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Thursday, March 18, 2010

The claim of right defence

It is fair to say that some people are astounded that the three men that attacked the Waihopai spybase were acquitted yesterday.

The "claim of right" defence ( as per s269(2) of the Crimes Act) was the key to this trial and the jury accepted that this defence is valid. Graeme Edgeler has illustrated what this defence is in what I think is a very accessible example. I'm sure he won't mind me repeating it here, and I'm sure he will agree that this example does not necessarily mean that he condones the actions of the Waihopai three. Not saying I necessarily condone it either, but the defence is available.

The "claim of right" defence is to do with property. You don't have to think you own something to rely on claim of right, you just need to think you have some right to do what you’re doing with the property. So here goes...
You come across a car with all the windows closed on a really hot day, it’s obviously really hot in the car, you look in the car and see a dog that has passed out from the heat. You yell out and no-one owns up to owning the car, you break the window to provide help to the dog, and find that it’s actually a dead dog that has been stuffed.

Do you own the car? No. Do you believe you own the car? No. Was your damaging the car necessary for some greater purpose, like saving an animal’s life? No. But you believed you were justified in damaging the car for some greater purpose. You have a claim of right.
BTW this case does not set a legal precedent, because the jury made a decision on the facts of the case, as opposed to a decision made by a judge. Nor does it mean that you have a right to kill someone because you think you are justified in doing so for some greater purpose.

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