Review of spy case defence is welcomed

Peter Murnane (centre), Adrian Leason (left) and Sam Land. Photo / Tim Cuff

The New Zealand Law Society is welcoming a Government review of the defence used in the Waihopai spy base case, where three activists were acquitted of damaging property because their actions were based on a belief that what they did was lawful.

Yesterday Justice Minister Simon Power announced the review of the "claim of right" defence, including looking at whether there needed to be a "reasonableness element" to it.

Last month a jury found Adrian Leason, 45, Peter Murnane, 69, and Sam Land, 26, not guilty of burglary or wilful damage at the Government Communications Security Bureau base at Waihopai.

The Crown is considering a civil case for $1.1 million in damages.

In April 2008, after cutting through electric fences, the men slashed one of two inflatable domes covering satellite dishes.

Their defence was based on a "claim of right", saying they had saved lives in Iraq by disrupting satellite transmissions. It is believed it was the first time such a defence was successful in New Zealand.

The Law Society's convener of the criminal law subcommittee, Jonathan Krebs, said a review was timely.

"The defence of a 'claim of right' certainly has a place, and it's an important and fundamental defence to have.

"But if the defence allows someone to be acquitted where there was criminal intent, however well-principled they thought it to be, then there is something wrong with the criminal law and it may need to be adjusted slightly.

He was surprised that the defence was found to apply in that case and even more surprised that the jury acquitted them in what seemed like a blatant strategy to destroy property.

The defence, often used by receivers of stolen goods, rests on a belief that the action was lawful.

Mr Power said the defence was connected to the argument that a criminal intention needs to be shown for people to be convicted of a crime.

But he said the defence raised questions, including whether it should have a "reasonableness element regarding either the defendant's understanding of the relevant law or the proportionality of the defendant's actions".

Green MP Keith Locke said the review was a waste of time and the law already encompassed the concepts of "proportionality" and "reasonableness".

Mr Power said he expected preliminary advice in two months.

Criminal lawyer Gary Gotlieb said the law should be retained.

"It's a technical defence that needs to be properly considered. Strong moral conviction doesn't often have much to do with the law, but in some cases it does."