Leason and Others v the Attorney-General

• Jurisdiction: New Zealand
• Judge: Randerson,Stevens,White JJ
• Judgment Date: 25 October 2013
• Neutral Citation: [2013] NZCA 509
• Court: Court of Appeal
• Docket Number: CA642/2011
• Date: 25 October 2013

Between

Adrian James Leason

First Appellant

Peter Reginald Leo Murnane

Second Appellant

Samuel Peter Frederick Land

Third Appellant

and

The Attorney-General

Respondent

[2013] NZCA 509

Randerson, Stevens and White JJ

CA642/2011

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against decision granting summary judgment to Attorney-General on a claim for liability in trespass — appellants entered the Government Communications Security Bureau facility in Waihopai Valley in 2008 and deflated a satellite dome cover by cutting it — appellants were motivated by a desire to expose and prevent the harm caused by the second Iraq war — whether appellants' actions were in defence of another under s48 Crimes Act 1961 (self-defence and defence of another) — whether the defence of necessity or duress of circumstances applied — whether the plaintiff should be denied relief under the principle of ex turpi causa non oritur action (cause of action founded on illegal action).

Counsel::

B J Shone for Appellant

No appearance for Respondent

• A The application for leave to adduce further evidence contained in the affidavit of Theresa Catherine von Dadelszen is granted.

• B The application for leave to adduce further evidence contained in the third affidavit of Treasa Moira Dunworth and the second and third affidavits of Nicolas Alfred Hager is dismissed.

• C The appeal is dismissed.

• D The appellants must pay the respondent one set of costs for a standard appeal on a band A basis and usual disbursements. We certify for two counsel.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Stevens J)

Table of Contents

	Para No
Introduction	[1]
Background	[6]
Assumptions made in the High Court and on appeal	[14]
Assumptions in the High Court	[14]
Assumptions on appeal	[15]
Application for leave to adduce further evidence	[25]
Legal principles	[26]
Submissions on fresh evidence	[29]
The von Dadelszen affidavit	[33]
The second and third Hager affidavits	[34]
The third Dunworth affidavit	[35]
Summary judgment principles	[39]
Defence of another	[42]
Section 48	[43]
(a) High Court decision	[43]
(b) Appellants' submissions	[47]
(c) Discussion	[50]
The common law defence	[62]
The defence of necessity or duress of circumstances	[65]
High Court decision	[66]
Appellants' submissions	[76]
Discussion	[79]
The principle of ex turpi causa	[83]
High Court decision	[84]
Legal principles	[90]
(a) General principles	[91]
(b) Ex turpi causa and property claims	[117]
Appellants' submissions	[126]
Our evaluation	[129]
Conclusions	[138]
Result	[142]

Introduction

1 This is an appeal against a decision of Associate Judge Gendall granting summary judgment to the respondent on a claim for liability in trespass jointly and severally against the appellants. 1

2 On 30 April 2008 the appellants, Adrian Leason, Peter Murnane and Samuel Land, entered the Government Communications Security Bureau (GCSB) facility in Waihopai Valley and deflated a satellite dome cover by cutting it. The appellants say they were motivated by a desire to expose and prevent the harm caused by the second Iraq war, to which they believed the operation of GCSB Waihopai was contributing.

3 The appellants accept they have no defence based on the elements of the cause of action in trespass to property. They did not assert one in the High Court. 2 Nor did they contend otherwise on appeal. Rather, they say that summary judgment should not have been entered because they have an arguable defence that:

• (a) their actions were protected either through the doctrine of defence of another, or by the application of the defence of necessity; and/or

• (b) relief should be withheld from the Crown on public policy grounds due to the principle ex turpi causa non oritur actio. Broadly speaking this means that a court may deny relief to a plaintiff whose cause of action is found upon illegal action.

4 In the High Court judgment Associate Judge Gendall found that none of the proposed defences was seriously arguable. That decision is now challenged on appeal.

5 For the purposes of the appeal the appellants applied under r 45 of the Court of Appeal (Civil) Rules 2005 for leave to adduce further evidence. This evidence is

set out in four affidavits about which we heard argument at the start of the hearing. We granted leave in respect of one of the affidavits, that of Ms von Dadelszen, but reserved our decision on the remaining affidavits. We will address the balance of the application once we have outlined the relevant background to this appeal

Background

6 The broad context for the events in question is not in dispute. The function of the GCSB Waihopai communications facility is the collection of signals intelligence. The appellants believe that this intelligence is provided to agencies in the United States of America, the United Kingdom, Canada and Australia pursuant to an information sharing agreement known as “UKUSA”. 3 They consider that this agreement facilitates military action against civilians in the course of overseas conflicts.

7 The dominant physical features of GCSB Waihopai are two 18-metre parabolic antennae, each of which is protected by an inflated cover called a radome. Each radome is surrounded by a security fence, and the whole of the GCSB Waihopai facility is enclosed by a double fence. Prominent signs are posted outside the facility declaring that access is limited to authorised personnel only.

8 On 30 April 2008, the appellants gained access to GCSB Waihopai by using bolt cutters to break through the two security fences. Using sickles and stanley knives, they made horizontal cuts in one of the radomes, causing it to deflate and collapse onto the antenna it was protecting. After they had finished, the appellants prayed and waited for the arrival of the police.

9 The damaged radome had to be removed immediately to avoid damage to the antenna. The total cost of replacing the radome and repairing the fences was in excess of $1.2 million.

10 Associate Judge Gendall identified the motivations of the appellants as follows: 4

• (a) an intention to disable GCSB Waihopai in order to stop it collecting information in a way they allege is illegal and which they claim supports wars overseas and which, in turn, allegedly leads to the deaths of thousands of innocent civilians;

• (b) a wish to expose what kind of antenna was being used in order to determine the type of information GCSB Waihopai was obtaining; and

• (c) a desire to draw attention to GCSB Waihopai, its alleged illegal activities and the claimed illegality of the Iraq war.

11 The appellants were charged with intentional damage and burglary. Following a jury trial in the District Court at Wellington in March 2010 they were acquitted of those charges. Their position at the criminal trial was that they had a claim of right to enter GCSB Waihopai and to damage the property in question.

12 The current civil proceeding was commenced in September 2010. The pleading was filed by the Crown on behalf of the GCSB as a department of State established by s 6 of the Government Communications Security Bureau Act 2003 (the GCSB Act). Ownership of the land and facilities at Waihopai was pleaded thus:

The Crown is the registered proprietor of the land situated in the Waihopai Valley, Marlborough, having the legal description Property Number 196744, Lot 1 DP 7291 Pt 1 and DP 7050 Pt 1, Valuation Roll Number 203112360000, and the owner of satellite communications facilities situated on that land (together referred to as “GCSB Waihopai”).

13 The ownership by GCSB of the land and facilities at Waihopai, and the right of the GCSB to exclusive possession thereof, is not in dispute. 5 Rather, the appeal concerns the availability of positive defences the appellants wish to advance in

answer to the respondent's claim in tort based on the ownership of GCSB Waihopai and the fixtures thereto

Assumptions made in the High Court and on appeal

Assumptions in the High Court

14 Associate Judge Gendall identified a number of assumptions that he was willing to make for the purposes of determining the summary judgment application:

• [27] While these propositions are far from proven, the plaintiff has not sought, for present purposes, to provide any evidence refuting the following matters relating to Waihopai and its operations. Only for the purposes of this present summary judgment application, therefore (and not necessarily otherwise) I accept that:

  • (a) The GCSB is a relatively, secretive organisation and little information is available in the public arena as to what it does (Affidavit of Mr Locke, a Green Party member of the New Zealand Parliament);

  • (b) The only real public oversight of the GCSB, as disclosed by Mr Locke, is the Intelligence and Security Committee. That Committee is established each parliamentary term by a sessional order of Parliament. It is comprised of the Prime Minister and two of his appointees, along with the Leader of the Opposition and one of his appointees. It meets rarely, only once or twice a year, and does so in secret;

  • (c) Methods such as petitioning, or asking written or oral questions and even requests under the Official Information Act 1982 are said to be relatively futile for obtaining information with regard to the GCSB (affidavit of Mr Locke);

  • (d) The intelligence obtained by Waihopai generally arises from monitoring satellite communications in and around the Pacific Rim and East Asia (affidavit of Mr Hager);

  • (e) New Zealand is a member of UKUSA and Waihopai is an ECHELON station. Members of UKUSA share intelligence which they have gathered amongst themselves. ECHELON is the system by which members of UKUSA share information (affidavit of Mr Hager);

  • (f)...