'Greater good' defence won't work for others - expert

Photo / Tim Cuff

A "greater good" defence does not exist legally and its future use has been made unlikely by the very public acquittal of three men who damaged Waihopai spy base, says a legal expert.

Three men were found not guilty by a jury in the Wellington District Court yesterday even though they had admitted to breaking in and damaging a satellite cover at the Government Communications Security Bureau's Waihopai spy base.

The Crown is currently considering the decision and may decide to pursue an appeal.

The trial judge reserved a question of law relating to the offence of "claim of right" pursuant to section 380 of the Crimes Act 1961 - the only situation which allows for a Crown appeal following an acquittal, the Solicitor-General said in a statement today.

The unlawful action of damaging a spy base led to no conviction because, in the eyes of the jury, the perpetrators had made a genuine mistake and had believed they had a legal defence.

It would be impossible for the men to get away with the same act again, as the trial had made it clear to them it had been unlawful, said Law Society criminal law sub-committee convenor Jonathan Krebs.

Given the publicity about the case, it would be hard for future defendants to claim they genuinely - and mistakenly - thought a "greater good" defence justified criminal activities, Mr Krebs said.

"Nobody else is going to get a crack at it either. I say that flippantly, but there's been so much publicity that [a 'greater good' defence] is bizarre, nobody will get [away with] it."

The court was told the accused trio had believed, when they broke into Waihopai base, that their actions were lawful under the legal defences of "necessity" and "defence of others", said Bryan Law, a peace activist from Cairns who attended the trial, on Scoop.

These defences have become labelled, in this specific case, as a "greater good" defence.

But the judge told the trio "necessity" and "defence of others" did not apply to their case.

Instead, the trio were defended under "claim of right", that they had genuinely, if mistakenly, believed their actions were lawful.

The Crimes Act:

# Section 2: "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"

# Section 25: "The fact that an offender is ignorant of the law is not an excuse for any offence committed by him."

The case:

# The Waihopai trio were charged for burglary and intentional damage.

# They were acquitted using the "claim of right" defence - that they genuinely believed their actions were lawful.

# This defence is common for someone who did not know they were dealing with stolen goods.

# The Waihopai trio said they had honestly believed their actions were lawful under the defences of "necessity" and "defence of others".

# "Necessity": That breaking a law was more advantageous to society than what would have happened had they followed the law.

# This legal defence has successfully justified trespassing to save a person's life or property.

# "Defence of others": Related to self-defence, that a law was broken to prevent physical harm or to prevent another crime.

# This can be used to defend police officers who shoot someone to prevent a death.

# One of the Waihopai trio, Peter Murnane, said in the trial they had believed they "were acting from necessity in the defence of countless others".

# But the judge told the trio that they could not be defended by "necessity" and "defence of others" - that damaging the spy base could not be defended as preventing harm.

# So the trio used "claim of right" - that even though they had been mistaken, they had genuinely believed they were in the right.

# Crown prosecutors had to prove beyond reasonable doubt that the trio had at best only hoped that their actions were legal, rather than genuinely believing it.

# Jury took two hours to decide that the genuineness of the trio's beliefs had not been disproved beyond reasonable doubt.