The “claim of right” defence

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 Waihopai. …

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But he said it should not be repealed because it was a legitimate defence in some cases, such as when buying stolen goods that the buyer thought was a legitimate sale.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

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