Keith Locke
Removing ‘claim of right’ dangerous

The government is a poor loser. It didn’t bother to appeal after it lost the ‘intentional damage’ case against the three men who pricked a dome at the Waihopai spybase. But it hasn’t let the matter rest. Last month it laid a $1 million damages claim against the men.

To add insult to injury, Justice Minister Simon Power is now trying to change a law which was used to acquit the Waihopai Three. Yesterday he announced that legislation was being drafted so that people could only use ‘claim of right’ defence to excuse the taking or damaging of property when they believed they have ‘a proprietary or possessory right in the property involved’.

I think it’s quite dangerous to use one court decision to change a centuries-old law. It is important, even if it is hard to get your head around.

Basically, ‘claim of right’ means that even though you technically infringe one law, such as taking or damaging someone else’s property, you can argue you believed, looking at the total picture, that your actions were lawful because:

-        either you genuinely thought it was your property (eg. your bag and another might look the same),

-       or  you thought, even if mistakenly, that other laws came into play (eg: the laws against people being harmed or killed)

The Waihopai Three essentially used the latter part of the ‘claim of right’ defence, that they believed their actions was saving lives in Iraq, and they backed this up with extensive evidence, including from a British intelligence whistleblower, Katherine Gunn.

There are more close-to-home reasons why the Crimes Act does not restrict the ‘claim of right’ defence to cases to the taking or damaging of property which people may believe, mistakenly, that they personally own.

People might smash a door down to help someone in distress, or remove someone’s car to stop them driving home drunk. There are all sorts of occasions where the property affected might not be one’s own.

A ‘claim of right’ defence may be appropriate in such situations, even where some other defences may also be available.

19 thoughts on “Removing ‘claim of right’ dangerous

  1. The claim of right was one of the reasons that Blair gave to the Chilcot Inquiry for his ( and that of his Govt) support of the invasion and occupation of Iraq.

    Presumably, Key will use it too, in order to justify the continued presence of NZ troops in Afghanistan…

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  2. I think it’s quite dangerous to use one court decision to change a centuries-old law.

    So you think the Foreshore and Seabed legislation should revert to the pre Ngati Apa case, or is that law not old enough?

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  3. @dave 4:12 PM

    Dave, I don’t think it should revert to the pre-Ngati Apa case interpretation (which failed to give any recognition of custoamry property rights over the foreshore and seabed).

    I would be reasonably happy with it reverting to what the Ngati Apa case determined it was, which was to recognise customary property rights. Subsequent legislation has taken that away.

    And FFS, in the context of the latest ACT-inspired amendment, if the local marina can charge me for access to a marina, why shouldn’t a hapu who own foreshore or seabed be able to charge me for access to that too?

    The weird thing is that ACT are the Party that trumpets on most about “one law for all” but then promotes an amendment that totally abrogates that principle.

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  4. @Peter Martin 4:01 PM

    Not sure if such a defence exists re war crimes, but if it does, there has to be evidence to support the claim of right defence. So Blair would fail with Iraq, because there was none.

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  5. Keith – I agreee wholeheartedly – this is bad lawmaking, irrespective of whether you think that the “Waihopai Three” should have been hung or aquitted.

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  6. So someone can destroy a Green Party / Labour Party / National Party / Union office, as long as they have a “genuine belief” (it’s dosn’t have to be right – just genuine) that Green / Labour / National Party / Union is pushing issues or policies that are harming NZ.

    Or perhaps if I have a “genuine belief” that Waihopai is helping protect us from terrorists, I can attack those who damaged it as a “claim of right”.

    What a slippery slope holding peoples genuine beliefs (including sometimes deluded beliefs) more important than the law.

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  7. It also defends you from prosecution if you damage property to rescue someone.
    I.e. If you break into a house thinking there is a possibility of someone being unconscious inside. Even though they turn out to have been on holiday in Hawaii instead.
    Do you want to stop this sort of concern for your neigbour.

    There is usually a good reason for common law principles.

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  8. So someone can destroy a Green Party / Labour Party / National Party / Union office, as long as they have a “genuine belief” (it’s dosn’t have to be right – just genuine) that Green / Labour / National Party / Union is pushing issues or policies that are harming NZ.

    In essence, if a jury is convinced that a defendent has a genuine and well founded belief then the jury may accept it. However, I doubt it would work in the case you suggest; the proportionality is too extreme, and the target would be wrong.

    If you were doing a Guy Fawkes on such a belief, then that might be applicable. Or treasonous.

    It’s an example of a “greater good” defense. That defense should be present. Its been around a long time, and most law thats been round a long time is well tried and tested.

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  9. I would be reasonably happy with it reverting to what the Ngati Apa case determined it was, which was to recognise customary property rights. Subsequent legislation has taken that away.

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  10. @Kerry Thomas – that is not the part of the law they are looking to change. What you talk about is the specific intention of this law and will remain intact.

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  11. Photon said “if I have a “genuine belief” that Waihopai is helping protect us from terrorists”…
    You would have to show how you come to believe this.

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  12. You’d also have to show how attacking the ploughshares people would prevent Waihopai from carrying out this supposed function, given that nothing they did or tried to do would prevent the base from operating – they merely made its operation more visible to the public who pay for it.

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  13. and that your “attack [on] those who damaged it” was to prevent further disruptions to our safety and not just retribution.

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  14. fin – That’s the reduculous thing – I wouldn’t have to prove a thing.

    Just show that my belief is genuine.

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  15. First of all the law doesn’t mention a “genuine belief” about anything. It says “honest belief”. I can show Photonz doesn’t have an honest belief in a twinkling, just by showing postings to this site.

    Secondly it is a honest belief that the action is lawful. Even if you did honestly believe that attacking the ploughshares members was aiding the effort against terrorism, you can’t expect anyone, let alone a jury, to believe that you think assault is lawful. You’d have to invoke belief in some other law to justify your actions – war crimes or something. Some people believe a citizens arrest exists in NZ law (it doesn’t) so I suppose you could invoke this as a “honest belief” if you tried to apprehend someone, except:

    Thirdly, the law on Claim of Right only applies to a limited number of property offences (under the Crimes Act), not to assault.

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