Should the 'greater good defence' used by the Waihopai 3 be acceptable in NZ courts?
Three activists who freely admitted breaking into a government spybase near Blenheim and slashing an inflatable plastic dome covering a satellite dish have walked free.
Their defence – that they mounted the attack to prevent others' suffering – has been successfully used by Iraq-war protesters overseas, but is thought to be a New Zealand first.
Teacher Adrian Leason, 45, Dominican friar Peter Murnane, 69, and farmer Sam Land, 26, were charged with burglary and wilful damage at the Government Communications Security Bureau (GCSB) base at Waihopai.
The prosecution said the trio cut their way through fences into the base on April 30, 2008, then slashed the plastic cover over a satellite dish with sickles.
The three men readily admitted attacking the base, but said they were driven by a belief that the satellite caused human suffering and their actions to shut it down, if only temporarily, were lawful.
A jury in Wellington District Court took two hours to acquit them of all charges yesterday. A similar defence – known as the greater good defence – has been run by protesters in Britain, Ireland and Germany.
In 2006, a jury acquitted five peace campaigners who used an axe and hammers to cause US$2.5 million damage to a United States Navy plane that was refuelling at Shannon airport, Ireland, in 2003 on its way to Kuwait to deliver supplies for use in the impending war.
In the US last month, anti-abortion campaigner Scott Roeder was convicted by a judge of murdering an abortion doctor after failing with a similar defence. His lawyers had argued for a lesser conviction because Roeder believed that the killing was justified to save the lives of unborn children.
Auckland lawyer Peter Williams, QC, did not know of the greater good defence being used in New Zealand before.
"I would have thought it would have been looked at somewhat sceptically by the conservative New Zealand judiciary.
"I've always thought it was quite a good defence myself. It's very democratic."
Wellington lawyer John Miller said that, in acquitting the men, the jury would have to have decided whether they genuinely believed their actions would save lives and, if so, whether the force they used was reasonable. "If you believe someone's in grave danger of suffering and you prick a balloon [at the spybase], that seems quite reasonable, given your subjective belief."
Outside court, Father Murnane, who represented himself at the trial, said the action taken by the group had been successful. "We wanted, in going into Waihopai, to challenge these warfaring behaviours and I think we have done this. We have shown New Zealanders there is a US spy base in our midst."
He had told the court at the beginning of the trial that the trio felt strongly about the unspeakable evil caused by activities enabled by spybases, such as torture, war and the use of weapons of mass destruction, such as depleted uranium.
He told TV3's Campbell Live he was "not entirely surprised" but still relieved by the not guilty verdict. "I had a gut feeling all along that we would get an acquittal – but you can't be sure of that."
Asked if he would do it again, he said he did not need to. "The nation [now] knows much more about the spybase and the harm it does."
Mr Leason said the group "broke a law protecting plastic to uphold a law to protect human life".
A spokesman for Prime Minister John Key, who is also minister for the SIS and the GCSB, said Mr Key would not comment on the decision as it was an intelligence and security matter.
The US embassy also did not comment.
Green Party foreign affairs spokesman Keith Locke said evidence presented at the trial showed that Waihopai was collecting intelligence to help the US Government. "This included intelligence to help the United States prosecute the Iraq war, even though the New Zealand government was opposed to that war.
"I hope that the not guilty verdict will help break down the blanket of secrecy that successive governments have imposed around the operations of the base, and its true purpose."
A lobby group has called for the Waihopai spy base to be closed following the acquittal.
The Christchurch-based Anti-Bases Campaign urged prosecution of the base operators for crimes against humanity.
Spokesman Murray Horton said the "Domebusters" had believed they had the law on their side and were proud of what they did.
"They did it because Waihopai operates, in all but name, as an outpost of US intelligence on NZ soil..." he said.
He said the base should be closed immediately.
NO LEGAL PRECEDENT
The acquittal of the three does not set a legal precedent, but other defendants may consider using the same "greater good" defence, a criminal law expert says.
Law Society criminal law sub-committee convenor Jonathan Krebs told Radio New Zealand he had never heard of a defence referring to a greater good before.
The "claim of right" defence used by the trio was enshrined in statute law, but usually used in property cases.
An example of its regular use would be as a defence when stolen property was unwittingly purchased, with the purchaser believing the seller owned and had a claim of right to the property, Mr Krebs said.
"[The Waihopai defendants] claimed that they honestly believed that they had the right to do so because they needed to, for certain honestly-held beliefs."
No precedent was created by their acquittal, because precedent was only set by judicial decisions on matters of law, not jury decisions on facts, he said.
"I can imagine, as often happens when a defence is raised and receives such widespread publicity and discussion, that others might be interested in at least considering advancing it but...there's actually no binding effect from the decision of the jury."
- with NZPA
- The Dominion Post