The “claim of right” defence

July 15th, 2010 at 9:00 am by David Farrar

The Herald reports:

The Government will change the “claim of right” defence so it cannot be used as it was by three activists who escaped conviction despite wilfully damaging a communications base at . …

The New Zealand Law Society agreed the law needed to be changed.

“Everybody, including most lawyers, were surprised it was a successful defence in that case,” said Jonathan Krebs, the society’s convener of the criminal law subcommittee.

“It’s quite astounding that the defence could be successful when these vandals decided they were going to go and destroy this thing. That needs to be corrected.”

If the law was not changed, it would be a licence to vandalise.

But he said it should not be repealed because it was a legitimate defence in some cases, such as when buying stolen goods that the buyer thought was a legitimate sale.

I agree. The Government has put up five options. They are:

  1. Shifting the burden of proof
  2. Adding a reasonableness element
  3. Amending the offences that have ‘claim of right’ as an element
  4. Adding a property interest criterion
  5. Repealing the defence

A briefing paper is here.

A further paper in September will outline preferred options. Nos 1, 2 an 4 all looks pretty reasonable to me.

Tags: ,

36 Responses to “The “claim of right” defence”

  1. ummmm (61 comments) says:

    It seems reasonable to say the defence should not be available where criminal intent exists. As it is traditionally understood, the defence exists when mens rea is not present because of a mistaken belief that one has a property right.

    The classic example is when you take my coat from a coat check because it looks like yours. It is not theft because you believe (mistakenly) that you have a property right in my coat. No criminal intent.

    Nothing should change the operation of the defence where there is no criminal intent or there is a belief in a property right.

    Option 4 please.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  2. Lipo (229 comments) says:

    DPF “If the law was not changed, it would be a licence to vandalise”

    Bullshit. No such licence given at all. Still would need to go through a court case and prove your claim of right.

    Hopefully the court won’t select the David Bain jury again and the you would get convicted

    [DPF: The Ministry of Justice says that the Judge and jury applied the law correctly]

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  3. Graeme Edgeler (3,289 comments) says:

    1, 2 an 4 all looks pretty reasonable to me.

    4 seems pretty stupid to me.

    Cop comes across a car on a hot day. Notices dog inside. It’s in obvious distress, the windows are all closed, doors locked. He shouts around “whose car is this? Does anyone know who’s car this is?” No helpful answer. Radio’s in the rego. Then calls out “Peter Farrar, could you please come to your car.” Nothing. So he leaves. And the dog dies. It used to be that breaking into the car to help the dog would have been “in the greater good”, but because the cop didn’t own any of the car, he couldn’t do that any more, and nor could anyone else.

    In conclusion, one case does not make a case for a law change, but if ‘we must do something’ then option 2.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  4. alex Masterley (1,517 comments) says:

    Having read over the briefing paper, I don’t think that the “claim of right” should be repealed, rather a tweaking would be appropriate along the lines of options 1&2.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  5. hj (7,023 comments) says:

    It seems to me a matter of good judgement. Hardly anyone would disagree with the dog in the car situation but int the case of the three (allegedly) loopy activists in friars clothing somehow the jury was convinced that they were technically in the right because they “believed”. They hadn’t planned it as a stunt knowing the outcome and they didn’t have a lot in common with John Minto, Keith Locke and his cronies, no, they weely, weely, believed they were saving lives in Iraq. I think the prosecution wasn’t prepared for the subtleties.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  6. kowtow (8,487 comments) says:

    Common sense is what’s needed. Several cases involving ecowackos /anti Israel types have been successfully defended in the UK.I think activist judges and current fashionable causes play a part too.
    In the absence of common sense on the bench a law change is definitely needed.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  7. peterwn (3,273 comments) says:

    What I find really hilarious is that lefties complained about Young Nats (and not so Young Nats) ripping down unlawful and defamatory posters they had put up in the last election campaign. They argued thar ripping them down was unlawful and if there was a problem it should be reported to the authorities (as if they had gangs of workmen who could attend to them).

    There is another possibility (say 6) a ‘proximity’ element. Simply put the reason for the act would need to be reasonably proximate to the act itself (arguably it is ‘readsonableness’). So for example a party activist removing an unlawful and defamatory sign, or a person breaking a car window to rescue an overheated dog or child would continue to be OK, but damaging the Waihopai installation or attackng a B52 with hammers (as some misguided Kiwis did in USA several years ago) would not be OK. Incidentally in the latter case, the Kiwis did not end up in Club Fed, they got sent to a grotty county jail that had a contract to house federal prisoners.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  8. Chuck Bird (4,890 comments) says:

    I heard Professor Warren Brookbanks on NewstalkZB this morning. He said that the judge might have erred when giving instructions to the jury. He had not read his summation but just raised the possibility.

    Does anyone know if the crown appealed?

    I basically agree with Brookbanks that there are too many law changes for political gain.

    Safety Orders would be the latest example as was the original Domestic Violence Act. This was as a result of a tragic murder suicide. There had been previous case of both mothers and fathers killing their children and then committing suicide. If a mother had of done the same crime there would not have been a law change. Instead the MSM would be saying what drove her to do such a thing.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  9. s.russell (1,642 comments) says:

    It seems to me (I am not a lawyer) that this is simply a case of the jury being nuts.

    The interpretation of “claim of right”in this case seems absurd (notwithstanding your note above, DPF, saying the Ministry of Justice says that the Judge and jury applied the law correctly) .

    And that being the case no law change is going to solve the problem. A similarly inclined jury would simply defy the law whatever the law.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  10. Right of way is Way of Right (1,122 comments) says:

    I think I will apply my standard litmus test in issues such as this.

    John Minto and Keith Locke are against it, therefore it must be an excellent idea, and I wholeheartedly support it!

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  11. MikeNZ (3,234 comments) says:

    I would have more sympathy if the Waipo three actually owned the property they broke into, they did not and therefore committed burglary and should have been convicted on that alone!

    I’m of the opinion that without being able to show direct cause to the immediate danger to others, that they could only use it as a mitigating factor and not a defence and therefore should have been found guilty on all charges.
    I’m sad that the three didn’t get a custodial sentence but that’s what happens when common sense isn’t applied.
    A poor show and a blight on our justice system.

    The reality is they are anti american white guilty liberal christians who attack soft targets where they are safe.
    If they were sincere they would have been at the front against the Chinese visitors last month. not the greens.

    Sincere Anti abortionists have more of a case in bombing abortion clinics under this defence than they did.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  12. Murray (8,847 comments) says:

    The other issue which has been missed by the media is that if people believe they can attack defence areas with impunity then the option to employ the deadly force as warned by the honking big yellow signs becomes the best option for defending these areas.

    While I may have mixed feelings about stretching out a few hippies I’m sure we all regard it as preferable that security staff should not be blowing away trespassers as a matter of course. Although at Waihopi ANY effort by the security team to protect their area would have been a refreshing improvement on their current “stand and watch” policy.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  13. bhudson (4,740 comments) says:

    I think the claim of right needs amendment. It seems clear that the successful use of it in the Waihopai cases is not in line with Parliament’s intent.

    What concerns me however is that the Minister and Ministry seem to have limited the scope of the reform prior to actually undertaking the detailed review. It appears that the recommendation is limited to only 1 of the 5 options listed and excludes the possibility of combining more than one of them in the amendment.

    “Five potential reform options have been identified… the Ministry will undertake work to identify THE option that fits best…” [emphasis mine]

    It is possible that I misunderstand the latitude they may have to change the nature of the recommendation during the review, but on the face of it, the approval they sought (and got) from the Minister would seem to be to review and recommend one, and one only, of the stipulated options.

    Surely this is too limiting? Would it not have been better to have allowed a review of 5 ‘and/or’ options?

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  14. deanknight (263 comments) says:

    In relation to the burden of proof, the burden of proof to prove a claim of right does presently lie with defendants for summary offences (those lower level offences) due to section 67(8) of the Summary Proceedings Act. But that depends on the summary / indictable classification, which quite frankly makes my head hurt.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  15. Chuck Bird (4,890 comments) says:

    Does anyone know if this was a unanimous or majority verdict?

    Since the politicians are trying to score points with this legislation it would be nice if they would post the judges summing up online. Both lawyer summing up would also be very useful so would could have an informed opinion.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  16. Bryla (263 comments) says:

    DPF, I’m shocked. “Shifting” (reversing) the burden of proof “looks reasonable” to you. Amazing!

    I can’t believe that serious people like yourself would consider weakening one of the key safeguards of the citizens’ safety from executive power and the use of false allegations. The burden of proof lies with the crown.

    There is a lack of proportion here. Three peace activists were unanimously acquitted by a properly instructed jury. The sum of money we’re talking about here is in the order of $150,000.

    If you’re looking for culprits to blame, you could start with the GCSB – who chose not to give evidence at the trial (Defence Counsel Mike Knowles made great play of their absence in his closing address). While refusing to testify in Court, the GCSB used media leaks and unsworn statements to ramp up the supposed cost of the ploughshares action, and to excuse their own failures in security and public accountability.

    A private security guard who did give evidence testified that “atmospheric conditions” sometimes rendered the alarm system ineffective. In other words it doesn’t work in the rain.

    As a peace activist, I took a set of lessons from the Waihopai trial, and you can find them here: http://www.cairnspeacebypeace.org/?p=376#more-376

    Just this month the “EDO de-commissioners” have been acquitted of wilful damage to an arms trade business in Brighton, UK. http://decommissioners.co.uk/blog/

    The Anti-Bases Campaign has recently published an issue of “Peace Researcher” which contains among other things a copy of Mike Knowles closing address. I recommend you read the speech and think about how NZ can achieve political control over its own security forces – as the war in Afghanistan heads towards its 10th anniversary.

    It’s not on-line yet, but I reckon you could pick one up from Edwina at Peace Movement Aotearoa.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  17. wikiriwhis business (4,016 comments) says:

    The Waihopai spy base is exactly that , a spy base.

    Probably will be used against Kiwi’s as well.

    The jury believed that it helps kills civilians in the M E.

    There’s bound to be further attacks because of the connotaions of this spy base.

    The Americans use spy bases in Canada to surveill America so they can’t be accused of treason.

    We’re all pawns and soon we’ll all have to learn Chinese cause we can’t pay our loans back to them

    250m a week is going to add up real fast!

    Oh, that’s right, they already want to start teaching kids Mandarin.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  18. Rex Widerstrom (5,354 comments) says:

    Bryla says:

    I can’t believe that serious people like yourself would consider weakening one of the key safeguards of the citizens’ safety from executive power and the use of false allegations. The burden of proof lies with the crown.

    On that much, at least, I’m with Bryla. No way do we open the door to shifting the burden of proof onto the accused (though, as peterwn points out above, it effectively already occurs in some minor cases). That’s a slippery slope we definitely don’t want to start down.

    Option 2 holds some attraction, though it might be advisable to go with option 3 so as to make it clear to anyone contemplating undertaking such an action whether or not they’d have the defence available… but then again I’m not entirely sure whether the offences to which the defence can apply are presently enumerated? Or are we talking creating a list from scratch, which would seem unduly and unnecessarily complex. If that’s the case I’d vote for option 2, definitely.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  19. Bryla (263 comments) says:

    Hey Rex! Here’s the question put to the jury by Judge Harrop: “Am I sure that the accused DID NOT genuinely believe that his actions on 30 April 2008 were lawful”. If you answer YES to that question the accused is guilty. If you answer NO to that question the accused is not guilty.

    Notice that the jury is asked about “genuine belief”. I’m not sure “reasonable belief” would produce any different result. The jury heard all of the admissable evidence, and made their decision based on that evidence plus the Judge’s summing up and exposition of the law. The jury decides any matters of fact, including the state of the accused’s beliefs.

    I certainly wouldn’t want a lawyer, bureaucrat or politician in charge of that decision.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  20. Rex Widerstrom (5,354 comments) says:

    Bryla:

    I’m uneasy about even juries being able to connote motive and then use it to decide guilt or innocence. I think of instances like the Emery / Pihema case (in which Emery chased Pihema after the latter tagged his fence, fatally stabbing him when he caught him).

    Emery’s common law right to protect his property was extrapolated out by many to a “right” to run after the offender and take his life even when there was no further threat to your property and certainly no danger to yourself. Though Emery was found guilty he was sentenced to only four years and three months (less with parole).

    The starting point for sentencing in a case where one person stabs another is five to seven years imprisonment, but there were held to be mitigating factors in this case. They were described as including “Emery’s ‘family standing’ and that he supported himself in the community”.

    If you damage a spy base, you’ve damaged a spy base regardless of your motivation. If you stab and kill a teenager who poses you no threat you’re a murderer, regardless of motivation.

    While I’d never want to see motivation disregarded entirely I think it’s being given too great a weight in sentencing. When it can lead to a “not guilty” verdict which flies in the face of established fact (i.e. the damage was caused, and by the people charged) then it seems to me the pendulum has swung too far.

    Like Peter Bethune, if you commit a political act you must do so with a willingness to take on the consequences and the hope that your motives will mitigate your sentence, not that you will escape responsibility entirely. Otherwise you further open the door to travesties like Emery’s sentence and you devalue the symbolism of your protest.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  21. david@tokyo (263 comments) says:

    Adding the property criteria as in case 4 does not seem so silly to me. If that is the type of case in which the law was intended to be used for, then the law should be changed to reflect that.

    As for the case of the dog locked unattended in the car, sure helping the dog (or human infant too, if you like) should also not be a crime, but there should be some other defense available for cases such as this, IMO (is there not already?). If you say it’s OK to damage someone’s property to help an animal, then suddenly you have opened up the vandalism route for all the animal rightists / eco-terrorists out there (or I am wrong?). I guess New Zealand does not want to go this route.

    But then there are cases such as Bethune’s vandalising Japanese vessels supporting it’s scientific whaling fleet, which perhaps a majority of New Zealanders might think ought be permitted (although I would hope I am wrong in this case). This is slightly distinct from Bethune’s PR stunt in getting himself arrested and taken to Japan.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  22. Chuck Bird (4,890 comments) says:

    Rex, I heard the case reported a little differently. Emery was around 50, overweight and not very fit. I would think they could have outrun him if they choose to. Emery claims they turned on him and sprayed him in the eyes. If that was the case I think that is a lot different than if he caught up to one and stabbed him. If it was two against one and one used a weapon (spray can) that is a lot different.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  23. Rex Widerstrom (5,354 comments) says:

    Chuck Bird:

    No idea if Pihema sprayed Emery with a can. However the chase distance was 360 metres, into a dead-end street.

    I’m almost 50, overweight and not very fit. I’d have run out of puff after about 100 metres, and instinct would have told me not to corner one (or two) teenagers in a dead end street.

    Unless I was a cowardly bully in a murderous rage, intent on extracting revenge, and carrying a big knife I’d grabbed on my way out the door, maybe.

    Emery’s imminent release was described as a “disgrace” by one of his closest neighbours.

    The man, who has known Emery for 16 years, described him as a “bully”, who would only confront youths near his property as long as they weren’t in the presence of other adults.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  24. Maggie (672 comments) says:

    Firstly we have no idea why the jury acquitted in the Waihopai case. The main influence could have been the evidence itself or the judge’s summing up, only the jury will know.

    Changing the law because you don’t like the result of one case is a knee jerk reaction.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  25. Robert Mapplethorpe (119 comments) says:

    Here we go. AGAIN. Rarely used defence used succesfully. Government doesn’t get result it wants. Government gets shitty and changes law.

    Just as the defence of provocation was rarely succesful, so is tgheir little success with defence of right. So why the need for law change?

    Maybe Simon Power could go all the way and abolish Not Guilty pleas.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  26. big bruv (13,904 comments) says:

    “Maybe Simon Power could go all the way and abolish Not Guilty pleas.”

    Be still my beating heart.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  27. Political Busker (231 comments) says:

    http://www.stuff.co.nz/dominion-post/local/3924100/Mall-protester-fails-in-bid-to-get-trial-by-jury

    The media diet in New Zealand is highly prescriptive and what Mr Power wants is what the mainstream media will thereabouts try to give. The report linked does not tell the reader that the claim of right will be used in the case. The judge has considered that an on site view is reasonable, even though a half day has been set aside to test the evidence, in case it would re-litigate the Environment Court decision on the same matter. The defence though, steps in closer to legitimate reasons for the claim of right and certainly that the victims (as not yet foreseen) are not in Iraq but will be in Wellington. This is to be exercised under s330 of the Resource Management Act 1991.

    http://www.legislation.co.nz/act/public/1991/0069/latest/DLM239003.html?search=ad_act_resource_____aa_acur_r&p=1

    Under s18, the prosecutor must prove that the action (my emergency works with a sledgehammer, megaphone and paint), was not in accordance with 330. The burden of proof is to uphold the viability of the Manners Mall Opus/WCC proposal. This is an impossible feat because the evidence that the Environment Court shut up unquestionably proves the physical constraints of the area are far, far greater than the proposal.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  28. Political Busker (231 comments) says:

    @bhudson – Yes. For example the review done on Manners Mall put the approval for the proposal first and then the consulting engineer stressed when commissioned to comment on the topic matter, that more tests were necessary. Now (and prior to this test being done or opened to public view) we privately prove the software used for the initial decision was clearly unreliable and admittedly had incorrect data entered. As you suggest the remedy now was practical then and unless I went onto the mall to guarantee (through risk in liberty) the facts would be tested the faults would have been expensively determined out of time and after the damage had been done.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  29. Political Busker (231 comments) says:

    I don’t think David Farrah put up the Vince Siemer matter this time around – but while I’m writing about inconsistencies in law…

    http://www.facebook.com/?ref=home#!/group.php?gid=130619460308073&ref=ts

    try this ‘a touch of God from the Supreme Court Hammer equation’ … is Vince convicted or not convicted or is he not convicted but convicted and if either, both or neither of the former what was the law broken for which he was committed?

    http://www.legislation.co.nz/act/public/2002/0009/latest/DLM135571.html?search=ts_act_sentencing_resel&p=1

    23 No sentence may be cumulative on indeterminate sentence of imprisonment

    No sentence of any kind may be imposed cumulatively on an indeterminate sentence of imprisonment.

    http://www.legislation.co.nz/act/public/1990/0109/latest/DLM225528.html?search=ts_act_bill+of+rights_resel&p=1

    26 Retroactive penalties and double jeopardy

    (1) No one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred.

    (2) No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  30. nickb (3,687 comments) says:

    Are you still sponging of the rest of us PB?

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  31. Political Busker (231 comments) says:

    I’ll swap you sense for cents, any day dude.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  32. nickb (3,687 comments) says:

    I’ll take that as a yes.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  33. Political Busker (231 comments) says:

    Still a bit for me to do nickb, so don’t hold your breath because your lips would be very cold and dark by the time I have got my donated website running efficiently to show you what I mean because of what I Have been doing. The think I need to show you is what others in your side of an argument need to comprehend is that you want to stop thinking whenever it is convenient rather than taking reason to its fuller meaning and exploring the information before you. At present you and those with you can survive but your survival is very limited where now for the actions of Vince Siemer – Penny Bright, me and many others the injustice will be forced to slow down. This is because idolatry (cents) thinking kills other people. Think about the posts above your comment before thinking about what I have just said but with the same energy for reply and you just may get what I said. http://politicalbusker.co.nz

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  34. nickb (3,687 comments) says:

    Brandished any sledgehammers at police lately?

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  35. Political Busker (231 comments) says:

    No – and never did anyway. The judge took my submissions over the break and recalled me saying to the Police that they would have a hard time proving I had an offensive weapon when all I did was hit the road. this is an interesting point for the link. Then I could have a jury as it was considered a serious crime under the Crimes Act 1961. Now there are lesser charges with the maximum penalty of 3 months. So the comment above by deanknight needs me to research the burden of proof. Either way there is little room for the Police to succeed where the information I test is already admitted for the evidence. The single question and the one being pushed hard by all counsel is whether or not anyone has to listen to the evidence. This is why I went on the road. No one wants to know how bad what is bad, being protected in New Zealand, really is. The bureaucracy wants to pretend nothing is wrong because we have been going so long without any real test against the self regulatory body of law.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  36. Political Busker (231 comments) says:

    Come on nickb – you’ve got a thousand and nearly a third odd comments hanging off your belt.

    Ok then I concede the arbitrary system may not be superior – I suppose it’s an even contest and I accept the draw.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote