The Attorney-General v Aj Leason Hc Wn
| Jurisdiction | New Zealand |
| Judge | D.I. Gendall |
| Judgment Date | 31 August 2011 |
| Court | High Court |
| Docket Number | CIV-2010-485-1940 |
| Date | 31 August 2011 |
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2010-485-1940
A. Powell and B. Fenton for Plaintiff
M. Knowles and D. Vincent — Counsel for First Defendantf
A. Shaw and T. Cochrane — Counsel for Second and Third Defendants
JUDGMENT OF ASSOCIATE JUDGE D.I. Gendall
This is an application by the plaintiff, the Attorney-General on behalf of a department of the New Zealand Government, the Government Communications Security Bureau (the GCSB), for summary judgment as to liability only against the three defendants. In his statement of claim in this proceeding, the plaintiff seeks to recover over $1.2 million for damage caused by the three defendants, Adrian James Leason (Mr Leason), Peter Reginald Leo Murnane (Fr Murnane) and Samuel Patrick Land (Mr Land) to fencing and a satellite dome cover owned by the Crown on a property in the Waihopai Valley, Marlborough known as GCSB Waihopai (Waihopai).
Essentially the plaintiff's claim here is one for damage arising out of a trespass. The present claim follows criminal charges of burglary and intentional damage laid indictably against the defendants in the District Court. On those charges, the three were acquitted by a jury in March 2010. The only issue which the jurors had to consider was whether the defendants had a claim of right to enter Waihopai and damage the property in question. 1 In the present case before me, although trespass and damage are effectively admitted by all three defendants, the plaintiffs summary judgment application is opposed on the grounds that the defendants say they have arguable defences based upon necessity, self-defence/defence of another and public policy grounds.
I also say at the outset that, in my view, little turns on the verdict of the jury in the criminal case against the defendants. Section 2 of the Crimes Act 1961 defines claim of right as:
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.
That defence is limited to those offences in the Crimes Act 1961 and Summary Offences Act 1981 which provide for it. It does not provide a defence for
civil liability per se. Further, that defence is entirely subjective, that is it matters not whether the conduct of the defendants was objectively unreasonable. As will become apparent from this judgment, an assessment of the reasonableness of the defendants? conduct, in my view, alters the colour of their conduct markedly.Turning first to consider the background facts here, early on the morning of Wednesday 30 April 2008 at around 6.05 am, the three defendants broke into the grounds of the New Zealand Government owned installation, Waihopai and caused substantial damage to it.
Waihopai is fully fenced around its perimeter and contains two large parabolic satellite antennae, used by the GCSB for intercepting satellite communications across the world for the purpose of accumulating what is known as “signals intelligence”. It seems that the GCSB, which runs Waihopai, works with partner agencies in the United States of America, Australia, Canada and the United Kingdom under an arrangement known as UKUSA. (Although I note here a caveat to that statement with the comments I record at [27] below). The dominant features of Waihopai, visible from the road, are two large white spheres called radomes. These are inflated covers for the two large antennae. An inner security fence encloses these radomes. That fence was 2.2 metres in height topped with razor wire. Beyond that, Waihopai was surrounded by an inner and outer perimeter fence. The outer perimeter fence was also 2.2 metres high topped with razor wire. The inner perimeter fence was 3.05 metres high. On the side of the inner perimeter fence facing the outer perimeter fence there were rows of electric fence. Intruder detectors were mounted to monitor activity within the 4 metres between the inner and outer perimeter fences and Waihopai was monitored by CCTV cameras. Prominent signs were posted outside the facility declaring that access to Waihopai was limited to authorised personnel only.
The evidence before me suggests and it is not disputed by the plaintiff that the three defendants all share a genuine adherence to Christianity and in these beliefs, a concern for the civilian consequences of military action overseas. On their own evidence, each has participated in protest action against that military action and New Zealand's involvement in it. Significantly, the facility operated by the GCSB at Waihopai has become a major focus of their concerns.
At some time prior to April 2008, the defendants formed a plan to move their protests forward in a way that they and others have referred to as “direct action”. The plan, it seems, was to break into Waihopai under cover of darkness and attempt to disable one of the antennae there by puncturing the radome.
In the early hours of 30 April 2008 the defendants put their plan into effect. At around 6.05 am they gained access to Waihopai by cutting through the two security fences using bolt cutters and chaining shut the front gates so as to prevent entry by anyone who might try to stop them. An electric fence was also cut as was the inner perimeter fence protecting the radomes. Armed with sickles and stanley knives, Mr Land and Mr Leason then made horizontal cuts in one of the radomes, while Fr. Murnane built a small shrine inside the facility so that they could conduct a prayer after they were finished.
After they were finished, they removed their chain and lock from the front gates, rolled out various protest banners and waited for the arrival of the Police, to whom they immediately, and without resistance, surrendered.
When the radome was cut, it deflated and collapsed onto the antenna it was protecting. It had to be removed immediately to avoid damage to the antenna and was found to be beyond rapair. In order to protect the antenna from exposure to the elements and to conceal it from view, a new replacement radome had to be installed.
The cost of replacing the radome and repairing the fences is said to be over $1.2 million. Damages of this amount, although yet to be finally assessed, are sought by the plaintiff from the defendants.
The present application before the Court is one for summary judgment. On this, the plaintiff relies on r 12.2 High Court Rules which states in part:
12.2 Judgment When there is No Defence or Where No Cause of Action Can Succeed
(1) The Court may give judgment against a defendant if the plaintiff satisfies the Court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.
The principles relevant to summary judgment were summarised relatively recently by the Court of Appeal in Krukziener v Hanover Finance Ltd: 2
The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1; (1986) 1 PRNZ 183 (CA), at p 3; p 185. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331; [1979] 3 WLR 373 (PC), at p 341; p 381. In the end the Court's assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).
It is also accepted that where a defence is a clear-cut question of law and findings are not required on disputed facts, a court may decide the issue on summary judgment. 3
The defendants also urge me here to take a similar approach with respect to their defences in what are said to be developing areas of law to that adopted by Elias CJ and Anderson J in a strike-out application Couch v Attorney-General. 4 In that case, at [33] Elias CJ said: 5
It is inappropriate to strike out a claim summarily unless the court can be certain that it cannot succeed. The case must be “so certainly or clearly bad” that it should be precluded from going forward. Particular care is required in areas where the law is confused or developing.
I accept too that in appropriate cases, such an approach regarding defences based on developing areas of the law is appropriate in summary judgment applications. 6 Care needs to be taken to allow defences to be clarified and to develop in appropriate cases but this must, however, be balanced with the ability for a court to undertake a robust and realistic approach where the facts warrant it.
In support of the present application the plaintiff filed and relies upon affidavits from two witnesses: Mr Hugh Wolfensohn (sworn on 30 September 2010) and Mr Hugh Boyd-Wilson (sworn on 29 September 2010).
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(a) Mr...
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