Locke Keith: Crimes Amendment Bill (No 2) — In Committee 
Locke Keith: Crimes Amendment Bill (No 2) — In Committee 
[Volume:675;Page:21328] 
KEITH LOCKE (Green) 
: 
 On behalf of the Green Party I want to address clause 4 and its amendment to the claim of right which is one that seriously concerns us. It seems that the amendment to the Crimes Act is motivated by the Crown losing a particular case sometimes known as the “Waihopai Three” case where the defendants used claim of right—sometimes called colour of right—as a defence. 
Presently in the Crimes Act claim of right is defined “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 change in the bill before us is to make the wording a belief that “at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed”. 
I think it applies in its very restricted form to for example someone who picks up a bag off the conveyor belt at the airport chucks it in the back of the car drives off then all of sudden finds blue flashing lights behind them because somebody saw them steal a bag off the conveyor belt. The person says: “Look I must have picked up the wrong bag. It looks very much like mine.” Of course they would not get away with that if the bag had been stolen from say a rich-looking tourist and was of a completely different type to their bag but if they had a reasonable belief that it was their bag they would get off the charge. 
So there is an element of reasonableness in this amended law even though the word “reasonableness” does not appear. If we look at the law that it is narrowing we see it is also there implicitly even if not explicitly. Sometimes colour of right or claim of right laws around the world do have explicit reference to reasonableness in terms of the mistake or belief. But in this case in both the amended law and the original law there is not that reference to reasonableness but implicitly it is there. This is true internationally. 
Another example which now unfortunately is not covered by claim of right is somebody who hears someone in the house next door yelling and screaming and it appears that someone is being attacked. The neighbour breaks down the door and rushes in only to find that the noise is coming from a television set. The owner of the house gets very upset and takes the neighbour to court for breaking down the door criminal damage etc. The neighbour may be able to get off if it is thought that they honestly believed that a person inside the house was in real danger and they made a genuine mistake. 
The “Waihopai Three” case was in some ways an extension of that principle in that in respect of the two cases I have mentioned in the first case the person technically might have thieved the bag from the conveyer belt and in the second case of breaking down the neighbour’s door the person technically might have committed damage to the door. In the Waihopai case the defendants did not deny that they had technically damaged the covering of the satellite dish. The question is whether there was some reason a genuine belief that overrode that technical breach of the law. In the case of the “Waihopai Three” they argued that they did it to abide by a larger purpose a larger law—that is to stop the continuing killing of people by the American Government in the illegal war in Iraq. The jury in that case presumably accepted that argument. 
Some of those questions have been challenged in a recent decision by Justice Gendall in the High Court and this has been covered a bit in the media. Justice Gendall went back to that case and assessed whether in fact there was reasonableness in what the “Waihopai Three” did. He brought out some very interesting points. He said that the defendants had not “identified imminent peril or danger to an identifiable person or persons”. 
The defendants in the earlier case had argued that they were not specifying people. There was an ongoing war an illegal war where hundreds of thousands of people had been indirectly or directly killed and the whole question of the legality of that war related to the legality of what the defendants were doing in damaging the dome at Waihopai. 
The other element that Justice Gendall brought up was “the legality of a decision by the executive arm of government to go to war is beyond the capacity of the courts”. That is we cannot judge something if it is related to something happening in another country and being done by another Government which I do not think was the way that the District Court jury had decided it in the “Waihopai Three” case. But that raises a whole interesting question of the relationship of New Zealand law to international law. Another point Justice Gendall raised was that although clearly it was an act of protest he said that to qualify it had to be an act of rescue—of rescuing particular people. 
So there is a whole controversial area there of whether the courts can accept that protests might have a good effect in terms of upholding international law and protecting lives in another country. It could be argued if we look at the Arab Spring that some of the mass protests there have ended dictatorships that were killing people imprisoning people torturing people. Although the protests might not have been a direct act of rescue in Justice Gendall’s term they were acts of protests that were helping to uphold the law and protect lives. 
So there are a whole lot of controversial issues here which is why I think of what Rajen Prasad said in terms of some of the submissions before the Social Services Committee. We should not really be rushing to change the Crimes Act provision for claim of right on the basis of just one case when these issues are very much alive in debate. We should take our time. It is not as if there has been a whole pile of cases beyond property-related cases using the claim of right. We do not need to rush to change it so the Green Party is very strongly against changing the law on that basis. 
I think of the whole question of the relationship of domestic law to international law and the extent to which not only Governments can help uphold international law particularly law relating to aggression the killing of people genocide and all of these things. It is not just Governments that have a role in upholding that international law; communities protestors and all kinds of people can engage in a similar exercise. 
In fact we have been celebrating the 30th anniversary of the anti - Springbok Tour demonstrations where clearly by all accounts including Nelson Mandela’s the protest action then some of which did technically breach laws did help end the suffering of black people in particular in South Africa. In one sense many of the defendants in those anti - Springbok Tour cases 30 years ago used a kind of claim of right defence even if they did not actually spell it out that way and were given light sentences or no sentences or community service or whatever for sitting on planes on motorways and God knows what. I think some people actually invaded Auckland Airport or Wellington Airport and sat on a plane. Today they would be carted off for a major terrorism offence but they were given community service because their motive was helping people overseas. Thank you.