Editorial: Forget lawsuit but review trio's defence

The Waihopai spy base protestors leaving court. Photo / Supplied

There seems no real point in the Crown's mounting a $1.1 million damages claim against the Waihopai spy base attackers. It may be an open-and-shut case in which all that has to be proved is that damage was caused and that the three members of the Ploughshares peace movement were responsible for it. But it would be a pyrrhic victory. According to one of the trio, teacher Adrian Leason, the men have less than $1000 between them. The Crown would receive little, or nothing, after spending a considerable sum bringing a civil case. At the same time, it would provide the trio with a platform to further expound on the satellite station and their view of its role in the Echelon electronic eavesdropping network.

That, indeed, is how the three men say they would view a damages claim. "In many ways, it would be a real gift to us," says Mr Leason. "It would keep up the profile of the real issue, which is the base's involvement in humanitarian law-breaking because it would keep the base in the media spotlight." That "gift" outweighs the only really cogent argument for bringing a damages claim: that it would discourage others who might think they would get away with similar protest action.

That discouragement would, however, be delivered far more effectively by a course of action already set in train by the Solicitor-General. David Collins, QC, while concluding the Crown cannot appeal against the jury's verdict acquitting the three men, has raised "serious questions" about the "claim of right" defence. The trio used this when asserting that they carried out the assault on Waihopai in the genuine, if not necessarily correct, belief that it was lawful for them to do so.

To negate this, the Crown was required to jump the substantial hurdle of proving beyond a reasonable doubt that the men's thinking was not an actual belief but a hope or expectation. It could not do that to the satisfaction of the jury, although it seems reasonable to assume that if the men genuinely believed in the lawfulness of their act, they would not, for example, have carried it out at night. As the Solicitor-General noted, the defence is able to be advanced "regardless of the reasonableness of that belief".

"Claim of right" is enshrined in the 1961 Crimes Act for cases such as those involving people who have unwittingly bought stolen goods. It defies belief that the framers of that legislation envisaged it being used by men who freely admitted cutting through the fence surrounding a spy station, breaking into the base and slashing an inflatable plastic dome covering a satellite dish. The trial judge had his doubts, reserving a question of law relating to "claim of right".

The Crown's right of appeal is severely circumscribed. But the Solicitor-General has concluded, quite rightly, that the case raises major questions about the appropriateness of the Crown's being required to prove that an accused acted without "claim of right" being used again in similar circumstances. He has, therefore, referred the matter to the Justice Minister. After a review, the Cabinet will decide if the Crimes Act should be amended to stop the defence being used in situations like this.

This, not a costly civil case, is the most logical approach. Nothing will be gained from a damages claim, except by the Waihopai protesters. Others, with similarly slender financial resources, will not be deterred from attacking public property. But they will face defeat in the courtroom if the law is changed. The trial judge ruled out the Waihopai attackers' other defence, encompassed broadly by their view that they were accomplishing a "greater good", saying it did not exist legally. They, and others of their ilk, would have nothing to fall back on if deprived of the "claim of right" defence.