Keith Locke reflects on the ‘claim of right defence’ in the Crimes Amendment Bill (No 2), first reading

we do support the intention of the bill to put more moral sanction on assaults on children



The Crimes Amendment Bill (No 2) has a number of different elements to it. Some parts of the bill the Green Party supports, and some parts we are particularly worried about. On balance, we have decided to oppose this bill at the first reading, although we are hopeful that when it goes to the select committee a number of changes will be made, and we will be able to support it at subsequent stages.

One part of the bill that is not at the top of the bill and might have been lost a bit in the commentary, but which we think is very important, is the section that gravely limits what is traditionally called “the claim of right” or is sometimes called “the colour of right”. We are worried there has been something of a knee-jerk reaction to the decision in a case often known as the “Waihopai Three” case, where three men were charged with criminal damage at the Waihopai spy station, and were found not guilty. They used the claim of right as a key part of their defence.

It is unfortunate when changes in law are made mainly in response to the result of one court case, particularly when we are looking, as we are here, at a common law provision that has existed in many countries, still exists in many countries, and has a very important tradition in common law. To just go back to the original text of the claim of right in the Crimes Act before this amendment bill: “claim of right, in relation to any act, means a belief that the act is lawful, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed”. It is a fairly broad concept that even though a person cannot misinterpret the actual offence for which he or she is charged, if that person puts it in a broader context, or makes some mistake in relation to that broader context, or if some other factor comes in, then perhaps he or she can be found to be not guilty.

The change suggested in the bill is to restrict the use of the claim of right to cases where the person charged has some proprietary or possessory right in property. The amendment takes out the belief that the act is lawful, and substitutes: “‘at the time of the act of a proprietary or possessory right in property, being property in relation to which the offence is alleged to have been committed’.” Just to put it in its simplest terms, that could apply—and correctly apply—to a case in which somebody picks up a bag, as some of us have done at times, and runs off with the bag, thinking it is his or her bag. Later on, that person realises that it was someone else’s bag, but it looked identical to the bag picked up. In that case, technically that person is guilty of theft, because he or she has run away with somebody else’s bag, but in a court setting the court says that no, the person had an honest belief that it was his or her bag. Restricting the claim of right in that way has some application, but a very limited application.

It would not apply even to something that is fairly similar in a property sense in which, for example, a person hears a scream, and he or she thinks it is someone in distress. They are sitting in their own home and hear a scream. They think it is coming from next door, and that someone is being attacked. They go next door and bash down the door because they think it is rather urgent. Then they realise that the scream really came from the next house over, and even that may be something else. It might be someone screaming at the All Blacks on television, or something.

They had a genuine belief that they were trying to help someone in distress, yet their next-door neighbour whose door they have just bashed down says they will take them to court because it was wilful damage, etc. They might try to use the claim of right, which people traditionally would use, but in this case because they had no proprietary relationship to the property next door, they cannot use the claim of right. The

Waihopai case was broader than that, as it has been in many other cases.

The three people who were charged with criminal damage said they conducted an action that caused some damage to the dome surrounding the dish at Waihopai—they did not deny that—but they said that the context or the claim of right took into account broader, international laws against committing murder and wars, conducting an illegal war in the case of Iraq, which they referred to a lot in the court case, and the rights that New Zealanders uphold under the Rome treaty, which governs the International Criminal Court, etc. The three people said they were obeying a lot of international law and that it outweighed or provided a context for them committing criminal damage of the dome at Waihopai. When claim of right is being discussed in legal circles, it is not just an honest belief and it is not just a moral entitlement; there also has to be a legal entitlement, which is why the three people had to provide evidence of the other laws in their court case and why they had to present evidence that the spy station at Waihopai had some relationship to the breaking of those laws. If one reads the court transcript one sees that they refer particularly to the evidence of a Government communications security headquarters whistle-blower in Britain who came out with a memo from a chap called Frank Koza of the National Security Agency—which Waihopai is linked up to and does its spying for—who said just prior to the invasion of Iraq that the National Security Agency and its offshoots would conduct a whole set of interceptions. He specified that the interceptions would be of dissident members of the United Nations Security Council in order to try to get a majority for the American invasion of Iraq. They failed to get that UN majority but in the process spied illegally on United Nations delegations in their communications back to their homes. There are a whole lot of things there. One of the problems with this issue is that in this particular case they were challenging Government policies, and Governments can react by saying they do not want their Government policies being attacked so they will change the law. That is what is happening in this case. Rather than the Government admitting that perhaps the court, jury, and judge got it right in the Waihopai case, it is just throwing out the claim of right, even though it has a long tradition. That is very unfortunate.

With regard to the other part of the Crimes Amendment Bill (No 2), we do support the intention of the bill to put more moral sanction on assaults on children. That is very good, but as we have said and as our co-leader Metiria Turei has said in the past, we are concerned that lengthening the sentences that apply, particularly to family members in a place where children might be abused, might provide a certain disincentive from reporting crimes. Family members will not want to get the other family member into trouble if he or she will be given a 10-year sentence. Some of the people in that household might be abused and very scared of coming forward to the police. There are problems and it is much better to somehow bring in techniques and support for families and extended families to bring them on side so that they can constrain and prevent violence in the home. The Green Party is a bit critical of some of those provisions, and our criticisms parallel those of the New Zealand Nurses Organisation and others.