Option chosen for reform of 'claim of right' defence

Cabinet has agreed to amend the ‘claim of right' defence so only those who believed they had a right in the property concerned could use the defence, Justice Minister Simon Power announced today.

The Solicitor-General recommended in April that the Minister review the defence after serious questions were raised about it being used in the Waihopai 3 sabotage case.

In July, Mr Power released preliminary advice from the Ministry of Justice which showed the courts had extended the scope of 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 advice also showed that the law was out of step with comparable overseas jurisdictions, including England, Canada, and several Australian states.

"As the law stands, defendants charged with certain property offences can use the defence if they genuinely believe their actions are lawful," Mr Power said.

"But it's clear that the defence was not intended to be used to excuse people who take or damage property who are not claiming a personal property right, as in the Waihopai case."

Mr Power said he asked the Ministry of Justice to identify which of five reform options best fitted with New Zealand's legal framework: shifting the burden of proof, adding a reasonableness element, amending the offences that have ‘claim of right' as an element, adding a property right criterion, or repealing the defence.

Mr Power said adding a property right criterion was the preferred option for the following reasons:

• It recognises that defendants who made an honest mistake in believing they had a right to deal with the property in the way they did, should not necessarily be held criminally responsible for their actions.
• It ensures that defendants who did not believe they had a proprietary or possessory right in the property would not be excused from criminal responsibility as a result of the defence.
• It is consistent with the purpose of the ‘claim of right' defence at common law and is similar to the approach taken by some overseas jurisdictions.
• It realigns the law with the likely intent of Parliament when it was defined in statute in 1961, and amended in 2003.

"Adding a property right criterion means the defence will be available only to defendants who believed they have a proprietary or possessory right in the property involved."

"The Government wants the ‘claim of right' defence to be clear and straightforward for defendants, lawyers, judges, and the public, and I'm confident this amendment will achieve that."

The amendment will be made in the next available legislative vehicle.

The Ministry of Justice's advice to the Minister on the claim of right reform options, and the Cabinet paper, can be viewed here.