms slipped up off the shoulders and around her neck as she tried to extricate herself. The neighbour called the cops. Dad was charged with assault on his daughter, and on the neighbour as well.

Trial

At the trial, Dad was acquitted of assault on the neighbour. At the end of the Crown case the Judge had discussions in his chambers with both lawyers and Dad.
Initially, the Judge indicated that the physical touching of the girl by the appellant was not of a seriousness which warranted the intervention of the criminal law. He expressed a provisional view that he intended to take that particular count from the jury. However after being reminded of the 'headlock evidence' from the Crown lawyer the Judge changed his mind
The Judge then commented that
given the girl's age, the fact that she and her mother had moved out of [Dad's] home and that the daughter had made it clear she did not want to talk to her father, the application of force...would amount, technically, to an assault, and that he would be obliged to direct the jury accordingly
Forget the legal niceties from this point on. Essentially, Dad changed his plea to guilty; he was convicted; and he appealed on the basis that his guilty plea was in fact a miscarriage of justice on the basis of the Judge's 'behaviour' in chambers. Forget also that Dad's lawyer, at his hearing, may have made a critical error recommending he change his plea. After all, he hadn't given evidence at his hearing as the chambers hearing occurred after the Crown closed its case.

The Court of Appeal

The COA basically ruled there had been a restraint by Dad without his daughter's consent. The important points are as follows
It is plain that the appellant is counting on a certain view of the law of assault to support an argument that his touching of the girl was not an assault. That view relies on selective extracts from the judgment [in Collins v Wilcock]. Notwithstanding the views expressed [in the Collins case], the law in New Zealand would categorise as an assault a touching of the type explained by the appellant in his brief, to which there was no express or implied consent and when the toucher did not believe the girl was consenting. Slight though the touching may have been, in terms of [Dad's] version of events, nevertheless the context shows that the touching was technically an assault. If there had been evidence that the [Dad] believed that the girl was consenting, he would not have been liable to conviction unless any reasonable possibility of such belief was excluded.
What I take from this case is this. First, all Dad wanted to do was talk to his daughter. She said no. She was 12! Last time I checked parents are responsible for their children until they turn 16. Theoretically then, Dad should have been allowed to talk to her. I really couldn't care less about what his daughter wanted. He is allowed to talk to his 12 yr old daughter.

Second, children cannot consent so the COA's comments about consent are irrelevant. They can't consent because to give true consent one has to be fully informed of the nature of the actions they are consenting to and children, especially very young ones, aren't able to understand what they are consenting to. Does 12 yrs old fit that bill? Who knows. But my point is that this case is not about the lack of consent of a child; it is about the right of a dad to talk to his daughter without the intervention of the criminal law, as the Judge initially said at the first hearing.

Third, this case is not about section 59, but is in fact, all about it. Section 59 was not used here because Dad wasn't disciplining his daughter. Yet the stark reality is that the COA used the precise interpretation of assault that the Police will use if section 59 is repealed. They have already confirmed that.

I feel terribly sorry for Dev Solanki. Let's ensure dad's throughout New Zealand can continue to restrain/hug their daughters.
ยท Linked Article

Posted by Gooner | 10/01/2005 12:02:00 AM

5 Comments:

Anonymous Anonymous said...

IANAL - but you should look up the Gillick case law. It basically says a minor who expressly indicates their ability to make decisions can and is for all purposes an adult (parental responsibilities cease).

10/01/2005 10:44:00 AM  
Blogger Eurokiwi said...

Well, naturally! Being a male and a father of a female automatically put this man in a position of wrongdoing right from the start. The fact that his wife had gone to live next door only exacerbated the guilt. After all... he MUST have been a violent and/or perverted son of a bitch for his nice wife to have walked out on him in the first place - so what's the drama here?
As for 'touching'... Ooohhh how disgusting is that? Makes me creep just to THINK of a father TOUCHING his daughter.. Yuk.
No, I'm sorry... the man is obviously a disgusting violent child molester and he should be immediately castrated. In fact, I think CYFS is presently setting up a mobile Castration Task Force to deal with such cases, so in future we won't have sub-human animals like this lurking unchecked amongst the female poulation.

10/01/2005 11:08:00 AM  
Blogger Gooner said...

What is IANAL?

10/01/2005 12:45:00 PM  
Blogger ZenTiger said...

IANAAE (I am not an acronym expert), but I think it's a legal term to say that I Am Not A Lawyer.

10/01/2005 02:40:00 PM  
Blogger Gooner said...

Zen, ta. I think you're right!

10/01/2005 08:20:00 PM  

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