Claim of Right Review
Ministry of Justice review of the claim of right defence
In April 2010, Hon Simon Power, Minister of Justice asked the Ministry of Justice to undertake a review of the claim of right defence, used successfully by the three defendants in the Waihopai case. The review focused on whether an amendment to section 2 of the Crimes Act 1961, which defines ‘claim of right’, is required. The Ministry provided preliminary advice to the Minister on this matter in June 2010.
Review of the ‘Claim of Right’ Defence – Initial Briefing (PDF 2.41MB)
Further advice on the reform option that fits best with New Zealand’s legislative framework was provided to the Minister in October 2010. Six options were considered in the paper: repeal the defence; shift the burden of proof; amend the offences that have claim of right as an element; require the defendant’s belief to be reasonable; add a property right criterion; and add a property right criterion and a reasonableness element.
Review of the Claim of Right Defence – Proposed Reform Option (PDF 2.72 MB)
Cabinet has agreed to amend the claim of right defence by adding a property right criterion. This means that the defence will be available only to defendants who believed they had a proprietary or possessory right in the property involved.
