Waihopai trio may face new trial

The Crown may yet take another run at the Waihopai saboteurs who were acquitted yesterday of wilful damage and burglary charges.

The three men - teacher Adrian Leason, 45, Dominican friar Peter Murnane, 69, and farmer Sam Land, 26 - were acquitted yesterday on charges of burglary and wilful damage at the Government Communications Security Bureau (GCSB) base at Waihopai.

After cutting through apparently alarmed, electric fences without setting off any audible alarms or getting electrocuted, the men reached one of two inflatable domes covering satellite dishes, placed their hands on the plastic skin and said "we disarm you in the name of Jesus Christ", before slashing it with sickles.

The three said they were saving lives in Iraq by disrupting satellite transmissions. A jury in Wellington District Court found them not guilty.

But the Solicitor General, Dr David Collins, QC, said today further action may be taken.

He said in a statement that trial judge Stephen Harrop reserved a question of law relating to the "claim of right" defence used by the three.

"The Crown will now consider the judge's ruling and directions and decide if it is appropriate to pursue an appeal," said Dr Collins, who declined further comment.

The question was reserved under Section 380 of the Crimes Act, which provides for a trial judge to reserve questions of law for the Court of Appeal at the request of either the defendant or the prosecutor.

"If the result of the trial is acquittal the accused shall be discharged, subject to being again arrested if the Court of Appeal orders a new trial," the law says.

Such an arrest would not be barred by rules against "double jeopardy".

Though the Bill of Rights says people who have been finally acquitted or convicted of an offence cannot be tried for it again, the Crown can get around that by effectively reserving the right to appeal an acquittal.

A similar tactic was used recently in the prosecution of Christchurch murder accused George Gwaze who was last month retried in the Supreme Court despite having previously been found not guilty in May 2008 of the murder of his 10-year-old niece.

In the Waihopai case, the jury took two hours to acquit the defendants after finding they genuinely believed their actions would save lives and that the force they used was reasonable.

Mr Murnane said after the trial the trio knew what they had done "was right" because it was done for the greater good.

"That brought a claim of right and we knew we had a right to do that because we were saving people from much greater evil than the mere cutting of a bit of plastic."

According to Auckland lawyer Peter Williams, QC, it may have been the first time the greater good defence was used in New Zealand.

Law Society criminal law sub-committee convener Jonathan Krebs said the "claim of right" was enshrined in statute law, but usually used in property cases, such as where a purchaser of stolen property believed the seller owned and had a claim of right to the property.

TV3 Sunrise programme host Oliver Driver was criticised today by Community Gaming Association chairman John Burke for suggesting the Waihopai decision provided legal justification for going into bars and smashing pokie machines, on the grounds that they were hurting problem gamblers and their families.