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Waihopai Acquittal Must Be Appealed

Waihopai Vandalism and Burglary Acquittal Must be Appealed by Crown

The Society contends that Solicitor General, Dr David Collins, QC, should ensure that the Crown appeals the flawed decision of the jury that acquitted the three Waihopai spy base protestors on 17 March 2010 of charges of burglary and intentional damage (vandalism) to government property amounting to NZ $3.5 million. The men entered the base by cutting through the perimeter fence of the high-level security base in April 2008 and then slashed the dome over the satellite using sickles..

Their acquittal that followed an eight-day trial, was based on a "claim of right" defence, where in the minds of the three men, when they cut through the spy-base fence and slashed the dome, they claim they honestly believed they were acting lawfully and within their rights. The vast majority of reasonable-minded law-abiding New Zealanders recognise such claims as preposterous, self-serving and dishonest.

The "claim of right" defence is normally used in property cases, where the case turns of whether or not the case can be established beyond reasonable doubt that the accused believed their actions were lawful, even if they were ignorant or mistaken. The prosecution must counter such a "claim of right" by establishing beyond reasonable doubt that the accused could not have truly believed that their actions were lawful. In the Waihopai case the Crown failed to do this, but the question remains as to the quality of the direction given to the jury by the Judge that led to the acquittal..

The Waihopai case ruling did not turn on establishing beyond reasonable doubt that the men genuinely believed their actions would save lives, and that having accepted this that the force they used was reasonable. If a judge misdirected the jury on this point, and the Crown appears to think he did, then an appeal should be applied for. Any jury member would have been seriously misguided to take the view this case turned on establishing that the concept of "justified force" applied and that the sincerity of the attackers beliefs about saving lives were critical.

The "reasonable force" defence argument can be used legitimately with respect to actions involving the behaviour of a person(s) charged with the control and discipline of an individual person(s) (e.g. ship and aeroplane captains and officers) and in self-defence. But they do not apply in this Waihopai case and yet the jury appears to have been directed otherwise.

Actions that lead to the damage of government property can be justified in law if the saving of lives and/or prevention/minimisation of immediate harm to an individual(s) or animal(s) can be established as the direct outcome of taking such action. The nexus between the real possibility of harm prevention/loss of life and the force used, must be one that most reasonable-minded persons would accept exists and can be demonstrated. Direct intervention in disrupting and disconnecting a high voltage electric fence on government property that had entangled a suffering victim is fully justifiable, even if the 'vandal' admitted that he knew it was against the law to 'tamper' with such property. Similarly cutting through government security fencelines to free trapped livestock so they can avoid drowning in the event of rising flood waters is perfectly justified in law.. However, in both these cases a law-abiding citizen would attempt first to contact government authorities, if possible, to request them to free those in harm, before ever embarking on a solo or grandiose gratuitous group action involving sickles, religious incantations and other juvenile paraphernalia, without reference to authorities.

The actions of the three men - teacher Adrian Leason, 45, Dominican friar Peter Murnane, 69, and farmer Sam Land, 26 - involving burglary and wilful damage to the Government Communications Security Bureau (GCSB) base at Waihopai falls well outside the "claim of right" defence protections available in law. They are only open to those individuals who are 'compelled' to 'damage' government property in order to actually save lives or actually relieve suffering and truly believe that their actions are lawful in the circumstances..

The Crown could easily establish on appeal that the three Waihopai vandals knew their actions were illegal. The secretive and calculated nature of their attack and their decision not to give any prior notification to government authorities of their actions, speaks volumes. The highly publicised pantomine they undertook brandishing sharpened self-serving sickles and declaring "In the name of Jesus Christ we release you" (or similar words from the fundamentalist dictionary) with reference to a balloon canopy, serves to highlight the extraordinary attempt they undertook to dress this illegal action up as some sort of benevolent work of god's righteous holy-than-thou agents. Similar barbaric vandalism was carried out by 'Christian' knights in the Crusades. Instead of balloons being punctured, so-called 'Christian' zealots butchered and raped Muslims and created untold destruction to Muslim property in the claimed belief that it was "right".

And what about other consequential impacts of the Waihopai vandalism besides the $3.5 Million repair bill the tax-payer will have to fund. If the base were closed for a period so repairs could be made, what are the consequences of this in terms of endangering the lives of Kiwis (e.g. failures to monitor Islamic terrorist traffic properly in the South Pacific) at home and serving abroad? Second. The massive repair bill depletes government funding that could have been used elsewhere in the economy to save lives e.g. staving off life-threatening diseases through health care initiatives..

The teacher, farmer and Dominican friar should each make full reparation to the Crown for the damage done to government-owned property.

ENDS


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