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Source: ONE News -
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The government will either reform or repeal the "claim of right" defence successfully used by the defendants in the Waihopai sabotage case, Justice Minister Simon Power said today.
In March, three men, Peter Murnane, Sam Land and Adrian Leason, were acquitted after admitting they attacked the base near Blenheim, causing a million dollars worth of damage.
They claimed their actions were lawful because they were protecting Iraqi citizens by disrupting the foreign intelligence being relayed through the spy base. They argued that they were driven by a belief that the station caused human suffering.
The claim of right defence is usually used in cases where someone has taken or destroyed property they thought belonged to them.
The government says parliament never intended for it to be used in circumstances like the Waihopai case and in the future it won't be.
Power has a preliminary report which looks at five options including removing the claim of right defence.
Power said his preliminary advice is that the courts have extended the "claim of right" defence beyond what was anticipated by parliament when it was defined in the Crimes Act 1961, and amended in 2003.
"The 'claim of right' defence has a long history in common law and was used in New Zealand well before it was formally recognised in the Crimes Act," he said.
"It's clear it was not intended to be used to excuse the behaviour of people who take or damage property in cases where they are not claiming a personal property right."
He said concern has been raised that the legislative scope of "claim of right" has become "too broad and that the defence should not be able to be used as it was in the Waihopai case, and I agree with that".
Power said it appeared the law was out of step with comparable overseas jurisdictions including England, Canada and several Australian states.
"I have asked officials to look at finding the best option to bring the defence back to what parliament intended, to clarify its scope, to address issues specifically raised by the Waihopai case, and to bring it more into line with overseas jurisdictions," he said.
However Green MP Keith Locke said there is another reason behind the move.
"Behind it all they are afraid of the public knowing more about what's happening at Waihopai," he said.
Officials are now reviewing the options in the report and will be talking to the Minister again by the end of September.
The options are:
Shifting the burden of proof
Amending the definition of "claim of right" so a defendant would
have to prove they have a "claim of right", rather that the
prosecution needing to prove they do not.
Adding a reasonableness element
Amending the definition of "claim of right" so a defendant would
have to show that at the time of the offence their actions and/or
beliefs were reasonable.
Amending the offences that have "claim of right" as an
element
Amending some or all of the 14 offences in the Crimes Act
that have "claim of right" as an element to ensure the defence is
not wider than appropriate.
Adding a property interest criterion
Amending the defence of "claim of right" so only a defendant with a
legal claim to the property concerned could use the defence.
Repealing the defence
Remove the "claim of right" defence from the Crimes Act so the
defence is not available to any defendant in future.
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