Leason & Ors v The Attorney-General
COURT OF APPEAL OF NEW ZEALAND
ADRIAN JAMES LEASON, PETER REGINALD LEO MURNANE AND SAMUEL PETER FREDERICK LAND v THE ATTORNEY-GENERAL
(CA642/2011)  NZCA 509
This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at www.courtsofnz.govt.nz.
The Court of Appeal has dismissed an appeal by Mr Leason, Mr Murnane and Mr Land (the appellants) who, in April 2008, entered the GCSB Waihopai facility and damaged a satellite dome cover. They believed the operation of GCSB Waihopai was contributing to the second Iraq war and their protest was aimed at exposing this.
The Attorney-General, on behalf of GCSB, filed a proceeding in the High Court making a claim in trespass against the appellants for the cost of repairs to the facility. The High Court granted summary judgment against the appellants for liability in trespass but the amount of damages has not yet been determined. The appeal sought to overturn the liability finding.
The appellants accepted that they had no defence to the claim based on the elements of trespass to property. Rather they argued on appeal that summary judgment should not have been granted because they had an arguable defence that:
(a) their actions were protected either through the doctrine of defence of another (under s 48 of the Crimes Act) or by the application of the common law defence of necessity; and/or
(b) relief should be withheld from the Crown on public policy grounds due to the defence ex turpi causa. Speaking broadly this means that a court may deny relief to a plaintiff (here the GCSB) whose cause of action is founded upon illegal action.
The High Court found that none of the proposed defences was seriously arguable. Those findings have been upheld on appeal.
For the purpose of determining the summary judgment application the High Court made a number of factual assumptions favourable to the appellants. For example, the High Court assumed the correctness of an allegation that intelligence gathered by the GCSB Waihopai facility is used by the United States of America and the United Kingdom in directing attacks in Iraq and Afghanistan. On appeal the appellants went further and sought to extend the alleged features of illegality on the part of the GCSB. For example they claimed that the land on which the radome sits was acquired by the Crown in breach of the Public Works Act. It was said that the land was never intended to be used for its stated public works purpose, defence purposes and it had never been used for that or any other public works purpose. The Court of Appeal was prepared to make these and several other additional assumptions as contended for by the appellants. But this was only for the purpose of the appeal. Such allegations remain untested and unproven and should not be taken as matters of actual fact.
All of the claimed arguable defences were dismissed by the Court of Appeal. With respect to the defence of another, neither s 48 of the Crimes Act nor its common law equivalent assist the appellants. Section 48 provides a defence that is a strict exception to the rule that citizens cannot take the law into their own hands and use force in our society. Similarly the defence of necessity was not available. The appellants had no way of knowing whether any imminent or immediate peril existed and no way of knowing whether their actions in damaging the radome would impact on that supposed peril. In any event, the appellants could not demonstrate that their actions were proportionate to the damage caused.
With respect to the defence of ex turpi causa, the appellants did not have an arguable defence on this ground either. The GCSB claim for trespass to property was based on its ownership of the land and facilities at Waihopai which was not disputed by the appellants. Neither could the appellants succeed on the basis of any alleged illegality going beyond how the land was originally acquired, for example, concerns about the ongoing use of the land and facilities. There is strong support in case law that the defence of ex turpi causa is not available in the circumstances of this case.
Accordingly the appellants’ appeal has been dismissed and orders for costs made against the appellants.