The previous Swimwatch post presented a case for the prosecution and a case for the defense in the Olivia Podmore suicide. Were Sport New Zealand and Cycling New Zealand (CNZ) guilty or innocent of aiding and abetting her death? Were their actions in breach of Section 179 of the Crimes Act 1961?

Each reader can, of course, make up their mind on that question. I have made a decision. I would vote – not guilty. And here is why.

Section 179 of the Crimes Act 1961 says,

179 Aiding and abetting suicide

Every one is liable to imprisonment who incites any person to commit suicide, if that person commits suicide in consequence thereof.

I feel Sport New Zealand and CNZ’s behaviour came close to being in breach of this law. However, they escape because Section 179 requires Sport New Zealand and CNZ to have the intent or the purpose that suicide would result from their behaviour. I do not believe that is the case. Sport New Zealand and CNZ should have seen the pressure they were applying to Olivia was incredibly dangerous. The fact they did not, is evidence of their blind arrogance and stupidity perhaps but not of an intent to cause suicide. And for that reason, my vote is not guilty.

However, not guilty on the charge of aiding and abetting suicide leaves the question – is there another law that does not require the same level of intent? Now remembering, I am not a lawyer, but I think there maybe another law that Sport New Zealand and CNZ’s need to answer – the law of Culpable Homicide. This is what that law says.

60 Culpable Homicide

Homicide is culpable when it consists in the killing of any person by causing that person by threats or by deception, to do an act which causes his or her death.

In my opinion, Sport New Zealand and CNZ committed this crime when they engaged in reckless conduct which created substantial jeopardy of severe trauma to Olivia Podmore. They got her involved in a nasty corporate cover-up. They forced her to lie by using an implied threat to her financial and sporting life. Under duress she went along with their demands. And then they failed to select her for the Tokyo Games. She gave them everything, including her good name, her self-esteem and her honour and Sport New Zealand and CNZ punished her for it.

Was that reckless conduct? It sure was. Reckless conduct is conduct that exhibits a disregard of foreseeable consequences to another (Olivia) from acts or omissions. Sport New Zealand and CNZ need not intentionally have caused the resulting harm to Olivia. The ultimate question is whether, under all the circumstances, the accused’s behaviour was sufficiently egregious that made it actually and imminently dangerous to Olivia’s rights and safety.

Too right, that is what they did. And so, with the provision of intent gone, the law of culpable homicide fits more easily with Olivia’s case. On that I would vote – guilty.

The purpose of this and the two previous Swimwatch posts is not for me to play lawyers. The purpose is to encourage real lawyers to look at the circumstances of Olivia’s death and determine whether a serious law has been broken. Lawyer or not, I find it difficult to believe that New Zealand does not have laws that protect us from the deception and dishonesty that caused Olivia’s death. For too long National Sporting Organisations have acted like petty dictatorships, free of any sanction for grievously bad behaviour.

It is surprising that an Olivia type tragedy has not happen before. Certainly swimming, canoeing and rowing have gone close. Olivia’s death made it a reality. Real lawyers must make case-law from her death. There has to be a “Harm Principle” law. There has to be a punishment. Athletes need protection. Crime, prosecution and punishment in a real Court are their best protection. We will see.

PS – The “Harm Principle” refers to a theory of crime that an action can be banned if it causes harm to someone.

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