But in other ways, and in pretty much the rest of the hospital, it’s still old-school – the way things were done during the ‘former’ – ie, communist – times.  Including the entrenched policy, at least within the state hospitals, of separating mother and new-born for at least the first 24 hours of the latter’s life.  In the case in question, after extraction, the baby was first taken away from the operating table, to be checked and cleaned, and then displayed briefly – like, for a number of seconds – to the mother, who of course was a bit beaten up from the c-section but conscious, lucid and – probably – dying to hold the little life she’d been carrying for 37 weeks.  But no, baby then whisked off, mother next to see her after what proved in this instance to be 28 hours, four floors up in the neonatal ward.

In New Zealand these years, and many other countries, ‘skin to skin’ is official policy – putting the mother and newborn in physical contact from the time of birth.  It’s described thus in the website of the New Zealand Women’s Health Action Trust, a state-sponsored NGO:

Placing a newborn baby directly on the mother’s bare chest immediately after birth and leaving it there for at least an hour allows the baby to find her way naturally to the breast and start breastfeeding.

Not being in any way an expert on the topic, it nevertheless seems to me that ‘skin to skin’ is in the category of ‘bleeding obvious, really’ when it comes to supervised or assisted childbirth, whether it be in a maternity hospital or in the home.  Assuming no emergency, where else to put a newborn than at her mother’s breast?  But not here in Bulgaria, not for 24 hours.  What do they feed the baby in that time?  I have no idea, some kind of formula, certainly not from the mother, whose milk of course may or may not have started though nature undoubtedly intends that the process should start from minute 1 of the new life.

And it doesn’t do to ask such questions.  Seemingly, the last thing a new mother in the Maichin Dom or other state maternity hospital needs to be concerned about is being bombarded with information.  Indeed, there appears to operate a policy of ‘don’t ask because we don’t tell’, whether it relates to the question posed above, to immunisation – which as I understand is for hepatitis B and tuberculosis but you’d never know – in the first 24 hours, to likely discharge date, to correct latching technique, stuff like that.

And when mother and newborn are eventually reunited, it is only for the scheduled, three-hourly feeds.  Newborn babies apparently become hungry once every three hours, except during the night when – seemingly – they can go six or more hours.   At any rate, at feeding time the mothers troop dutifully from their rooms to the nursery part of the ward and wait while their babies are wheeled out into the corridor, each there to be claimed.  Sometimes the babies are put in the corridor before the mothers arrive and just sit – lie actually, of course – there until claimed.  Feeding – I hesitate in this soul-less environment to use the term ‘nursing’ – is performed in a bleak, sparsely furnished, pooly lit and heated (we’re talking mid-winter) room given over to the purpose, with mothers and infants left to their own devices, the assumption of the ‘nursing’ staff presumably being that all duly attended their antenatal classes.   Feeding done, the mothers are despatched back to their rooms, babies wheeled back to theirs.

As for visitors, whether father, sibling, grandparents or whoever, they are strictly forbidden access to the ward or to the newborn for the duration of the latter’s stay.  There are just two benches in the ‘public’ part of the floor, outside the lifts, otherwise it’s a case of standing around.

Where the new mother - sans the newborn - can spend time with visitors at Maichin Dom maternity hospital in Sofia.

The newborn may be viewed only through a glass panel.  It is not a welcoming place, indeed the whole message is that childbirth in Bulgaria is the business of the state and that private citizens – the mother necessarily excepted – have no role to play and are barely tolerated.

Close-up of the sign at the entrance to the neonatal unit. In part it reads "Влизането на цивилни лица забранено" - admission to civilians prohibited.

Of course, the main thing with any birth is that both mother and child survive the process and move forward, healthily, into their new life together.  One can assume that is the objective also in Bulgaria.  I don’t profess to know why ‘skin to skin’ is so disdained here, though I do know of a strong focus on avoidance of infection, of a belief that the mother needs to rest and recover after the birth, whether natural or by c-section, and – I suspect critically – of a deeply entrenched belief that the state knows best.  It was certainly how they did it back in the communist times and, at least as regards ‘skin to skin’, new-fangled ideas are not welcomed.

I was interested to see the survey results for two main reasons.  First, as a provider of English-language tuition here in Bulgaria, to glean whatever insights I could into the importance of English proficiency to the Bulgarian workforce.  Secondly, as a New Zealander, to see if my country has any kind of profile with this large group of respondents.

There were a wide range of questions in the survey, addressing both existing workers, currently employed and currently seeking, and tertiary-level students and with responses in many instances broken out into those from respondents currently resident in Bulgaria and those living abroad.

I focused on the survey questions which touched in some way on my areas of interest, as just outlined.  I was on the lookout for, and was surprised not to find, any question directed to the attributes which a job-seeker believed he or she needed to have to optimise employment prospects.  I would have expected bilingualism to have featured, perhaps with the identification of particular languages thought to be necessary.  But as I say, no such question was asked.

What was asked in this respect was, what factors did a respondent consider most important in deciding on a prospective job?  Not surprisingly perhaps, the most ‘ticked’ response was ‘good pay’, with 83% of resident and 69% of ex-patriate Bulgarians selecting this as an important factor.  Incidentally, the next most selected factor – chosen by roughly half of both groups – was ‘good prospects for career development’.

No, where the importance of English as a second language featured was in the questions about most-preferred countries and cities in which to work.  Just over two-thirds of resident respondents answered ‘agree’ or ‘totally agree’ when asked if they would work outside Bulgaria.  Worker mobility has been a feature of, and a much-debated issue for, the country’s demographics since all restrictions on migration were removed with the end of the communist regime over two decades ago.

As for preferred country, it was comforting as an English language provider to see that the leading choice was the United Kingdom, with 51% of all respondents identifying it as the place they’d like to live and work in.   Germany came in a solid second at 47%, followed by the United States at 41%.  And, as regards preferred city, London was the overwhelming favourite, selected by one in every three respondents across the two groups, actually closer to two in every five amongst Bulgaria-resident respondents.  Next most popular choice was New York City, with roughly one in five in both groups choosing the Big Apple, similarly with Berlin.

The point here is that, of the three most desirable countries and cities in the world for Bulgarian workers, two of them require proficiency in English.  Whilst there may be no formal benchmark – or legal requirement – in either the UK or the US, the reality is that lack of a functional command of English will be a major hurdle in either gaining good employment or in subsequent career advancement.

What then of the other English-speaking countries?  Canada was chosen by one in four respondents (26%) and Australia scored well at one in five (21%).  Of their respective cities, Toronto and Sydney featured most strongly in the responses, sharing a three to five percent score amongst a range of other major ‘western’ – and non-English speaking – cities around the world.

And New Zealand?  Well, to the extent this survey is any guide, it doesn’t register on the radar of either resident or ex-patriate Bulgarians of tertiary study and working age.  New Zealand-Aotearoa doesn’t appear amongst the 59 specific countries selected by respondents, though perhaps – or perhaps not – was in the mind of the five percent who ticked ‘other’ as one of their choices.  What the survey results don’t indicate is whether a list of countries was provided in the survey question, and didn’t include New Zealand, or whether it was a free choice.  It probably doesn’t matter much either way.

And, needless to say, neither Auckland nor any other New Zealand city appears in the list of 63 cities selected.

Should this matter to New Zealand?  On one view, not at all – Bulgaria is a very small country whose migrant citizens would make minimal impact on the New Zealand economy.  We have much bigger fish to fry when it comes to attracting quality migrants.  But on another view, yes, it should matter.  Time and again, in first-time contacts with Bulgarians, I have encountered only positive impressions of New Zealand.  They are typically poorly informed impressions, though nonetheless valid for that – green, peaceful, well-off, home of the Hobbits, etc.  Almost mythical, in fact.

And for me therein lies the issue.  Again, to the extent this jobs.bg survey is a guide, whilst New Zealand might be held in high regard by young, educated and resourceful Bulgarians interested in living and working in another country, it is simply not seen as a realistic prospect.  And if that holds for Bulgarians, it might reasonably be supposed that it holds for the citizens of similar countries, both in south-eastern Europe and elsewhere in the world.  I’m referring here to the likes of Serbia, Croatia, Romania, Czech Republic, Poland, the Baltic countries, without needing to venture further afield.

In Bulgaria’s case, things are not helped by the fact that until as recently as 2008, there was no diplomatic relationship with New Zealand – ever.  And it only happened then because of the New Zealand government’s policy of having diplomatic ties with all European Union countries (Bulgaria and its neighbour Romania having joined in 2007).  So we now have an accredited ambassador in Brussels – of course – he being New Zealand’s ambassador to the EU.  But there is zero in-country representation, not even an honorary consul.  And vice versa of course – neither country much cares about the other.

And perhaps there’s another factor in play.  A perception amongst would-be Bulgarian (and other) migrants that New Zealand is – with its rigid points system, its picking and choosing of skills,  its constant fine-tuning of the rules – or moving of the goal-posts, its insistence on a high level of English proficiency – just too tough a nut to crack.

PS:   Having said all that, I was delighted to hear The Mutton Birds’ “Don’t Fear The Reaper” playing on Star FM here in Sofia the other evening.  Somebody in their playlist selection – perhaps at wit’s end? a Peter Jackson fan?* – made that choice and so, a little bit of New Zealand here in the Balkans – not that anyone would’ve known, because they hardly ever identify individual songs.  But still …

*  The song was written for Jackson’s first commercial success, “The Frighteners”, filmed  in Wellington but starring the then prominent Michael J Fox.

Georgi Markov in London

The similarities between Hristo Botev and Georgi Markov are easily enough drawn.  Both established themselves as literate and literary figures at a young age.  Both were products of their times – oppression by dictatorial forces which suppressed freedom of expression – and both died at a young age (Botev in his 20s and Markov in his 40s) for their attempts to bring about their country’s liberation from that oppression.

Yet, whereas the heroic endeavours of the 19th Century’s  Botev, Levski – including the myth-like story of how he acquired his nom de guerre “Lion-like” – and others such as Rakovski, Karavelov and Gotse Delchev are absorbed as mantra by Bulgarian children from their primary years, there is a silence in the curriculum when it comes to the voices against the 45-year communist regime.

When I mentioned my observation to fellow teachers – Bulgarians – the response was hard to read.  I was told that 8th graders – 14 to 15 year olds – are too young to understand this period of recent history, from (roughly) 1944 to 1989.  The former being the year in which Bulgaria was “liberated” by the Soviet army – it marched in unopposed the day after the country declared war on Nazi Germany, until then its ally,  and stayed until the Bulgarian communists had secured their Kremlin-backed control of the country.  The latter, the year in which the Communist Party conceded its grip on absolute power, with long-time party boss Todor Zhivkov being deposed in an internal party coup the day after the fall of the Berlin Wall.

But in the intervening years, Bulgaria was a staunch – at times hard-line – member of the European communist bloc.  People like Georgi Markov were few and far between.  He could have chosen the soft option, as many of his peers did – he could have put his talents at the disposal of the regime.  Instead he defected when the opportunity presented itself – in 1969 – ending up in London, where he learned English and became a voice of dissent haphazardly received, courtesy of the BBC, Radio Free Europe and Deutche Welles, on illegal radio receivers in his home country.

And it was in London that he was silenced – waiting for a bus alongside the Thames – with a lethal dose of ricin injected by umbrella tip into his leg.  To this day his killer, and his killer’s controllers in Sofia and Moscow, remain free.

In the years immediately following the collapse of communism in Bulgaria, the education authorities faced the need for a wholesale revision of the school history curriculum.  Much of what had been taught during the communist period had been distorted to present the party line – literally and figuratively – in ways that bore precious little connection with prior teachings.  And revisionism then repeated itself in the 1990s with  two generations of recent history being excised from the curriculum.  So it has remained.  ”Modern” history is taught from the 17th Century to 1944.  After that, it seems, nothing.  History has stopped and has yet to be restarted.

The possible reasons for this state of affairs are not hard to fathom.  Twenty years out from the end of the communist regime, the syllabus writers by and large remain products of that era.  They were either sympathisers or dissidents – or they pretended to be neither – but in any event they kept their heads down:  an acquired skill which they’ve carried into the post-communist times.  They were young themselves then but now they’re the parents of 8th or 9th graders.  They have their own impressions of those times which are so complex that they cannot resolve the version  to be taught to their children.

In the “western” world, this dilemma no longer presents itself.  The difficult periods of our histories – whether it be the exploitation and annihilation of indigenous peoples in Australia or the United States, or baseless land grabs in New Zealand – are sufficiently reconciled that they have become a part of our collective identity and are taught as such in the high schools.  But the communist era in Bulgaria and elsewhere in central and eastern Europe remains an unhealed wound.  If the doctors – the enlightened minds from that era – cannot yet heal it, there is little hope of the patient – their offspring – finding the treatment for themselves.

The second limb of this requisite mental state is the expression “claim of right”.  It used to be called “colour of right” but that’s not important right now.  More important is, what does it mean?  It means this –

claim of right, in relation to any act, means a belief that the act is lawful, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed

Theft is the taking of someone else’s property dishonestly and without a claim of right.  So again, the onus is on the prosecution to prove the absence of a belief.  In this case, a belief that the taking of the thing was lawful.  What does “lawful” mean?  Well, at this point the definitions dry up but we can take it that it means not “unlawful”, not “illegal”, not “contrary to law”, or suchlike.  I put it this way because a basic tenet of our law – as derived from the common law – is that every act is lawful which is not made unlawful by some Act of our Parliament.

Although I say that the onus falls on the prosecution to prove the absence of such a belief – that the taking was lawful – in the vast majority of run-of-the-mill theft cases, the proven facts will compel such a finding unless the accused puts up some defence that the belief was in fact held.  In this way, the onus effectively passes from the prosecution to the accused.

Take our shoplifting example from part 1.  You walk into a shop, grab some item, secrete it about your person and walk out without paying.  The court is going to find that you acted “without claim of right” without a shadow of a doubt.  No judge, or jury directed by a judge, will dwell more than momentarily on this ingredient unless you give them some reason to suppose that you did have a claim of right.  That is, that you believed that it was lawful – not unlawful – for you to take the item without paying.  You don’t have to prove that belief beyond a reasonable doubt – that standard is only for the prosecution.  You just have to raise such a “reasonable” doubt in the mind of the judge or jury.

But the average shoplifter is going to have a hard time doing that and, mostly, shoplifters won’t even bother.  They back themselves on not getting caught in the first place.

But what about the case of the found fiver in part 1?  Let’s imagine you were observed by some “honest bystander” to pick up the $5 note you spotted on the street, then to go into the nearest pub and plunk it down on the bar in exchange for a beer.  The witness calls the Police.  By which means you find yourself in court charged with theft of the note.  Could you plausibly assert that you had a “claim of right”?  That is, a belief that your actions in taking the note from the footpath and spending it on a beer were lawful?

The definition of “claim of right” gives you some leeway here.  You can be heard to assert such a belief even though it was based on a mistake of fact.  So, you could assert that when you spotted the $5 note on the footpath you immediately formed the belief that it was “lawful” for you to pick it up and use it as your own.  The fact that you were mistaken in that belief doesn’t matter.  What does matter is whether you held it (or, more precisely, whether the prosecution can prove you didn’t).

But we’ve already established in part 1 that you didn’t believe the owner of the note had consented to you treating the note as your own property.  That’s what made you act “dishonestly”.  So, in what other way could you have formed the belief that your action was lawful?

Perhaps, I hear you respond, you could have formed the belief – maybe already held the belief generally – that “finders keepers, losers weepers” is not just an old saying but actually reflects the law of New Zealand.  It doesn’t of course, but scroll back up for a moment and you’ll see that the definition of “claim of right” also allows for a belief to be based on a mistake of law.

So is this what gets you off the hook?  You believed that, if you found someone else’s $5 note on the street, the law says that you could treat it as your $5 note.  That is, your belief was based on a mistake of law but it was a belief nonetheless.  And as the Supreme Court put it so insightfully in Hayes v The Queen in 2008, “a belief is a belief”.

Alas, you’re not out of the woods (the metaphors are running wild at the minute).  The definition of “claim of right” only permits as exculpatory (blame-removing) a belief based on a mistake of law other than the enactment against which the offence is alleged to have been committed.  Well, in our scenario the alleged offence is theft.  The enactment creating the crime of theft is the Crimes Act 1961 – section 219 to be precise.  Take my word for it, the Crimes Act does not anywhere enshrine a principle of “finders keepers, losers weepers”.  Ergo, you can’t set up as a “claim of right” your mistaken belief that, as a matter of law, the finder of lost property is entitled to ownership of it.

Sadly, you’ve run up against another old saying – “ignorance of the law is no excuse”.  And this one is in the law – it’s in section 25 of the Crimes Act, in as many words.

So what’s left?  Nothing, really.  You can’t plausibly claim to have believed that the owner of the $5 – the person who lost it – consented to you having it.  So you acted “dishonestly” in picking up the note and keeping it as your own.  And your mistaken belief – that the law gave you the ownership when you found it – did not give you a “claim of right”.  That, in a nutshell, is that.

Is it really possible that the finder of a $5 note on the street, who picks it up and spends it, has committed theft?  Is that really the law of New Zealand?  The definitions of “dishonestly” and “claim of right” compel an affirmative answer.  Yes Virginia,  it is theft because there is nothing in the definitions of “dishonestly” and “claim of right” to say it isn’t.

Let me stress again a point made in part 1 of this commentary:  there is no room in these definitions for the operation of some “objective” standard – what “ordinary people” might think.  The law regarding the crime of theft can in this regard be said to be black and white.  We are told in concrete terms what are the relevant – the only relevant – beliefs if criminal liability for taking someone else’s property is to be avoided.  There is no moral judgment called or provided for.  There is no defence that our conduct may not have breached some “collective morality”.  The only way that consideration might operate would be in the decision – of the Police or other enforcement agency – whether or not to prosecute.  But such discretion is not a satisfactory proxy for the law itself.

In this, the law of theft can be praised – it is certain.  We all know where we stand.  But do we?  I used the “found fiver” scenario because it’s a common enough occurrence and because – I suggest – a great many of us would keep it as our own.  The prospect that we are thieves in so doing would be appalling to us.  And if that’s the case, what of a law that says we are?  Does it – the law – have a claim of right to do so?

It’s early days yet for these definitions of “dishonestly” and “claim of right”.  They’ve only been in the Crimes Act since 2003.  But one can’t help feeling uneasy …

In an earlier blog, I noted that the n-word is one of the most disapproved words in English, along with the c-word.  But this is undoubtedly in the context of its – the n-word’s – use as a racist slur against black – or brown – people.  Whereas to be fair to Deaker, we can I believe take it that in using the expression “working like a nigger”, he was not intending to insult the farmer by comparing him to a black person.  On the contrary, he was clearly praising his hard-work ethic.

Nor, at least consciously, was Deaker intending to disparage black people.  Of course, the simile is overtly racist in origin.  Undoubtedly it entered the vernacular – along with many other such slurs – in the slavery period, especially in the United States.  From whence we also acquired the metaphor for a weakness in some argument or state of affairs – the “nigger in the woodpile”.  And when Murray Deaker was a lad – and I also – the common version of the children’s counting doggerel was “Eeny meeny miny mo, catch a nigger by his toe”, etc.

What, it seems to me, is revealed by Deaker’s use of the expression to work “like a nigger” is not racism but his age.  I’m sure the expression is still used today in New Zealand – by people of my or my parents’ generation.  They are not racists per se in so doing.  A typical such user – now in his or her 60s or beyond – would not dream of calling a Maori or Polynesian a “nigger”,  a “coon” or a “coconut”.  Unless of course the user is a racist and intends a racist slur.

Societal disapproval of “nigger” in English-speaking countries, evident from the mid-20th Century, can be traced especially to the civil rights movement in the United States, so from the 1960s in particular.  Before then it undoubtedly had been in common – though not polite – usage across the English-speaking world.  But by the 1970s it had become unacceptable in the mainstream – and certainly in the media and politics – to use the word.

Yet close approximations of the word continue to be used in the vernacular of other languages – with or without the racist intent.  So, here in Bulgaria the commonly-used word for an African or dark-skinned person is “негър” – which is definitely not Slavic in origin and presumably comes from the corruption of “negro” which occurred in a number of languages.  “Негър” and its derivatives are routinely used to describe a black person – in movie subtitling for example – and I’ve often heard Bulgarians thus transposing “nigger” when speaking in English of a black person (the two words are almost identical in sound).  They are typically surprised to be told of how the word sounds to native-English speakers.

And I couldn’t help but notice that in the media coverage of  Murray Deaker’s gaff – in the New Zealand Herald for example – there were no qualms about quoting his actual words, including the word “nigger”.  Would the media have felt so free if Deaker had used words like “cunt” or “motherfucker”?  (I’m sure he doesn’t use such language!)  I believe they would not and would instead have resorted to some form of “bleeping”.  But seemingly it’s not offensive to say or write the word “nigger” when quoting what someone else said …

I’ve  also noted, during recent visits to New Zealand, that racism is alive and well in elements of the “white” community.  People may not use the old slurs like “nigger” or “coon” but the bigotry is still there.  In particular, I’ve observed the growing use of  “early settlers” to refer in mocking, sarcastic – and yes, racist – terms to Maori.  It’s nasty, the more so for its insidious subversion of the original usage of the expression, amongst historians, sociologists and the like, to describe Maori as the original human inhabitants of New Zealand.  To my mind, it’s as nasty and vindictive as “nigger”.

It’s such developments,  rather than Murray Deaker’s unwitting use of an outmoded, racially demeaning  simile (and to describe positive qualities no less),  which the Race Relations Commissioner needs to address.

The words “dishonestly and without claim of right” form an essential part of several crimes in New Zealand, especially common or garden theft.   Without them, the taking of someone else’s property would not be a crime.   They were introduced into our criminal law only in 2003 – by a major amendment to the Crimes Act 1961 which replaced in its entirety Part 10, the part of the act headed “Crimes Against Rights of Property”.

Before that, the terminology was “fraudulently and without colour of right” – old language inherited from English law.   Those expressions were not defined in the statute – their meaning had to be discovered from case-law in New Zealand and elsewhere in the common law world going back to the 19^th Century.   Whereas both “dishonestly” and “claim of right” are given specific definitions.

So for a taking of someone else’s property to be theft, it must be done dishonestly and without claim of right.   Let’s start with “dishonestly”.   It might be thought that, whereas “claim of right” needs to be defined – it’s not everyday language after all, the meaning of the word “dishonestly” is obvious.   We all know dishonesty when we see it, don’t we?   We have familiar expressions like “blatant dishonesty” which we wouldn’t use if we didn’t all know and agree what dishonesty is.  Isn’t it simply conduct – or thoughts – which everyone knows to be wrong?   And which should therefore be punished by the criminal law?

Well no, it’s not that simple.   Let’s take an obvious case for starters – shoplifting.   The person who goes into a shop, picks up some goods and walks out without paying has committed theft, no question.   He (or she) has acted “dishonestly and without claim of right” in taking someone else’s property.

But what about finding something?   Say you’re walking along the street when you spot a $5 note on the footpath.   You pick it up, trouser it and later spend it.   Is that also theft?   It wasn’t your property and, being folding stuff, it obviously belonged to someone else – nobody in their right mind throws away a $5 note.

The answer might be that in the first scenario everyone would agree that the taking was illegal whereas in the second case not everyone would agree.   Some people – perhaps many people – would say that it’s not wrong to keep and spend a $5 note found on the street.   Why not?   Well, because there’s no possibility of finding the true owner of the note so if that person can’t be found the finder may as well have it – “finders keepers”.

This can be called a “moral” distinction – we apply moral precepts to what in each of these two cases is the necessary action for theft, the taking of someone else’s property.   But whose morality?   The answer here would be “collective morality” – the norms which by common assent a given community imposes on each of its members.  You might think that this is a pretty sound and sensible way of marking the boundary between lawful and unlawful conduct.

But it’s not the law in New Zealand.   By virtue of the statutory definition, it’s clear that both the shoplifter and the finder of the $5 note have acted “dishonestly”.   The word is defined (in section 217 of the Crimes Act) as follows –

“dishonestly”, in relation to an act or omission, means done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority

No problem here with the shoplifting case – no-one could plausibly claim to believe that they had the shop-owner’s consent to take the goods without paying.   But what about the finding case?   Could the finder hold the belief that the owner of the $5 note – perhaps after discovering its loss – had given permission to the finder to keep it?   More to the point, would a court accept that the finder had such a belief when he or she picked up the note and pocketed it?

Notice that there is no room for the operation of  “collective morality” here.   It doesn’t matter what you or I, or society in general, might think as to the finder’s morality.   The test of “dishonestly” is simply whether the person charged with the crime believed they had the owner’s permission to take the property.   Of course, belief  is a state of mind and therefore a matter of fact to be decided on case-by-case basis.   So, is it possible that a court would accept that the finder of the $5 note had that belief even though it also accepted that the true owner had not given the necessary consent?

It is of course perfectly possible to believe in something which isn’t true – we do it all the time!   And it’s not relevant to liability for theft whether the belief is reasonable.   Any doubt on this score was despatched by the New Zealand Supreme Court in 2008, in Hayes v The Queen (a “benefit fraud” case).   Reasonableness is an objective standard – what “ordinary people” in the place of the defendant might think.   But its role in the definition of “dishonestly” is limited to this – the finder’s claimed belief (as to the owner’s consent) might be so implausible – so unreasonable – that the court would simply refuse to accept it had been held at the time of the taking.

Which, I would suggest, would be the case with the found fiver.   Any one of us selected at random – I suggest – would pick up and keep the note without believing we had the owner’s consent to do so.   Neither would we think to hand it in at the nearest police station or make inquiries in the vicinity or check the “lost and found” notices in our local newspaper.   We would believe all such measures to be a waste of time.   But would we – could we – believe that the owner had simply abandoned their proprietary interest in the note, thus leaving us free to treat it as our own?   I think not.

Perhaps, you might say, the owner would have given such consent if asked – since he or she would have accepted that they would never see the note again.   But what if, say, the owner had been a child given the money as a birthday present, or a poor person for whom $5 was a lot of money?    And what if instead of $5 it had been a $50 note?    Would such an owner give the necessary consent to the finder?

Let’s say you were the finder.   You may have believed that in keeping the found $5 you were not being dishonest .   Applying a “collective morality” test, you may well have been right – society would not hold you accountable.   But applying the test of “dishonestly” in New Zealand law you were being dishonest.   Whatever your state of mind, if you’re being “honest” with yourself, you did not believe you had the owner’s consent to keep the money.

Which brings us to the second limb of the test in New Zealand.   Whether, even though you acted “dishonestly”, you nevertheless had a “claim of right” to the found fiver.

We’ll look at that in part 2.

The Court of Appeal decision has been reported at [2011] 1 NZLR 784, access to which requires a pay subscription.  A copy is freely available at the website of the NZ Legal Information Institute – see http://www.nzlii.org/nz/cases/NZCA/2010/556.html – but the layout, and especially the lack of distinction between the narrative and quoted material, makes it a difficult read.

The Supreme Court is slow to grant leave to appeal from decisions of the Court of Appeal.  But in this instance the public interest clearly warranted this further judicial examination of the issue.  Not only was Field – now doing six years’ imprisonment – the first sitting MP to face corruption charges, but there has been no prior appellate level consideration of the law in New Zealand relating to bribery and corruption generally.

I wrote a commentary on the subject back in 1998 (see here), which focused especially on the issue which is now to be considered by the Supreme Court.  Namely, what meaning should be given to the word “corruptly” as used in both the Crimes Act offences, which penalise the giving and acceptance of bribes in relation to public officers (including MPs), and in the Secret Commissions Act 1910, which penalises certain corrupt practices in the private sector.

Of course, the Supreme Court is to consider the issue only in respect of one offence – the acceptance by a member of Parliament of a bribe, contrary to section 103 of the Crimes Act.  But it can be anticipated that the court will take the opportunity – indeed, that it will be obliged – to provide more general guidance on what, if anything, the word “corruptly” adds to the ingredients which the Crown must prove to secure conviction for bribe-taking and giving in New Zealand.

In Field’s case, a number of points were taken on appeal to the Court of Appeal and all were rejected.  As was the appeal against the effective sentence of six years’ gaol.  But as noted above only the “corruptly” issue is to go to the Supreme Court, it opining when granting leave that the others were “unarguable” (and that the sentence was not manifestly excessive).

A key function of the judge in a jury trial is to give the jury directions on the law which it must apply in deciding on an accused’s guilt.  In many instances the directions are oral.  But in the Field trial, the presiding judge provided the jury with carefully formulated written directions which, in relation to the bribe-taking charges, spelt out the ingredients the Crown had to prove before the jury could convict him.

Of course, it had to be proven that Field was at the material times a sitting MP.  This was not at issue.  Also, that he had received something which could come within the term “bribe”.  The statutory definition made it clear – and the jury was so directed – that non-monetary benefits can constitute bribes.  There was no argument on appeal that bribe-taking could extend to the extensive decorating and repair work done for no payment or at undervalue by Thai immigrants, on whose behalf Field had interceded with the New Zealand immigration authorities, on properties owned by Field in New Zealand and Samoa.

It had also to be proven that Field accepted the bribes – the work done on his properties – in respect of acts performed by him in his capacity as an MP.  Despite Field’s protestations to the contrary from the moment the scandal was first exposed in the media back in 2005, the necessary linkage was sheeted home in evidence at his trial.

The critical issue remained whether Field had accepted those bribes “corruptly”.  In my 1998 commentary I reviewed the limited – and inconsistent – case-law in New Zealand and in other common law jurisdictions where variants of our Secret Commissions Act 1910 had also been enacted.  I surmised that, in relation to bribe-taking and giving under that legislation at least, “a payment will be made corruptly when the payer intends that it should operate as an inducement or reward to the agent to act in a certain way in relation to the principal’s business.”  Conversely, “it will be received corruptly when the agent believes the payer to have that intent”.

In similar vein (as I was gratified to see!), the Field jury was directed that as a matter of law Field acted corruptly under s. 103 of the Crimes Act if he accepted the work on his properties in the “knowledge or belief that the benefit (the work) was done to reward or to influence the accused in respect of immigration assistance provided or to be provided”.  It was of course for the jury to decide on the presence or absence of such state of mind.

On appeal to the Court of Appeal, Field’s lawyers strongly challenged the direction given by the trial judge on the meaning to be given to the term.  It was urged on the appellate court that this direction was wrong.  Rather,  the term “corruptly” required proof that Field accepted the work done by the Thai immigrants as “an inducement for wrongful and dishonest ends, namely, to use his position for an improper or illicit purpose in the performance of his official functions”.

This need for “dishonesty” and its associated moral obloquy was firmly rejected by the Court of Appeal.  In particular, the court held that there was no requirement for the bribe to induce the recipient to do something he should not have done (or forbear from doing something he should) or in any other way to depart from his permitted duties.  The requirement that the bribe-taker must receive the bribe “corruptly” is satisfied albeit the payment is received as an inducement to act – or a reward for having acted – within the scope of the recipient’s functions.

This, one suspects, will be a key focus of the Supreme Court’s deliberations.  If the only requirement for “corruptly” receiving a bribe is an awareness on the recipient’s part that the payment is inducement or reward for doing one’s job, what role does that leave for the term?  Such awareness is arguably inherent elsewhere in the wording of s. 103 – the bribe must be received in respect of an act performed by the accused in his capacity as an MP.  Self-evidently, so the argument would run, this connection could not be established absent proof of the recipient’s awareness of the purpose for which the payment was made to and received by him or her.

It was such considerations that led the eminent New Zealand jurist and exponent of the criminal law, Sir Francis Adams, to doubt that the word “corruptly” added anything to the ingredients of the Crimes Act bribery offences and to suggest that it functioned simply as a “designation” of the proscribed conduct (see the second edition of Adams, Criminal Law and Practice in New Zealand (1971), at para. 821).

What the Supreme Court makes of the issue remains to be seen.  But it can be pertinently observed that, in countries where corruption is rife – where the practice of soliciting and paying bribes is entrenched in all aspects of public life, it is a commonplace for the bribe to act as a reward or inducement to a public servant simply to do his or her job.  It is this culture, this mindset that public service – be it as a police officer, a judge or a politician – provides an opportunity for enrichment over and above one’s salary, which New Zealand must be vigilant to resist.

New Zealand’s state television broadcaster TVNZ is to appeal a ruling of the Broadcasting Standards Authority (BSA) which upheld a citizen complaint about two uses of the word “fucking” in November last year.  TVNZ considers the ruling to be “incomprehensible”.

The word “fuck” and its derivatives have been in the English language for a long time – centuries in fact.  They have been on television for rather less time but these days the usage is considered unremarkable in movies shown on tv after the “watershed” – the time of the evening when content is considered to switch from general, which includes children’s content, to “adult”.  Different countries have different watersheds – in the UK, it’s 9pm whereas in New Zealand it’s 8.30pm.

But the BSA’s ruling in question relates to the use of “fucking” in TV One’s long-running current affairs programme Sunday, which screens for an hour from 7.30pm on Sundays (funnily enough).

The offending item was a documentary piece on the 20th anniversary of what is infamously known in New Zealand as the “Aramoana Massacre”.  In November 1990, a resident of a tiny seaside village in the south of the country shot to death 13 people, including four children and a police officer, before being himself gunned down by police.  The TV One item featured an interview – the first ever apparently – with one of the police officers who confronted and shot the killer after a lengthy and harrowing house-to-house search for him.

During the interview, the now-retired officer recounted what happened when the armed police found the killer baled up in a crib* in the village.  He revealed – hesitantly – that he called out to the man, “You’re fucking good with women and kids.  Come out here and have a go with us.”  Not exactly standard negotiating language but the actual words of the officer, according to him.  A short time later, the killer did indeed emerge into the open, firing one semi-automatic rifle from the hip while also holding another.  The police officer further recounted on the Sunday programme that he – the killer – was shouting “Kill me, fucking kill me”.  They did.

The BSA ruled by a 3 to 1 majority that these two uses of “fucking” breached two of the rules by which all tv and radio broadcasters are bound.  The general prohibition of content which breaches the “good taste and decency” standard and the specific prohibition of content contrary to the interests of children before the watershed.  One member of the Authority – actually it’s chairman – dissented, believing the use of the f-word in the particular context to be an acceptable departure from the norm.

Agencies such as New Zealand’s BSA have a thankless task in this day and age, endeavouring as they do to tread a path between freedom of expression and societal expectations of what is or isn’t to be broadcast.  Matters aren’t assisted by the largely uncontrolled World Wide Web which since its inception has been pushing the boundaries globally of acceptable viewing content.

And there’s no doubt that the f-word is much more acceptable in English-speaking countries today than in bygone years.  In its ruling on the Sunday item, the BSA referenced its own research – actually carried out on its behalf by the Neilsen rating agency – into what New Zealanders considered to be the most unacceptable words to be used on television.  In the most recent survey, conducted in late 2009, it was apparent that “fuck” was dropping down the list, compared with the surveys conducted in 1999 and 2005.#  On offensiveness criteria, it falls significantly below the c-word (“cunt”) and the n-word (“nigger”), which continue to be the most unacceptable words for use on television, at least in New Zealand (and, I would surmise, elsewhere in the native-English world).

Nevertheless, the BSA noted that 75% of New Zealanders still considered “fuck”, “fucking”et al to be either totally or fairly unacceptable for television movie or drama content before the watershed (ie, 8.30pm).  They extrapolated that it should also have that status for what was acknowledged to be serious factual content on a matter of significant public interest.

In due course, I expect to be able to report on what the High Court make of the issue – and possibly thereafter the Court of Appeal and perhaps even the Supreme Court.  It’s that sort of issue. TVNZ is plainly upset that its no doubt carefully considered assessment – in allowing “fucking” to go to air expletive undeleted – should have been so belittled by the BSA.  The agency for its part can be expected to vigorously defend its right – indeed its obligation – to make the call.

As noted earlier, we native-speakers of English use the f-word a lot.  Sometimes in its literal – ie, sexual – meaning but much more often as a way of giving emphasis to something being said, with no sexual connotation whatever.  It’s very much in this wider adjectival use that “fucking” can be heard in everyday speech across the English-speaking world.  Not by everybody, to be sure, but by a lot of people.

Including the cold-blooded killer of 13 people in New Zealand in 1990 and one of the police officers who despatched him.  The courts have been presented with a tricky one.

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*  ”crib” means a holiday dwelling, typically seaside and of modest proportions.  Its use in this context is confined to the southern part of New Zealand, whose population is largely of Scottish ancestry.  Elsewhere in the country such a dwelling is a “bach” (rhymes with “patch”).

#  Interested readers may read the full survey report – and learn a lot of naughty words – at http://www.bsa.govt.nz/assets/Research/What-Not-to-Swear-Full-BSA2010.pdf

Update, November 2011:

In his decision in late October, Justice Simon France in the High Court emphatically overturned the Broadcasting Standards Authority’s censure of Television New Zealand for leaving  ’fucking’ – twice – unexpurgated in its Sunday feature on the Aromoana massacre, describing it as ‘plainly wrong’.   In other words, the BSA got judicially jumped on from a great height.  TVNZ, needless to say, was pleased.  When I find a copy of the actual judgment – which, inexplicably, I haven’t been able to so far – I’ll comment further.

Though, it seems that the Crown is not denying that it has recouped – or will eventually recoup – much more than it paid out.  As well as being a consummate con-man, Patterson was seemingly a canny investor.   He reportedly invested a significant chunk of his ill-gotten gains in gold and stocks – particularly shares in Apple Inc.  The value of gold has of course been heading north for the past couple of years, courtesy of the global financial crisis and attendant “flight to safety”.  As I write this, an ounce of gold is fetching around US$1,500 on international markets, compared with $600-odd during 2006, Patterson’s third and last year of offending.  And Apple can seemingly do no wrong these days.  At the beginning of 2007, around the time the Crown was in a position to seek control of Patterson’s investments, a share in Apple Inc traded at around US$85.  At the beginning of this month – April 2011 – the share price was $350 give or take.  To put it simplistically, every dollar of benefit receipts which Patterson put into Apple stock in, say, 2006 is worth four to five dollars today.  We’ll have that, thanks very much, says the Crown.

But it’s worth keeping in mind that, under the statutory regime by which the Crown claims the benefit of Patterson’s investments, the gold bullion and the stocks which he acquired are not the Crown’s property.

The operative legislation is the Proceeds of Crime Act 1991, since replaced by the Criminal Proceeds (Recovery) Act 2009, but still in force for cases which arose during its lifetime.  In essence, the Proceeds of Crime Act provided for forfeiture of specific assets used in the commission of a crime (eg, a getaway car used in a bank robbery or a house converted to a P lab) and for the making of a “pecuniary penalty” order in respect of the proceeds of a crime.

It is this second mechanism which applies in the Patterson case. Under s. 25 of the Act, the court making the order had first to be satisfied that the defendant had “derived benefits” from the commission of the crimes of which he’d been convicted and had then to assess the value of such benefits.  Having done so, the court could order the defendant to pay to the Crown an amount “not greater than” that assessed benefit.  The order operated in law as a debt due to and recoverable by the Crown in civil proceedings.

The underlying assumption is that, at some fixed point in time (the point at which the order is to be made), there will be evidence of an identifiable benefit to the perpetrator which derived from the offending.  The benefit could be in the form of cash (Patterson reportedly had $750,000 in folding stuff stashed in his garden) or it could be property of any conceivable type, so long as the link back to the crime could be established to the court’s satisfaction.

It’s also apparent from s. 28(2) of the Act that the “pecuniary penalty” could reflect any accretion in the value of such benefit (called “excess”) in the period up to the point at which the order was made.

There was nothing in the Proceeds of Crimes Act to say that a pecuniary penalty order had to be equated with the monetary gain from the offending per se.  The inquiry was directed to the difference in value of the defendant’s assets before the offending started and some point during or after it had ceased.  But an underlying presumption is surely that, from the moment the order was made, the value of those assets would be fixed.  Certainly there was no mechanism – at least no specific mechanism – in the Act for the Crown to keep going back to the court to get a new pecuniary penalty order at an inflated amount to reflect an ongoing appreciation in the value of the defendant’s property.  Yet, presumably, this is what has been happening in Patterson’s case.

Moreover, a pecuniary penalty order under the Proceeds of Crime Act did not operate to transfer to the Crown ownership of property acquired by the defendant – known as “tainted” assets.  Instead, another provision – s. 29(3) – empowered the court to “make an order declaring that the property is available to satisfy the [pecuniary penalty] order”.  Given that (as noted above) recovery of the pecuniary penalty was to mimic civil proceedings for debt,  s.29(3) seemingly operated as a charging order in favour of the Crown over the specified asset.  That is to say, the Crown could if needs be (ie, if the defendant didn’t acquiesce) seek an order compelling the sale of the asset, with its liquidated value being applied in satisfaction of the pecuniary penalty order.

So far, so good.  But applying ordinary principles, if a creditor obtains and executes  a charging order over its debtor’s asset and it transpires that the asset is worth more than the debt, there is no question of the creditor being able to keep the excess.  Manifestly that would be seen as an unjustifiable windfall.  The balance left after the debt is discharged would belong to the debtor.  Again, it needs to be stressed that it is not the creditor’s asset – its interest is only to the extent of the debt due.

Is the position otherwise with a pecuniary penalty order under the Proceeds of Crimes Act?  Well, in the limited opportunity afforded me by the World Wide Web from here in Bulgaria, I can’t say with any certainty.  In particular, I haven’t been able to find any authoritative statement one way or the other.  There may be a case exactly on point but accessible only via a pay website (such as LexisNexis in New Zealand).

So I’m sticking with general principles.  Responding to Patterson’s complaint, MSD boss Hughes  retorted that Patterson was “deluded” if he thought he had any entitlement to the profit to be had on liquidation of the bullion and stocks acquired by him from the proceeds of his benefit fraud.

Indeed the very idea, according to Hughes, was “as appalling as it is outrageous”.  And yet, s. 28 of the Proceeds of Crimes Act contains words which suggest that Patterson’s grievance should not be so easily dismissed.  Sub-section (3) stated that if the defendant could satisfy the court that all or part of the increase in value of a proceeds-derived asset “was due to causes unrelated to the commission of the offence or offences”, that “excess” was not to be included in the amount of the pecuniary penalty.

We have here a situation where Patterson defrauded the Crown of $3.4 million or thereabouts.  Ergo, he owed the Crown that amount (plus costs of detection and recovery, let’s assume).  Through savvy investment, he converted the proceeds of his criminal conduct into assets worth a great deal more than $3.4 million.  The increase in the value of the gold bullion is attributable to the global financial crisis;  the increase in the value of Apple stock is attributable to the continuing Steve Jobs miracle and the spectacular success of recent Apple product launches, notably iPad.  It seems clear enough that these are events unrelated to Patterson’s offending.

Additionally,  it needed Patterson’s  investment choices to materialise these gains.  Is there not the basis of some intervening cause or causes of the kind envisaged by s. 28(3)?  Of course, Patterson would not have been in the position to make these choices had he not perpetrated his massive frauds in the first place.  But he could have squandered the bulk of the proceeds, as many of his ilk do, on gambling, loose women and high-living.  Instead, it seems (again courtesy of MSD’s Hughes, in a 2007 press release) that Patterson contented himself with “tropical fish and gardening” – albeit on a lavish scale.

We now know Wayne Patterson was an experienced fraudster on an international scale.  He had done time in the United States and Australia. His crimes in New Zealand were enormous.  But he acknowledged them when caught (he pleaded guilty), he co-operated with the Crown in recovery of the amount he obtained (the MSD said so), and he got eight years in jail (with a non-parole period of five years).  In short, it might be thought, justice has been done.

Yet, the stance of the MSD’s Hughes is that his outfit is entitled to extract as much as it wants – and is able to get – from the assets Patterson purchased with the benefit payments.  Back in 2007, the ministry published a table showing that it would actually recoup $467,000 more than it had paid out to Patterson (see its press release at http://www.msd.govt.nz/about-msd-and-our-work/newsroom/media-releases/2007/pr-2007-10-12-b.html and the link at the bottom to a spreadsheet “Reconciliation of Payments Made ).  But now it seems the windfall will be in the millions of dollars.

Let’s note again:  the assets which the Crown is – apparently – exploiting for this purpose do not belong to it.  If the Crown is – as seems to be the case – holding on to the Apple shares (and the gold) in order to ride the market and extract even more funds at the end of the day, on what basis can it justify that behaviour?  The notion that “crime doesn’t pay”?  The Crown, through the ineptitude of the MSD, lost $3.4 million.  It got it back with interest.  The rationale of the Proceeds of Crime Act has seemingly been manifested and satisfied.  Is it not now the Crown that might be accountable for its unjust enrichment?