Legal aspects of the ‘Waihopai Three’ decision

The decision has generated much debate, and this comment seeks to explain the legal basis of the decision, and the implications for the future.

The facts and background of the case will be familiar to readers. The three defendant peace campaigners were acquitted on March 17 by a Wellington District Court jury of charges of intentional damage and burglary in relation to the Waihopai communications base.
The decision has generated much debate, and this comment seeks to explain the legal basis of the decision, and the implications for the future.
The three had introduced emotive evidence about the human rights abuses taking place overseas which they argued were aided by the information gained at Waihopai. The base is part of the Echelon network used by the United States military.
The orthodox view of criminal liability provides that an apparently good or laudable motive does not excuse a defendant from criminal liability. What is relevant is that the prosecution proves the elements of the offence beyond reasonable doubt. Motive may be taken into account at the sentencing stage.
Rather, the basis of the acquittal appears to be the jury’s acceptance that the three defendants were acting under a ‘claim of right’. Section 2 of the Crimes Act 1961 defines a claim of right as ‘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’.
In relation to both the charges of intentional damage and burglary (which involves entering a premises with the intent to commit a crime), it was generally accepted that the three had been responsible for the actus reus or physical aspect of the crime, and that they had acted intentionally (the mens rea or mental element of the offence).
Thus, in order to acquit, the jury must have been satisfied that at the relevant time, the three honestly believed that they were acting lawfully.  It was therefore decided on a narrow point of the three’s belief in lawfulness, rather than the morality of what they did.
The successful use of this defence is very rare in New Zealand, but similar defences have been used in a number of cases overseas, particularly in the United Kingdom in relation to climate change protests.

Implications for the future
Despite headlines such as ‘Waihopai 3, sense 0’ ( Southland Times 20/3/2010 ), a sense of proportion needs to be maintained. First, District Court jury trial decisions are of limited precedential value, and so the floodgates are unlikely to be opened to similar cases. Nonetheless, the Minister for Justice, Simon Power, has announced a review of the claim of right defence ( Government Press Release, April 12, 2010). Mr Power acknowledges the ‘Long common-law history [of the defence] which is connected to traditional arguments that people should intend for their actions to be illegal before the state will impose a criminal sanction’.
The minister believes that the current scope of the defence raises questions including whether there should be a ‘reasonableness’ element. This is another example of the government’s reactive policy to high-profile cases, for example the abolishment of the ancient partial defence of provocation in the aftermath of the Clayton Weatherston murder trial.
Second, the commonsense of juries must not be underestimated. Juries will be naturally sceptical of such a claim, and it will rarely succeed.
As barrister Charl Hirschfeld wrote in the NZ Lawyer magazine recently (30/4/2010), the verdict ‘needs to be seen for what it was: one which was open to the jury, one which is rare, but which has some provenance…but also one which should not necessarily cause the law to be changed’.
Dr Nessa Lynch is a law lecturer at Victoria University of Wellington