Drawing Blood from a Stone.

datePosted on 19:59, October 8th, 2010 by Pablo

The government’s decision to file a civil suit against the “Waihopai 3” is vindictive and a gross waste of taxpayer dollars. Much like the Zaoui case, which could have been concluded years before it actually did at far less cost than the amount on the final bill, this is a classic example of a vexatious state litigation. Vexatious state litigation, to coin a phrase, is an instance when the state (exemplified here by the Crown) continues prosecutions, appeals or defenses long after legal defeat is obvious and, as in the case here, judicially administered. Even so, there are a few aspects of the case worth reviewing.

As I mentioned in an earlier post titled “Political Idealism Trumps the Law,” the Waihopai 3 expertly exploited the claim of right defense to defend their direct action against the eavesdropping station. Contrary to most direct action proponents, they did not admit their crimes and accept their due punishment, but instead used the claim of right defense to argue their innocence based on moral grounds. Among other things that defense states that even if mistaken in their motives, people who honestly believe that their acts will prevent a greater harm are exonerated of responsibility for the consequences of those acts. Thus, although I (and presumably the government) believe that they are mistaken in claiming that the Echelon station at Waihopai facilitates torture, war crimes, crimes against humanity and human rights violations, the important point is that Peter Murnane, Adrian Leason and Sam Land were found by a jury of their peers to be innocent because they sincerely believed that their actions were helping to prevent a greater harm. So long as the claim of right defense exists in the law and juries are willing to accept that defense as legitimate, then the verdict should stand and, in the absence of irregularities in the administration of the case, no appeals or civil lawsuits filed. In other words, that should be the end of the story.

If the government does not like the claim of right clause in the law, it can work to change it. But suing for civil damages to the tune of 1.2 million dollars, including the cost of pies, beer and savories for repair workers, smacks of imperial hubris. Moreover, the claim is unrecoverable even if the Crown were to win the lawsuit. Father Peter has no tangible assets, and since neither the Dominican Order or the Catholic Church were party to his actions, they cannot be made parties to the suit. As for Land and Leason, what is the Crown going to do–confiscate Land’s organic farm and repossess Leason’s house while garnishing his salary, thereby throwing their families onto the street (and dole)? Even if it did so, the amount recovered from the sale of the assets of all three men would not come close to paying the full bill. So what is the point if the full costs are not anywhere close to recoverable?

The Crown also has not thought through the consequences of its lawsuit. The GCSB refused to front up at the original trial in order to refute the defendant’s allegations. That pretty much left their claims uncontested, which was instrumental in the jury’s verdict. Is the GCSB now going to show up at a civil trial and be prepared to re-litigate the original claims under the claim of right defense? If not, then there is no case for damages because a verdict of innocence under the right of defense absolves defendants of financial liability stemming from their acts. To put it bluntly: a verdict of innocence under the claim of right defense means full absolution from liability. That is why the right of defense is such a dramatic line to take and so difficult to argue successfully, which is why most direct action militants do not even bother with it and opt to plead guilty and ask for judicial mercy citing mitigating factors. But in this case the right of defense was made and it prevailed. Unless the GCSB wants to testify as to the merits of the claim of right defense as well as to the extent of the damages incurred (which I believe have been exaggerated) then there is no case to be made. If there is no case to be made, the pursuing the lawsuit is a waste of time and public money.

If the government allows this civil suit to continue it will be another example of politicians and state bureaucrats playing loose with taxpayer money in order to prove a vengeful point regardless of the merits of the case. The suit is clearly designed to be a warning to others who would dare to use the claim of right defense for direct actions, and therefore not only a form of vexatious state litigation but also an act of official intimidation against those who would dare speak (their) truth to power. For a supposed liberal democracy, that is a bad look.

10 Responses to “Drawing Blood from a Stone.”

  1. Bruce Hamilton on October 8th, 2010 at 21:06

    Around about now, the law review of the “claim of right” defence was due to report to Simon Power about possible law changes. I’m not sure of the status, but it may have been factor in the decision to seek compensation. The government is already on record as saying change is needed.

    I’m not a lawyer, but understood that it was always an option for the owners of the damaged property to seek restitution via civil action. If I recall correctly, the defendants had their assets in trusts, which presumably could be made available, if the court wished to.

    My understanding is that the Crown had to show that the defendants did not believe that the Waihopai base was causing harm. That’s clearly very difficult to do, and the judge apparently reinforced to the jury that it was the responsibility of the Crown to clearly show the defendants did not believe the base was causing harm.

    The same applies for the claim of right situation where people inadvertently purchase stolen goods. The Crown has to show they had good cause to believe the goods were stolen, eg low price.

    If the law is changed, it’s quite likely that the burden of proof will change. I suspect that the review report is imminent.

  2. Pablo on October 8th, 2010 at 21:30

    Bruce: I see your point but does it not strike you that there is a “double jeopardy” aspect to this lawsuit? That is, if the Crown cannot get them in the criminal court then it might as well try in a civil court in spite of the innocent verdict. Remember, this is not like the OJ SImpson case where he was found criminally innocent but civilly liable–in claim of right defenses a verdict of innocent exculpates the defendant from civil liability as well (or so I understand).

    Of course, if there are assets in trust that are recoverable (and I have that there are), then the Crown may feel that a the costs of suing, if not the costs of the repairs themselves, will be balanced by what is recovered. Which means that for the lawyer caste that decides such things, the taxpayers break even on the litigation even if they wind up paying for the repairs. To which the Crown lawyers will say: “ker-ching!”

    My partner noted one very important aspect of the original case. Normally the claim of right defense rests on the assumption of imminent harm. That is, the defendants operated on the belief that they were preventing an imminent greater harm from occurring by engaging in the acts they were charged with. But that aspect of the claim of right defense was never in play at the trial because the GCSB did not appear in order to give a minimal unclassified brief on the nature of what it does (which, as I have said before, is much less focused on obtaining time sensitive–and thus “imminent”–tactical intelligence than it is on strategic intelligence).

    With the imminence clause not in play the Crown was hamstrung because, if I were the prosecution, that would have been the basis of the argument (i.e. does the jury believe that by deflating the dome the Waihopai 3 managed to prevent a drone strike on civilian targets the next day? Or the torture of anyone?)

    I have no doubt the law will be changed or rescinded. That to my mind is a sad commentary on the disposition of the NZ political elite. After all, political zealotry in pursuit of a good cause is not just the province of contemporary religious extremists, pacifists or environmental activists. It was the foundation for the French and American revolutions as well. Hence, I say give those with righteous anger their claim of right defense, and let the Crown do better homework in the first instance rather than play the vexatious state litigation card as its favoured legal recourse.

  3. Bruce Hamilton on October 9th, 2010 at 12:41

    Bruce: I see your point but does it not strike you that there is a “double jeopardy” aspect to this lawsuit? That is, if the Crown cannot get them in the criminal court then it might as well try in a civil court in spite of the innocent verdict. .

    If I consider the case of inadvertent ownership of stolen goods, then the legal owner can sue in the civil courts to retrieve their property and possibly compensation for any consequential damage/losses.

    In this case, the government has now put on a different hat, and wants the damage rectified, because their property was harmed, and they had to pay to fix it. Seems reasonable to me….

    As I understand it, one problem with using a “claim of right” defence is that there is no test for the “reasonableness” of the response, so the Crown had to show the defendants didn’t truly believe the base was causing harm.

    They didn’t actually need the GCSB to appear, they needed to convince the jury that the defendants didn’t believe the base caused harm. Pretty much mission impossible against well-briefed defendants.

    From a Sunday Star Times article in April – I didn’t retrieve the whole article to check details…

    “Two of the three men who vandalised the Waihopai spy base hold interests in properties worth around half a million dollars, despite claiming they had less than $1000 between them.”

    But they don’t believe they’ll lose the properties if a $1.1 million damages claim by the Crown goes ahead…..”

  4. Thomas Beagle on October 9th, 2010 at 13:15

    So, if the Crown loses this case, can we expect them to send the IRD to do a tax audit on them? Maybe the Pork Board could use their powers to inspect their houses for bacon selling. Or NZ Customs could give them ‘special searches’ next time they go through the border.

    How far will the government take their vindictiveness?

  5. Stuart Mackey on October 9th, 2010 at 14:56

    From a very limited perspective I can see the Crown case, they did the deed and they should be made to pay for it. If we widen the perspective, why does the crown wish to spend money we can ill afford, and can never recoup, to give these bozo’s more oxygen?

  6. […] delusional this week is the governments decision to run a civil case against the Waihopia 3. The crown lost the criminal case against them primarily because the GCSB would not testify on what […]

  7. Alex on October 10th, 2010 at 13:38

    I’m only a lowly law student, but I’ve never heard that a verdict of innocent resulting from a claim of right defence exculpates you from civil liability.

    The Claim of Right defence has been rather misleadingly (really, just wrongly) reported. What it is not is a defence based on moral justification – the Crimes Act was amended in 2003, replacing the word “justifiable” with “lawful” re: the claim of right defence to remove this doubt, and the Supreme Court confirmed this reading in 2008. It is also a defence that can only be raised where an enactment expressly says it can – for example, it is not available as a defence to murder.

    This is the definition of “Claim of Right”:

    “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.”

    A simple example of a claim of right defence is where you take a bike that belongs to someone else, believing it to be yours. You’ve fulfilled both the actus reus and mens rea elements of the offence (ie. you took the bike, and you meant to take it) – but it would be absurd if we didn’t allow people a defence when they made a mistake as to whose bike it was. Note: you do not need to have in your mind “I intend to do something unlawful” to commit an offence, for obvious reasons.

    The Waihopai 3’s case was based on a mistake of law – a narrow exception to the general rule that ignorance of the law is no excuse. The trial judge actually ruled that they had acted unlawfully, but that it was open to the jury to decide whether the Waihopai 3, at the time they committed the offence, believed they would be acquitted if they faced charges. They needed a basis for their belief – namely the defence of necessity, defence of another and duress of circumstances. Although these defences themselves were unavailable to the accused, the accused believed that they would be (at least, this is what the jury held) – and that is the essence of the claim of right defence in this case.

    As for the Crown suing for damages, I don’t see anything (legally) wrong with that*. If the property had been owned by a private citizen, the owner would still be allowed to sue the Waihopai 3 to recover their loss even though they’re not criminally liable. On a slight tangent, where you undertake a citizens arrest, and it turns out you shouldn’t have, you aren’t criminally liable for assault/false imprisonment/whatever if you had valid reasons to believe you should have arrested that person. However, that person can still bring civil proceedings against you and recover damages. I’d assume the same principle would apply here.

    *That is not to say they should do it, however.

  8. Pablo on October 10th, 2010 at 14:14

    Thanks Alex.

    That is a good summation. I am wary, however, of things like the bike analogy when attempting to deconstruct the complexities of this case. The bike analogy over-simplifies the issue because it does not address the “preventing greater harm” argument that the Waihopai 3 made in their claim of right. The more useful analogy is usually the one in which someone breaks into a car under the mistaken assumption that there is child suffering heat stroke inside. The child turns out to be a doll. The person clearly damaged someone else’s property. S/hey were clearly mistaken in his/her belief. And yet s/he innocent under the claim of right because s/e acted honesty as a good samaritan. Should that person subsequently be sued for damages? If so, what impact will that have on other potential good samaritans?

    In the broad political context, the Waihopai 3 can be viewed as ideological good samaritans who felt that they were preventing a greater harm under the mistaken belief that the Echelon eavesdropping station was a direct contributor to torture, genocide etc. They were found innocent under the claim of right defense. Suing them is therefore nothing more than state retribution and intimidation rather than justice.

    After all, the Waihopai station and its North Island counterpart are not bikes. They have agency, and it is that agency that prompted Murnane, Leason and Land into action.

  9. John Schmidt on October 10th, 2010 at 20:19

    Being poor does not absolve them from the consequences of their actions, if this was the case the arguement would extend to poor people being except from paying traffic fines.

  10. fred on October 11th, 2010 at 21:08

    the truly inanely distressing thing about this was the people who came out and said things like well this just shows why we shouldn’t have jury trials.

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