The Quest to Punish the Waihopai Three

The legal battle now shifts to civil court

by Gordon Campbell

Earlier this year, the acquittals won by the Waihopai Three polarized opinion across the country. The exoneration of Dominican priest Peter Murnane, teacher Adrian Leason and farmer Sam Land on charges of burglary and intentional damage at the Blenheim spy base may have delighted friends, relatives and supporters, but the jury’s verdict caused consternation on talkback radio – who felt the defendants had got away with murder – and within government. Subsequently, the Crown has announced its intention to change the law so that the ancient legal defence of ‘ claim of right ‘ cannot be used again in similar cases, and will be restricted to incidents involving property in which the defendants have a direct ownership stake. In addition, the government has announced its intention to launch civil proceedings to sue the trio, to recover all or some of the $1 million estimated cost of the damage.

Beyond revenge, the purpose of the civil action can’t be to reclaim the money – the defendants simply don’t have that sort of cash – but to set a precedent. One that will tell any similar protestors that they can expect bankruptcy in civil proceedings at least, even if they’re lucky enough to strike a sympathetic jury in criminal court. At time of writing, the first steps in the civil proceedings against the Waihopai Three were about to begin.

Later in this article, I’ll try to explore the likely course of the civil claim for damages. Given the government’s determination to change the law surrounding ‘claim of right’ it seems advisable to begin with the reasons why those original ‘not guilty’ verdicts on criminal charges were returned. So far, the most comprehensive review of the Waihopai case has been the “Claim of Right’ article in the August 2010 edition of the New Zealand Law Journal (unfortunately, not online) written by professor Warren Brookbanks of Auckland University’s law faculty.

Brookbanks (pictured left) sees nothing wrong with ‘the claim of right’ defence and no need to change the law. Nor does he believe the acquittals were due to an overly sympathetic jury. In his view, the presiding judge mis-directed the jury about the true nature of the claim of right defence. In particular, Judge Harrop told the jury that if the defendants held an honest belief that there were reasons in law why their actions – while known full well to be criminal under normal conditions – were not criminal in these circumstances, then that was all it took to uphold a valid claim of right. That, Brookbank argued at length, was not a correct interpretation.

So, to go back to first base – what are the ingredients of a valid claim of right? Essentially, it entails an honest mistake about legal entitlement, and is almost invariably about property. Someone thinks the umbrella in the hotel coat stand is a freebie, and takes it. Someone thinks the haystacks left behind on the land they have leased are theirs to do with as they choose, so they set fire to them. Someone thinks that since they own the land, they have the right to shoot a stray horse they find on it.

In all such cases, there is an honest belief that negates the criminal responsibility for the actions. As Brookbanks sought to prove, it is not the same thing at all as an honest belief in a noble cause or an honest belief in moral entitlement. Nor is ‘claim of right’ meant to be confused with the separate defence of necessity, or the defence of another – where the actions can be legally justified on the grounds of there being an immediate and imminent peril to someone else.

In Brookbanks’ opinion, the Waihopai Three (left) defence was – at best – a claim of necessity masquerading as a claim of right. In the article below, I first interviewed Brookbanks at length about his views on claim of right and its use in the Waihopai case – and then briefly interviewed his law faculty colleague (and torts specialist) professor Bill Hodge about the situation the the Waihopai Three will face when it comes to the civil claim for compensation.

Campbell : So – to retrace – what do you think are the ingredients of a valid claim of right?

Brookbanks : A claim of right is an element in the definition of certain crimes. They’re mainly property offences like wilful damage, but also theft and theft related crimes. In order to prove the elements of a particular crime like theft, the Crown has to prove that the person acted dishonestly, and the way that has been expressed in legislation has been to say they acted fraudulently ‘and without a claim of right.’ So ‘claim of right’ strictly speaking is part of the definition of certain offences but we talk of it in a very general sense as a defence – because if you can establish that you had a claim of right, that may negate acting dishonestly in relation to certain crimes.

Is a “claim of right’ about your motivation – or does it have more to do with your sense of legal entitlement?

Its probably both. That’s where it becomes complex because – generally speaking – the fact that a person has a good motive is not a defence to a crime. So the fact a person acts in good faith because they really, passionately believed something may go to the question of the penalty that may be imposed if they are convicted, but – generally – it doesn’t have any bearing on their criminal culpability. How ‘claim of right’ came into the law is difficult to know. Its been around for a long, long time. But essentially what it is saying is that who-ever does an act with true honesty of purpose then that true honesty of purpose may negate their criminal responsibility.

Is it purely arbitrary that the claim of right defence pertains only to property crimes?

Pretty much. As the courts have said, claim of right is only available as a defence in respect of those offences where it occurs as part of the statutory definition in the legislation. Now, there are other defences at the criminal law which allow mistakes to negate criminal responsibility. The way to understand this is to start from first principles. There is a principle at law which says that an honest belief in the assertion of facts which if true would make the act innocent, is a good defence to a criminal charge…

So this is one of the few situations where ignorance of the law is a valid defence?

Exactly. Claim of right is actually a species of ignorance of law. But it is a very particular species…Ignorance of the criminal law is not generally a defence. The Crimes Act says that at section 26. So when you come to claim of right, what you are asserting is a belief in legal entitlement – not moral entitlement..

But what if someone does something in the mistaken belief that their actions constitute a lesser evil? Could that qualify as a claim of right?

No, it couldn’t. Because doing something as a lesser evil is still a belief in a moral entitlement. And the law has been very clear for a long time that a belief in moral entitlement does not qualify as a claim of right.

I’m trying to see what the reason is in principle – apart from sheer convenience – for making that distinction?

The principle is simply this. The law has to preserve the rule of law, and the principle of legality. The heart of the principle of legality is holding people to a standard of knowledge of the criminal law. Everybody is expected to know what the criminal law is. That’s why we have the principle of ‘ignorance of the law is no excuse.’ But when it comes to the overlap of the criminal law and civil obligations, then it becomes much more complex. The law does not hold people to the same standard of performance in relation to their knowledge of the civil law…So, the way that claim of right operates is that if somebody in good faith makes a mistake about their obligations under civil law which leads them then to commit a crime, that honest mistake will negate the intention to act dishonestly.

Right. And your argument in the Law Journal is that a sense of duty or moral entitlement doesn’t amount to a valid claim of right – because then we’d be giving people license to pick and choose what laws they recognise. And your belief is that a sense of moral propriety for one’s actions can’t confer impunity…especially for people who know that their actions would, in normal circumstances, be illegal.

Yes, When they know what they’re doing is wrong.

Only in normal circumstances. And to make things completely clear …how do you think a claim of right differs from a claim of necessity, or defence of another?

Well, they’re different paradigms. The defence of another pre-supposes a situation of active and imminent peril where a person must act to save their life, or to save the life of another person or where someone must forfeit their life if they don’t take that action…So, its depending on a particular belief or knowledge of the law, its depending on a person’s ability to act prudently and swiftly to preserve them. The law has always had a principle of necessity in relation to situations of grave peril.

Like when say, a child is going to be hit by a truck and I have to jaywalk to get there in time to save them.

Yes, you have to get the child safely out. You may know jaywalking’s a crime, but the emergent peril is so great, it’s a choice of evils. I will break the law for the purpose of achieving the greater good.

So in your opinion, the lesser evil/greater good argument belongs to an argument based on necessity.

Yes, in the area of necessity but not claim of right.

And my understanding is that you feel in the Waihopai case, the defence was really advancing a claim of necessity and defence of another, and masquerading as a claim of right.

Exactly. And the court had addressed that issue. And said there isn’t a question of necessity here.

Now, before getting to the heart of the Waihopai defence, one last thing…My understanding is that the defendants ability to mount a defence of necessity was obstructed by the prior ruling in Hutchinson [a case that involved a Nelson environmental activist convicted for destroying 1080 pellets ] that in effect, requires you to attack the person representing the immediate threat, and not the property.

Um, well yeah. They may have been justified in Hutchinson if there had been some clear evidence for causation between the use of the 1080 pellets and the immediate peril to human health. The problem with that case as I recall it was that the court denied the defence of necessity because there was no clear evidence of causation. They couldn’t establish that by destroying the pellets, they were actually saving thousands of people from contaminated water that would have otherwise killed them. It was simply too remote….and the court was therefore not able to find that the requirements for necessity to preserve life, were met.

So in his instruction to the jury in the Waihopai case, what in your opinion, did the judge get wrong?

Well, I think the problem was the judge seemed to be allowing a more permissive view of the defence of claim of right than the law itself previously allowed.

In what particulars?

I think the court said at one point if they had an honest belief that their act was lawful. that would have sustained a claim of right. Well, that’s simply not right. Because an honest belief that what you’re doing is lawful [isn’t enough]. If there’s an honest mistake about the content of the criminal law then your honest belief the act is lawful contradicts the rule of law [and] the principle of legality.

If the judge’s direction was as wrong as you claim it is, why didn’t the Crown appeal the verdict?

That’s a very good question. I don’t know. I would have thought that the simple way – and it would have resolved all the need for this matter to go to Parliament for a law change – was for the matter to have been appealed, and for the Court of Appeal to have simply corrected the judge’s direction. And they could have done that. That would have clarified the situation, and it wouldn’t have been necessary to go to Parliament to change the substance of the definition. Which is what they are now proposing to do.

Lets look in detail at the moral – and arguably, legal – dilemma that the Waihopai defendants felt themselves in. We had Lord Bingham, said to be the greatest jurist of this generation, saying that no valid UN mandate existed for the invasion of Iraq. In addition, New Zealand signed the Geneva Convention, the Convention Against Torture and the Covenant on Civil and Political Rights, and embedded those last two in the Immigration Act. Surely, any citizen would reasonably conclude they must comply with these laws and commitments as expressing the law of the land and the express will of Parliament. So when the government apparently colludes to violate those commitments – couldn’t the Waihopai defendants feel not only a right to act under the law, but a compulsion to do so, ASAP?

Except that we are dealing with an issue in the realm of international law, and international legal policy.

No, we’re not. They are now part of our domestic law as well.

Well yes, its law. But the problem is they certainly had in mind a purpose that was very noble, and in terms of the way that the law in relation to New Zealand’s obligations overseas has been crafted. It is understandable. The criminal law in New Zealand is territorial. The criminal law in New Zealand is designed to regulate the conduct of citizens in relation to acts committed within New Zealand. The problem that the Waihopai defendants had for purposes of achieving a much nobler global purpose – namely, to save the innocent victims of Iraq from wanton attacks by coalition forces, they thought they could use the vehicle of breaking New Zealand’s criminal law to achieve that purpose.

But I’m suggesting something different. One, the acts in question are being committed by the state on New Zealand soil as an act of complicity in a chain of events which culminate in criminal acts overseas, but originate here. Secondly…yes, there is a criminal law against burglary and intentional damage, but there is also .a requirement that citizens, post Nuremberg, must ensure that the state lives up to domestic law and to the treaties it has signed. What is a good citizen to do in that situation ?

Well, I think it is a question of how the good citizen approaches a cause. My argument is simply that breaching the domestic criminal law is not the best way to achieve that purpose.

And they would argue in response that millions had marched, eminent jurists had condemned the illegality of the invasion and no other avenues were open – given that even the United Nations couldn’t get the offending parties to comply. Put it another way. I wonder if this isn’t the flipside of your concerns about legality – certainly, we can’t give citizens carte blanche as to which laws they respect and which laws they violate. But by the same token – surely citizens can’t be compelled to ignore their own government’s complicity in the violation of its laws, and its own explicit international commitments?

That’s probably true. But if that is the case, it’s an argument to say that the law around how citizens meet those obligations is itself deficient. And that deficiency can’t be met by simply expanding the scope of existing territorial criminal law. A different principle needs to be enacted here. That was the problem when they were advancing the ‘greater good’ [argument]. It would have been fine, if our law had ever recognised a ‘greater good’ defence that would have given global authority to over-ride the specifics of the Crimes Act. We’ve never had a broader ‘greater good’ defence.

Perhaps…But I’m interested in whether this situation almost fits within the ambit of a claim of right, in situations where people honestly believe an irreconcilable conflict exists between two sets of laws. This is not a moral entitlement kind of argument. It is a situation where there is honestly felt to be legal conflict between a law that says don’t commit burglary and another law that compels compliance with certain laws and treaties… Given that morally and legally confusing nexus, one could argue that a claim of right – or something very like it– existed.

The problem here is…the law has very pragmatic purposes. The criminal law is designed to prevent and warn people against committing acts that damage the interests of other people, deliberately, to person or to property. When you get into these meta-areas of global conflict we move in a sense beyond the comfort zone of what local domestic, criminal law can achieve. And maybe, because of the very issues around internationalisation, we need to be crafting laws which are more apt for that purpose.

Right. Yet for a British court these days, such stuff would be meat and potatoes.

Yes, because of the European Convention. Precisely. We are bound by the international Covenant on Civil and Political Rights but we are still locked into a model which is very much concerned with pragmatic views in situ, within a local situation. And the simple fact is the defence of a claim of right was never designed to do anything more than to offer impunity for a person who while damaging someone else’s property thinking it was his own, had acted in good faith. Or a person making a mistake about the substance of the law of contracts. Thought he had a legal right to do something, which in fact was wrong as a matter of the criminal law.

And the argument coming back would be… perhaps that parish pump notion of claim of right is itself now outmoded. And the principle involved – with respect to ignorance of the law issues – can’t be arbitrarily ring fenced in the way you’re suggesting.

That may well be right. It’s a debate that has to be had a policy level.

But instead, what we’ve got now is a change of law.

A change of law that is actually going to try and narrow it, not expand it.

And since one doesn’t own say, the hotel coat stand umbrella, a person could be more liable to being found guilty of theft under the new definition, as a result.

Possibly, Though you can still assert the principle I said before, of honest mistake of fact, which is based – and this an important principle that informs the whole debate – on the law holding people to a standard of their own subjective belief. And because subjective beliefs are inherently susceptible to being flawed or mistaken, the law holds people to a belief in the circumstances as they believe them to be – not what they were in fact…As a general principle it is a good defence. But the way in which certain crimes have been crafted, notions like claim of right are a species of mistake which has served a particular purpose in the law. Its never been allowed to confer impunity on people who do things that they know are criminal, for good motives.

With respect, that is a caricature of this situation. At Waihopai there was arguably a genuine dilemma between competing imperatives of law and the mistake was one made under the law, as to which imperative should take precedence.

I can certainly see your argument. And I’m looking at it from the way in which the law has developed.

And it does sound a bit like saying well, we’ve always done it this way.

(Laughs) You may be right. But that is a policy debate.

Part II : The Civil Case

In the civil case, the Crown will have a much easier road to hoe. In effect, all it has to do is prove that it owns the Waihopai base, that damage was done to it, that the defendants did the damage and that the cost of fixing it is X dollars – so, pay up, please. The Crown will be seeking the court to rule that all questions of motive, greater good, moral obligation, legal entitlement etc are irrelevant, and inadmissible.

If the case does finally go to court – and is not settled beforehand by an admission of guilt and an offer of compensation, which seems unlikely – the Crown may well find a judge willing to steer the narrow course outlined above. The question of the appropriate level of compensation though does potentially open the door wider – and if they get the chance, there would be nothing to stop the defendants from running the same arguments of necessity, defence of another and their honest belief in the compulsion to act, arising from their reading of the obligations under domestic law and international commitments.

If I’ve read the torts textbooks correctly, another possible ground for limiting the compensation amount could be to mount what is called an ex turpi causa defence. Such a defence would argue that the Crown’s own position is so morally compromised – in this case, by dint of its collusion with an illegal war of occupation, and with activities that violate international agreements embedded in our domestic law – that little or no compensation is appropriate for damage that interfered with them carrying out such dubious activities.

The Crown of course, would probably refuse to contest such a defence – and it would be then up to the judge to decide whether the connections to illegal behaviour being made by the defendants were compelling, and what weight should be given to the Crown’s refusal to engage with them. I explored some of these issues with Warren Brookbanks, and then briefly with his law faculty colleague (and torts specialist) Professor Bill Hodge :

Campbell : Looking ahead to the context of the civil claim by the state, would there be any obstacle to the Waihopai accused raising a claim of necessity or defence of another – as a plea in mitigation for compensation ?

Brookbanks : Well, it wouldn’t be in mitigation. Because the civil law serves a very different purpose. Civil law, basically the law of torts, is concerned with compensation for loss. It doesn’t depend on notions of intentionality. It depends broadly on notions of negligence, or negligent actions. So that once the plaintiff has established loss, and that loss can be causally connected to an act of the defendant, then that will generally be enough to establish civil liability for wrong-doing.

But is there any scope for potentially assessing the payment liable – to say, $5 – because of the context in which the damage occurred?

That’s possible, but I’m very reluctant to get too far into this because I’m not a torts lawyer…. What I do understand is that there is a broad principle of necessity which applies in torts law. So that if somebody in exactly the same scenario rescues a child which is in a swimming pool from drowning and they do it by smashing the fence around the pool to get to the child, then the claim of necessity negates their actions in breaking the fence which would otherwise be a compensatable loss to the owner of the fence…So, there is an active principle of necessity which would cover that. But the extent of it – and whether it would extend to the sort of situation that occurred in Waihopai – I don’t know.

One of the difficulties that exists around the world with these kind of cases, is that the defendants are more than willing to put forward their evidence for a chain of causality and the linkages between the local contribution and the horrific end result but the state will often, for reasons of national security, be unwilling to enter that arena. So the court is left with only one version of events, if any. So when it comes to compensation, the court can’t test the argument of necessity that the defendants are raising.

Yes, and I don’t know how this civil claim is going to break down. It strikes me as pointless, because as I understand it, none of the defendants have any money. You may bankrupt them, but what’s that going to prove?

And as some QC said, its not as if we have an epidemic of priests breaking into spybases.

Of course not, of course not. That’s why I don’t think there’s a need to change the law. That’s my own view. These cases are so unusual and so fact-specific, the likelihood of this happening again…It may do in another 50 years but its not sufficiently grave to warrant a major law change. Whether there’s a bigger principle that does need to be debated – because of the whole issue of internationalisation – is another issue.

That process of internationalisaton imposes a duty that the state be in compliance with the laws and treaties it has signed. Isn’t that the social contract – that if the citizen is compelled to respect the legality of those laws and the morality implicit in them, then so is the state?

That’s true, but the way to achieve compliance is not through perversely breaking the criminal law as a vehicle for forcing that greater compliance

Not even if there’s no other option, and all others have been tried in vain?

It is a question of whether there are other options. And obviously the ones that are lawful are more time consuming and perhaps more cumbersome. So people take a significant risk by taking this short cut – if you like – of breaching the criminal law.

You’re implying this was an arbitrary shortcut of convenience. They would argue that all other methods of trying to persuade the states in question had come to naught. While, in the meantime, the innocent were dying.

It is a Catch – 22, and one may have great sympathy for their plight. But the problem is, their plight cannot be validated by choosing to deliberately breach the criminal law to bring attention to that situation, That’s the difficulty they faced. They chose in a quite deliberate way to break the criminal law knowing that they were breaking the criminal law – there was no question about that. And therefore its much more difficult with that knowledge to say well, our very good intentions should confer complete impunity for our criminal acts. ..[But] You’re quite right. If all other measures had failed – and the state had clear duties under international law that were not being complied with – what do you do? I don’t know that there’s a simple answer to that. But I don’t think the answer is to commit a criminal act and claim impunity., Because the result of that would be to confer impunity on a lot of other people who think we’ll do this too, and the law will let us off as well.

I don’t think anyone wants to go down that road. For now though, it seems worth giving proper consideration to the situation where when laws are in conflict, as to which one do you give greater weight.

You can certainly argue that, but I don’t think that’s the approach that Parliament has chosen to take in reforming the ‘claim of right’ issue.

Campbell : The defendants have never denied doing the damage, so its a fairly straight line in a civil law context – and given that there was clear intent, there is even the possibility of punitive damages. But from what you know of the circumstances of the case, could an ex turpi causa line of argument hold water?

Hodge : Ex turpi causa meaning that the plaintiffs are in a bad position, because it is an unjust thing they are doing. But you haven’t connected listening to emails from New Zealand to…the much crazier decision by Bush to illegally invade Iraq, which it seems he was going to do, regardless…There’s no causal nexus.

But as we are seeing in cases in Britain, the state habitually refuses to enter the arena when it comes to establishing those causal connections. That’s why you’re left with what looks like a conspiracy theory. Yet there is evidence that intelligence gathering by this means is used for ongoing military purposes in both Afghanistan and Iraq. Therefore, there is a chain of complicity.

You’re making a splendid case in linking those things, and if the government declines to respond – on the grounds that there is no causal nexus whatsoever between listening to some emails [and the invasion of Iraq] – then there might well be a point in raising that.

What’s the usual plank for an ex turpi defence? Do you really have to show the plaintiff is a criminal?

The phrase is basically saying ‘coming to equity with dirty hands.’ It is saying that the plaintiff’s right of action comes from an immoral consideration, an immoral foundation. That’s what ex turpi causa refers to. As in… maybe I’ve got a house of prostitution and you burn it down. And I sue you for damage to my house of prostitution. Something of that sort. And that you shouldn’t be rewarded for your immoral acts.

So, collusion in an illegal war might meet that test?

That would, certainly. The question you’ve startled for me is that if they wax eloquent and articulate on this issue, and the extent the government would feel then embarrassed, or feel proscribed from responding in detail about the innocence of the Waihopai base…. [Just as arguably Hodge adds, if the Waihopai base had done its job better, they might have deterred the invasion. Problem being : not enough intelligence info, not too much.] It may well be, as you say, that [the Crown] will refuse to enter that arena. And it would then fall to the court…Which may mean they [the defendants] could still get done for some of the damage, but the court could well take that silence [by the plaintiffs] into account, in assessing the damages.

Beyond ex turpi, in generic tort cases, what sort of arguments in mitigation are usually run?

You usually run a plea in mitigation saying : lets look at the context of the act, lets look at the character of the individuals and what they’re ever done by way of harm to anyone before – any violence, any fraudulent behaviour. And whether it would be appropriate to impose an impossible burden on people who may have had a good motive, albeit they did the act, and caused the harm.

…The plaintiffs only need to show that you intended to do what you did. That you weren’t unconscious, and it was you. Rather than what your mens rea was, or what your motive was, or what you intended to achieve down the road. If they are successful, what the government could say is this : all you can look at is that those people broke down the fence, those people damaged the fabric, those people caused the harm, and so, stop your analysis at this point..

But what’s the next step, in assessing how much the damages for that should be?

There may be no next step. If the government wins on that point, the only step may be how much it cost to repair. And it won’t go any further.