Spy base defence faces reform or axe

The 'Waihopai Three' reached one of two inflatable domes covering satellite dishes and slashed it with sickles. Photo / Tim Cuff

The 'claim of right' defence that saw three activists escape conviction despite wilfully damaging a communications base at Waihopai will be repealed or reformed, the Government has announced.

In March the defence was used in the case against Adrian Leason, 45, Peter Murnane, 69, and Sam Land, 26, who a jury found not guilty of burglary or wilful damage at the Government Communications Security Bureau base.

The defence was based on a belief that what they did was lawful and for the greater good.

Today Justice Minister Simon Power said the 'claim of right' defence will be reformed or repealed. He outlined five options which will be looked into and reported back to him in September.

Shifting the burden of proof

Amending the definition of 'claim of right' so a defendant would have to prove they have a 'claim of right', rather than the prosecution needing to prove they do not.

Adding a reasonableness element

Amending the definition of 'claim of right' so a defendant would have to show that at the time of the offence their actions and/or beliefs were reasonable.

Amending the offences that have 'claim of right' as an element

Amending some or all of the 14 offences in the Crimes Act that have 'claim of right' as an element to ensure the defence is not wider than appropriate.

Adding a property interest criterion

Amending the defence of 'claim of right' so only a defendant with a legal claim to the property concerned could use the defence.

Repealing the defence

Remove the 'claim of right' defence from the Crimes Act so the defence is not available to any defendant in future.

Minister outlines reasons for change

"The 'claim of right' defence has a long history in common law and was used in New Zealand well before it was formally recognised in the Crimes Act," Mr Power said.

"It's clear it was not intended to be used to excuse the behaviour of people who take or damage property in cases where they are not claiming a personal property right.

"Concern has been raised that the legislative scope of 'claim of right' has become too broad and that the defence should not be able to be used as it was in the Waihopai case, and I agree with that.

"It also appears our law on this is out of step with comparable overseas jurisdictions, including England, Canada, and several Australian states."

In April, 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 New Zealand Law Society previously welcomed the review of the 'claim of right' defence.

"The defence of a 'claim of right' certainly has a place, and it's an important and fundamental defence to have," said Jonathan Krebs, the society's convener of the criminal law subcommittee.

"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. It was connected to the argument that a criminal intention needs to be shown for people to be convicted of a crime.