Keith Locke on the Crimes Amendment Bill (No 2) – In Committee



On behalf of the Green Party I want to address clause 4, which covers the claim of right. This is the clause that seriously concerns us. It seems that the amendment to the Crimes Act is motivated by the Crown losing a particular case, sometimes known as Waihopai 3. The defendants in that case used the claim of right, sometimes called the colour of right, as a defence. Currently in the Crimes Act the claim of right, defined “in relation to any act, means a belief that the act was lawful although that belief may be based on ignorance or mistake of fact, or any matter of law other than the enactment against which the offence is alleged to have been committed.” The change in the bill before us is to make it a belief “at the time of the act in a proprietary or possessory right in property, in relation to which the offence is alleged to have been committed.” I think it applies in its very restricted form to, for example, someone who picks up a bag from the conveyor belt at an airport, chucks it in the back of their car, and drives off. All of sudden they see blue flashing lights behind them. Somebody saw them steal a bag off the conveyor belt. The person says: “Look, I must have picked up the wrong bag. It looks very much like my bag.” Of course they would not get away with it if it had been stolen from, say, a rich-looking tourist and it was a completely different type of bag. If there was a reasonable belief that they thought it was their bag, they would get off the charge.

There is an element of reasonableness in this amended law, even though the word “reasonableness” does not appear. If we look at the law it is narrowing, there is also implicitly, even if not explicitly, a reference to reasonableness. Sometimes the laws around colour of right or claim of right do have an explicit reference to reasonableness, in terms of the mistake or belief. But in this case, in both the amended law and the original law there is not that reference to reasonableness, but implicitly it is there. This is true internationally.

Another example, which now unfortunately is not covered by the claim of right, is somebody who hears someone in the house next door yelling and screaming. It appears that someone is being attacked. The neighbour breaks down the door and rushes in, only to find that the noise is coming from the television set. The owner of the house gets very upset and takes the neighbour to court for breaking down the door, criminal damage, etc. They may be able to get off the charge if it is thought that they honestly believed that there was some real danger to the person inside the house and they made a genuine mistake.

The Waihopai 3 case was in some ways an extension of that principle in the two cases I have mentioned. In the first case the person technically might have thieved the bag from the conveyer belt. In the case of breaking down the neighbour’s door, they may technically have committed damage to the door. In the case of Waihopai, the defendants did not deny that they had technically damaged the covering of the satellite dish. The question is: was there some reason, a genuine belief, that overrode that technical breach of the law? In the case of the Waihopai 3 case they argued that they were doing it to abide by a larger purpose, a larger law—that is, to stop the continuing killing of people by the American Government in the illegal war in Iraq. The jury in that case presumably accepted that argument. Some of those questions have been challenged in a recent decision by Justice Gendall in the High Court, and this has been covered a bit in the media. Justice Gendall went back to that case and assessed whether there was reasonableness in what the Waihopai 3 case did. He brought out some very interesting points. He said that the defendants had not “identified imminent peril or danger to an identified person or persons.” The defendants in the earlier case had argued that they were not specifying people. There was an ongoing illegal war where hundreds of thousands of people had been indirectly or directly killed, and the whole question of legality of that war related to the legality of what they were doing in damaging the dome at Waihopai.

The other element that Justice Gendall brought up was “the legality of a decision by the executive arm of Government to go to wars beyond the capacity of the courts.” That is, we cannot judge something if it is related to something happening in another country by another Government, which I do not think was the way that the District Court jury had decided in the Waihopai 3 case. But that raises a whole interesting question of the relationship of New Zealand law to international law. Another point Justice Gendall raised was that clearly it was an active protest, but he said that to qualify it had to be an act of rescuing particular people.

So there is a controversial area there, of whether the courts can accept that protests might have a good effect in terms of upholding international law and protecting lives in another country. It could be argued, if we look at the Arab Spring, that some of the mass protests have ended dictatorships that were killing people, imprisoning people, and torturing people. Although the protests might not have been a direct act of rescue, in Justice Gendall’s terms, they were acts of protests that were helping to uphold the law and protect lives. There are a whole lot of controversial issues here, which is why I think of what Rajen Prasad said in terms of some of the submissions before the select committee. We should not really be rushing to change the Crimes Act provision for claim of right just on the basis of one case, when these issues are very much alive in debate.

We should take our time. It is not as if there has been a whole pile of cases beyond property-related cases using the claim of right. We do not need to rush to change it, so the Green Party is very strongly against changing the law on that basis.

I think of that whole question of the relationship of domestic law to international law, and the extent to which not only Governments can help uphold international law, particularly law relating to aggression, the killing of people, genocide, and all of these things and how they can have a role, but also communities, protestors, and all kinds of people can engage in a similar exercise.

In fact, we have been celebrating the 30


anniversary of the anti-Springbok tour demonstrations, where clearly, by all accounts, including Nelson Mandela’s, the protest action then, some of which did technically breach laws, helped end the suffering of black people in particular in South Africa. In one sense, many of the defendants in those anti-Springbok tour cases 30 years ago used a kind of claim of right defence, even if they did not actually spell it out that way. They were given light sentences, or no sentences, or community service, or whatever, for sitting on planes, motorways, and God knows what. I think that even some people—it might have been at Auckland Airport or Wellington Airport—actually invaded the airport and sat on a plane. Today one would be carted off for a major terrorist offence, but they were given community service because of their motive for helping people overseas. Thank you.