Editorial: Righting this wrong not as easy as it looks

Father Peter Murnane. Photo / Dean Purcell

Father Peter Murnane, one of the activists acquitted for attacking the Waihopai spy base, says a change to the law would not stop him doing something similar again. Maybe not. But it would result in him and his colleagues receiving their just deserts.

No longer would they be able to fall back on the "claim of right" defence, which enabled them to say they carried out the assault on Waihopai in the genuine, if not necessarily correct, belief that it was lawful for them to do so because they were saving lives in Iraq by disrupting satellite transmissions. But if they will have a problem so, more immediately, does the Government. Changing the law is not a straightforward matter and it could yet take a wrong turn.

Certainly, it must not repeal the defence, which is one of the options offered by the Ministry of Justice. It has a valid role in allowing defendants to avoid criminal liability for a limited number of property offences, including those who have unwittingly bought stolen goods. Generally, it has been used by people with a direct interest in the property concerned. Its employment by the Waihopai trio transported it into a whole new realm. In no way can Parliament have intended the defence to excuse men who admitted cutting through a spy station fence and slashing an inflatable plastic dome covering a satellite dish.

The ministry suggests four reform remedies. The first is shifting the burden of proof, so the defendant would have to prove they had a claim of right, rather than the prosecution needing to prove they did not. The prosecution at the Waihopai trial could not prove to the jury's satisfaction that the activists did not genuinely believe their actions were lawful. This was not entirely surprising because providing such proof will always be extremely difficult. But shifting the burden of proof is no answer. It would undermine a fundamental presumption of the justice system, that the state wholly shoulders this burden. It is up to it to present compelling evidence. The defendant is not required to prove innocence. That burden should not be shifted.

One of the ministry's other options, which would require the defendant to show their actions or beliefs were "reasonable", suffers from the same drawback. A further alternative is the amending of some or all the 14 offences in the Crimes Act that have claim of right as an element, thereby ensuring the defence is not wider than appropriate. Such an approach has some appeal but not to the extent of the ministry's final option of adding a property-interest criterion to claim of right.

This would restrict the applicability of the defence to instances where the defendants had a legal claim - a "proprietary or possessory right" - to the property concerned. Obviously, that was not the case with the Waihopai activists, who wilfully damaged property belonging to the Government Communications Security Bureau. The men acknowledged they had no right or interest in the station. If such a change were made they, and others like them, could no longer use the claim of right defence. This approach is used in the Australian Capital Territory and the Northern Territory.

The New Zealand law must be amended to bring the defence back into step internationally. It is wrong to suggest use of the claim of right by the Waihopai activists was an aberration and, therefore, no basis for change.

Its very success in this case means it would be used by others to justify similar assault on public property. There could be more farcical trial outcomes. The Government is correct to act. But in righting a wrong, it must not choose a path that needlessly erodes a fundamental of the justice system.