Locke Keith: Crimes Amendment Bill (No 2) — First Reading 
Locke Keith: Crimes Amendment Bill (No 2) — First Reading 
[Volume:672;Page:18527] 
KEITH LOCKE (Green) 
: 
 The Crimes Amendment Bill (No 2) has a number of different elements to it. Some parts of the bill the Green Party supports and some parts we are particularly worried about. On balance we have decided to oppose this bill at the first reading although we are hopeful that when it goes to the select committee a number of changes will be made and we will be able to support it at subsequent stages. 
One part of the bill that is not “at the top of the bill” and that might have been lost a bit in the commentary but that we think is very important is the section that gravely limits what is traditionally called “the claim of right” or what is sometimes called “the colour of right”. We are worried that there has been something of a knee-jerk reaction to the decision in a case often known as the “Waihopai Three” case in which three men charged with criminal damage at the Waihopai spy station were found not guilty. They used the claim of right as a key part of their defence. It is unfortunate when changes in law are made mainly in response to the result of one court case particularly when we are looking as we are here at a common law provision that has existed in many countries still exists in many countries and has a very important tradition in common law. 
I will just go back to the original text of the claim of right in section 2 of the Crimes Act in relation to this amending bill: “claim of right in relation to any act means 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”. The concept is fairly broad and even though a person cannot misinterpret the actual offence for which he or she is charged if the person puts the offence in a broader context or makes some mistake in relation to that broader context or if some other factor comes in then perhaps he or she can be found to be not guilty. 
The change suggested in this bill is to restrict the use of the claim of right to cases where the person charged has some proprietary or possessory right in property—that is under clause 4(2) the amendment takes out the belief that the act is lawful and substitutes the provision: “ ‘at the time of the act of a proprietary or possessory right in property being property in relation to which the offence is alleged to have been committed’.” Just to put it in its simplest terms that definition could apply—and correctly apply—to a case in which somebody picks up a bag as some of us have done at times and runs off with the bag thinking it is his or her bag. Later on that person realises that it is someone else’s bag but that his or her bag looks identical to it. In that case technically that person is guilty of theft because he or she has run away with somebody else’s bag but in a court setting the court would say that no the person had an honest belief that it was his or her bag. Restricting the claim of right in that way therefore has some application but it is a very limited application. 
The provision would not apply even to something that is fairly similar in a property sense to a situation in which for example people hear a scream and think someone is in distress. They are sitting in their own home and hear a scream. They think it is coming from next door and that someone is being attacked. They go next door and bash down the door because they think it is rather urgent. Then they realise that the scream has really come from the next house over and that the scream might even be something else—it might be someone screaming at the All Blacks on television or something. They have a genuine belief that they are trying to help someone in distress yet their next-door neighbour whose door they have just bashed down says he or she will take them to court because it is wilful damage etc. They might try to use the claim of right which people traditionally would have used but in this case because they have no proprietary relationship to the property next door they cannot use that claim of right. 
The Waihopai case was broader than that as have been so many other cases. The three people who were charged with criminal damage said that yes they had conducted an action that caused some damage to the dome surrounding the dish at Waihopai. They did not deny that but they said that the context or the claim of right took into account broader international laws against committing murder and wars—like conducting an illegal war in the case of Iraq which they referred to a lot in the court case—and the rights that New Zealanders uphold under the Rome Statute which governs the International Criminal Court etc. The three people said they were obeying a lot of international law and that that outweighed other issues and provided a context for them to commit criminal damage to the dome at Waihopai.  
When the claim of right is being discussed in legal circles it is not just accepted as an honest belief and it is not just a moral entitlement; there also has to be a legal entitlement which is why the three people had to provide evidence of the other laws in their court case and why they had to present evidence that the spy station at Waihopai had some relationship to the breaking of those laws. If one reads the court transcript one sees that the three refer particularly to the evidence of a Government communications security headquarters whistle-blower in Britain who came out with a memo from a chap called Frank Koza of the National Security Agency—which Waihopai is linked up to and does its spying for—who said just prior to the invasion of Iraq that the National Security Agency and its offshoots would conduct a whole set of interceptions. He specified that the interceptions would be of dissident members of the United Nations Security Council in order to try to get a majority for the American invasion of Iraq. They failed to get that UN majority but in the process spied illegally on United Nations delegations in their communications back to their homes. There are a whole lot of things there. 
One of the problems with this issue is that in this particular case Government policies were being challenged and Governments can react by saying they do not want their Government policies being attacked so they will change the law. That is what is happening in this case. Rather than the Government admitting that perhaps the court jury and judge got it right in the Waihopai case it is just throwing out the colour of right even though it has a long tradition. I think that that is a very unfortunate thing.  
With regard to the other part of the Crimes Amendment Bill (No 2) the Greens support the intention of the bill to put more moral sanction on assaults on children. That is very good but as we and our co-leader Metiria Turei have said in the past we are concerned that lengthening the sentences that apply particularly to family members in a place where children might be abused might provide a certain disincentive for reporting crimes. Family members will not want to get another family member into trouble if he or she will be given a 10-year sentence. Some of the people in that household might be abused but be very scared of coming forward to the police. There are all of those sorts of problems and it would be much better to somehow bring in techniques and support for families and extended families in order to bring them on side so that they can constrain and prevent violence in the home.  
The Green Party is a bit critical of some of these provisions. Our criticisms parallel those of the New Zealand Nurses Organisation and others.