Attorney-General v Leason HC Wellington CIV-2010-485-1940

[2011] NZHC 1053

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-1940

BETWEEN  THE ATTORNEY-GENERAL Plaintiff

ANDADRIAN JAMES LEASON First Defendant

ANDPETER REGINALD LEO MURNANE Second Defendant

ANDSAMUEL PETER FREDERICK LAND Third Defendant

Hearing:         8 August 2011

(Heard at Wellington)

Counsel:         A. Powell and B. Fenton - Counsel for Plaintiff

M. Knowles and D. Vincent - Counsel for First Defendant
A. Shaw and T. Cochrane - Counsel for Second and Third Defendants

Judgment:      31 August 2011 at 4:00 PM

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

This judgment was delivered by Associate Judge Gendall on 31 August 2011 at 4.00 pm under r 11.5 of the High Court Rules.

Solicitors:           Crown Law, Solicitors, PO Box 2858, Wellington Thomas Dewar, Solicitors, PO Box 31240, Lower Hutt Kensington Swan, Solicitors, PO Box 10246, Wellington 6143

THE ATTORNEY-GENERAL V AJ LEASON HC WN CIV-2010-485-1940 31 August 2011

Introduction

[1]      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).

[2]      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.

[3]      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.

[4]      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

1  R v Murnane (Ruling [8]) DC Wellington CRI-2008-006-932, 16 March 2010.  In that ruling the Judge declined to leave defence of another and necessity to the jury.   See also the Judge‟s Memorandum issued on 22 March 2010 further clarifying his Honour‟s reasons for not leaving those defences to the jury.

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.

Background

[5]      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.

[6] 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.

[7]      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.

[8]      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.

[9]      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.

[10]     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.

[11]     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.

[12]     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.

Summary Judgment Principles

[13]     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.

[14]     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).

[15]     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

[16]     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.

2 [2008] NZCA 187, [2010] NZAR 307 at [26]; adopted more recently by the Court of Appeal in

Cockburn v CS Development No 2 Ltd [2010] NZCA 373, (2010) 24 NZTC 24,431 at [26].

3 Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 4.

4 [2008] NZSC 45, [2008] 3 NZLR 725 at [33].

5 Footnotes omitted.

[17]     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.

The Evidence

[18]     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).

(a)      Mr Wolfensohn is the Deputy Director, Corporate for the GCSB.  He verifies the allegations in the plaintiff‟s statement of claim and attests to the plaintiff‟s belief, and his own belief, that the defendants do not have any defence here as to liability.  He also describes the Waihopai facility, and outlines the process which has been undertaken here in removing and replacing the damaged radome.

(b)Mr Boyd-Wilson was a prosecutor who appeared as junior counsel for the Crown at the criminal trial of the three defendants.  He annexes the transcript from that trial, at which all three of the defendants gave evidence.

[19]     In  opposition,  the  defendants  rely  upon  affidavits  from  Mr  Leason  (20

December 2010), Ms Katherine Teresa Gun (23 February 2011), Mr Keith James Locke  (30 November  2010), Mr  Nicky Alfred  Hager  (21 December  2010),  Mr Robert  Leslie  Leonard  (17  December  2010),  Ms  Treasa  Moira  Dunworth  (20

December 2010) and Ms Katherine Rose Bromley (30 November 2010).

[20]     Mr  Leason‟s affidavit  describes  the  actions  that  he  and  the  other  two

defendants took on the morning of 30 April 2008.  As I see it, this does not conflict

in any material way with how those actions are described in the plaintiff‟s statement

6 Bank of New Zealand v Maas-Geesteranus (1991) 4 PRNZ 689 (HC) at 697.

of claim here.   He also describes the motivation that lay behind the defendants‟

actions.

[21]     Ms  Bromley‟s  affidavit  annexes  publicly  available  documents  that  are relevant to the defendants‟ assertion that Waihopai involves a land use that is not authorised under the Resource Management Act 1991 or the Public Works Act 1981.

[22]     Mr Locke, Mr Hager and Mr Leonard give evidence about the activities undertaken at Waihopai.  Ms Gun‟s evidence deals with the use to which intelligence gathered from such facilities is put.   As I see it, Ms Dunworth purports to give evidence about international law.

[23]     In the following paragraphs, I provide a brief summary of, what I consider to be, the relevant aspects of all that somewhat voluminous evidence which is before me.  Little, if any, was contested.

[24]     In this case, as I have noted, I was also provided with a transcript of the evidence  before  the  jury  in  the  associated  criminal  proceeding  against  the defendants.   From that transcript there seems to be a general acceptance that:

(a)     The  defendants  intentionally  damaged  the  radome  and  fencing  at

Waihopai which they knew was property of the GCSB;

(b)The defendants stated, in varying ways, that their actions were a protest and by damaging the radome they could expose and prevent harm to civilians in Iraq and Afghanistan.   There was no evidence, however, that such action could prevent an identified imminent peril or danger to an identifiable person or persons; and

(c)     The defendants stated that they thought that other legitimate protest would not be as effective and that direct action was required.

[25]     In addition to those facts, Mr Powell directed me to the evidence given by the defendants at their trial in the District Court that the date chosen for this event was not due to any urgency in the sense that the defendants thought that action was

needed without delay as people were dying every day.  Instead they appeared to be flexible as to the date of that action.7   Indeed, it was Fr Murnane‟s evidence that he steered the group toward 29 April as it is the feast day of “a woman called Catherine of Siena, who was a great protestor”.8

[26]     As I have noted, Mr Leason was the only one of the defendants to provide an affidavit  in  the  present  proceeding.    In  this  affidavit  he  deposes  that  he  was motivated in carrying out the actions at Waihopai by:

(a)    An intention to disable Waihopai in order to stop it illegally collecting information which 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 what sort of information Waihopai was obtaining; and

(c)     A desire to draw attention to Waihopai, its illegal activities and the illegality of the Iraq war.

[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

7 Fr Murnane at t183/30-184/5; Mr Leason at t100/30-101/5; and Mr Land at t234/8-20.

8 At t110/7-8.

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 Hagar);

(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 Hagar);

(f)     That intelligence obtained is shared with the United States of America and the

United Kingdom (affidavits of Messrs Locke, Leonard and Hagar);

(g)     That intelligence is used by the United States of America and the United Kingdom  in  directing  attacks  in  Iraq  and  Afghanistan  (affidavits  of  Mr Leonard and Mr Hagar);

(h)     Civilians  have  been  killed  in  Iraq  and  Afghanistan  (affidavit  of  Ms Dunsworth).  The affidavit of Ms Dunworth (and also that of Mr Hagar) sets out her opinion as to breaches of International Law and International Humanitarian Law involved in the conflict in Iraq.  I certainly do not consider it is appropriate for  me  on  the  present  summary judgment  application to accept that the Iraq war is or may be illegal, but I do accept that it is seriously arguable that some attacks there may have been in breach of International Law and/or International Humanitarian Law.

(i)     Mr Hagar at paragraph 99 of his affidavit records (and this is not challenged):

the GCSB has been involved in targeting in Afghanistan and has supported some of the most secret and controversial USA operations.  It is almost certain that it has contributed to illegal activities, including detentions, assassinations and targeting of bombings.

Counsel’s Arguments

[28]     I  turn  now  to  the  fundamental  issue  before  the  Court  on  the  present application. It raises the question of whether the plaintiff can satisfy the Court with respect to the sole cause of action in his statement of claim that the defendants have no defence as to liability so that the only issue that goes to trial in this proceeding, if it cannot be resolved earlier, is the amount of damages that the plaintiff is entitled to.

[29]     The statement  of  claim  pleads  a single  cause  of action  against  all  three defendants of trespass.

[30]     In other contexts, the connection between the damaged radome and fencing and the land at Waihopai might itself draw the Court‟s attention to the question of whether the damaged items are fixtures or chattels.9    Thus, the distinction between the torts of trespass to land and trespass to goods might arise, but in my view that is irrelevant in the present case because:

(a)      The defendants are, subject to any positive defence available to them, liable for damage done to the radome and fencing in either event; and

(b)The present action is brought against tortfeasors by the Crown as plaintiff both as occupier of the land and buildings and owner of the chattels that are situated in and upon it.

[31]     The constituent elements of a cause of action in trespass to land require:

(a)      The plaintiff to be the occupier of the land on which the trespass occurs; and

(b)The defendants to have consciously and directly interfered with the land, including any buildings or structures fixed to the land.

9 Lockwood Buildings Ltd v Tust Bank Canterbury Ltd [1995] 1 NZLR 22.

[32]     The constituent elements of the tort of trespass to goods are: (a)        The plaintiff must have had possession of goods;10

(b)There must have been a direct physical interference with the goods by the defendant;11

(c)      If the goods have not been taken away or used, it may be necessary for damage to be caused;12 and

(d)       The trespass must have been committed intentionally.13

[33]     The  pleaded  facts  in  the  statement  of  claim  allege,  and  the  uncontested evidence before the Court establishes in this case that:

(a)      The Crown is the owner and, through the GCSB, the occupier of the land at Waihopai (including the two parabolic antennae) to which unauthorised access was prohibited;

(b)On 30 April 2008 the three defendants entered Waihopai without authority by cutting through perimeter fences; and

(c)      While  at  Waihopai,  the  three  defendants,  pursuing  a  common purpose, intentionally damaged one of the radomes by cutting it.

[34]     To support the pleaded facts, the plaintiff relies upon the general verification of  the  statement  of  claim  by Mr  Wolfensohn  in  his  affidavit,  for  proof  of  the

10 Penfolds Wines Pty Ltd v Elliot (1946) 74 CLR 204.

11  The ways in which that can occur are described in Stephen Todd (ed.) The Law of Torts in New Zealand (4th ed, Brookers, Wellington, 2005) at 11.2.2. The damage caused in the present case clearly constitutes physical interference.

12  Everitt v Martin [1953] NZLR 298 (SC) at 303; cf. Leitch & Co v Leydon [1931] AC 90 (HL) at

106.   The point, although unsettled, does not arise in the present case as physical damage is not disputed.

13 In The Law of Torts in New Zealand, the point is described as not settled, but the torts that deal with interference with chattels, and which are actionable per se, generally require that the defendant‟s act be intended. There is no controversy about that in the present case.

ownership and occupation of Waihopai, and of the radome and fencing that were damaged.

[35]   Other than the defendants themselves, there were no witnesses to the defendants‟ acts  of  trespass.    The  plaintiff  relies  upon  statements  made  by the defendants during the course of their District Court criminal trial as set out in the transcript of their evidence which is before the Court.   In addition, Mr Leason‟s affidavit in opposition to the present summary judgment application provides further evidence and a direct acknowledgement of the acts of trespass on the part of all three defendants.

[36]     It is inescapable that the defendants have no defence here based upon a denial of the elements of the plaintiff‟s cause of action, and nor do they assert one.  Instead, they base their opposition to summary judgment on:

(a)      Positive defences that their actions are protected either through the doctrine of defence of another, or by the application of the defence of necessity; and/or

(b)An assertion that any relief should be withheld from the Crown on public policy grounds due to the maxim ex turpi causa non oritur actio.

Counsels’ Submissions

[37]     I turn now to consider counsels‟ detailed arguments on these three defences. I thank counsel for their full and considered submissions.  In this judgment I cannot hope to set them out in full, but I will respectfully attempt to summarise the salient aspects from each.

[38]     As  recorded  above,  the  defendants  accept  that  they  caused  the  damage alleged.   In their defence, however, Mr Knowles  in his submissions for all the defendants contended that they were justified in their actions in reliance on the defences of defence of another and/or necessity.  Mr Shaw, again for all defendants, submitted that the plaintiff here could not claim for damage suffered due to the maxim ex turpi causa non oritur actio.

[39]     Mr Knowles‟ first argued defence is that under s 48 of the Crimes Act 1961, a person will be justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.  Mr Knowles noted that as s 2 of the Crimes Act 1961 defines “justified” as:

in relation to any person, means not guilty of an offence and not liable to any civil proceeding:

and if self defence/defence of another operates here, the defendants cannot be held liable for the damage caused to Waihopai.  Mr Knowles suggested that the “force” required under the Crimes Act 1961 is any strength exerted on an object, such as damage to property.   In support, Mr Knowles relied on R v Terewi,14  Sheehan v Police15 and Jenkins v Police.16   Mr Powell, for the Crown however argued that there is a binding decision of the Court of Appeal to the contrary: R v Hutchinson,17 which requires the application of physical force to be on a person.   In response to that position  Mr  Knowles  acknowledged  that  R  v  Hutchinson  did  not  support  the

defendants‟ position, but he urged me to follow the decision in Sheehan v Police in the present case.   That is, he maintained, because the distinction between force against the person and force against property in the context of the defence of another has been described elsewhere as “hard to understand”.18    Or, in the alternative, Mr Knowles  urged  me  to  limit  the  application  of  R  v  Hutchinson  to  the  criminal statutory defence and to take a more broad approach in considering the defence of self-defence/defence of another at common law.   In support of that position, Mr Knowles relied on a statement of the authors of The Law of Torts in New Zealand.19

Accordingly, Mr Knowles urged me to decline summary judgment on the basis that

14 (1985) 1 CRNZ 623 (CA).

15 [1994] 3 NZLR 592 (HC).

16 (1986) 2 CRNZ 196 (HC).

17 [2004] NZAR 303 (CA).

18  Director of Public Prosecutions v Bayer [2003] EWHC 2567 (Admin), [2004] 1 WLR 2856; R v
Burgess [2005] NSWCCA 52, (2005) 152 A Crim R 100, Robert Lithgow [2003] NZLJ 285.

19  Stephen Todd (ed) The Law of Torts in New Zealand (5th  ed, Brookers, Wellington, 2009) at
[12.7.01].

the law here is not clear and the present application for summary judgment is not the appropriate forum for addressing the proper state of the law.

[40]    Mr Knowles then turned to consider the second defence argued by the defendants, that of necessity.   On this, he contended that the cases which deny defendants the defence of necessity where questions of politics are at issue, such as that in R v Jones (Margaret),20  can be distinguished from the present case.   Mr Knowles submitted that the defendants do not disagree with the defined policy of the New  Zealand  Government,  that  being that  the  Government  opposes  torture and

crimes against humanity and is not at war in Iraq.  Rather, the defendants took issue with the supply of intelligence to the United States of America without vetting by domestic authorities.  In that sense Mr Knowles argued that the defendants are, what Lord Hoffman described in R v Jones (Margaret) as, “lonely [individuals] resisting the acts of a hostile and alien state to which [they owed] no loyalty” such that their

actions here are akin to a legitimate act against the Nazi war machine in Europe.21

Putting the defendants‟ conduct in that light, Mr Knowles further sought to align their actions with the defence of necessity as he contended that there were no other lawful means of redress here and that there was a clear nexus between the actions of the defendants and the harm sought to be mitigated.   In support of his argument regarding this nexus, Mr Knowles cited the New South Wales Court of Appeal

decision  in  R  v  Burgess.22    Mr  Knowles  further  sought  to  clarify  that  it  is

“imminence” which is required within that nexus, not “immediacy”.  Therefore, the temporal proximity required is contextual.

[41]     In response, Mr Powell submitted that the defence of necessity only allows for the true emergency, where there is imminent peril to human safety which overwhelms the desire of a reasonable person to respect property and compels a person to act.  In the present case, Mr Powell contended that the defence of necessity

is not reasonably arguable.  He stated that the defendants‟ act was one of protest, not

20 [2006] UKHL 16, [2007] 1 AC 136.

21 See below at [63] for that statement by Lord Hoffman.

22 [2005] NSWCCA 52, (2005) 152 A Crim R 100.

of rescue.  That is clear he says from the fact that the defendants did not consider there to be any individual in any immediate peril and that the date selected by the defendants was entirely flexible.

[42]     As noted above, the third defence was dealt with by Mr Shaw but on behalf of all defendants.  That defence relies on the maxim ex turpi causa non oritur actio (“no right of action arises from a shameful cause”23).  In sum, the maxim means that a wholly undeserving plaintiff may not obtain relief.  Mr Shaw‟s primary submission was that the defence of ex turpi causa advanced here is inherently unsuitable for resolution on summary judgment.  He argued that that is because an evaluation as to

whether  a  particular  crime  has  crossed  the  threshold  of  seriousness  to  bar  the

plaintiff‟s claim may involve an investigation of all the circumstances of the case.24

Mr Shaw submitted three main ways in which the GCSB‟s conduct, with regard to

Waihopai, is wrongful:

a.      Waihopai does not adhere to administrative requirements such as the Building

Act 2004, Resource Managment Act 1991 and the Defence Act 1990;

b.The operation of Waihopai is wrongful due to its role in providing intelligence to the United States of America; and

c.The  use  of  that  intelligence  by  the  United  States  of  America  implicates Waihopai, and the GCSB, in the wrongful conduct of the United States of America.

[43]     With regard to the first, Mr Shaw submitted that it is unclear how the parcel of land on which Waihopai is situated was transferred to the Crown.  If it was under the Public Works Act 1981, he claims it was acquired unlawfully.  That is because it was  not  acquired  for  its  stated  purpose:  “defence  purposes”.     Further,  no authorisation for the construction of any of the buildings or antennae at Waihopai

was authorised by the local council through the building consent process or by way

23  Stephen Todd (ed) The Law of Torts in New Zealand (5th  ed, Brookers, Wellington, 2009) at

[21.7.01].

24 S-T (Formerly J) v J [1998] Fam 103 at 156; ABB Ltd v New Zealand Insulators Ltd (No 2) (2007)
11 TCLR 978 (HC) at [89]; Sime v Bale HC Whangarei CP34/95, 15 February 1996 at 7-8.

of its Minutes.  Further, Mr Shaw submitted, the use to which the land is being put (interception of satellite communications) is not an authorised used of the land on which Waihopai is situated.   And also, while there is a Ministerial exemption certificate issued under s 4(2) of the Resource Management Act 1991 on the relevant Waihopai land file, it is unclear what parcel of land the certificate applies to.

[44]     With regard to the second and third, Mr Shaw submitted three categories of wrongful conduct in which intelligence obtained from Waihopai has been used for unlawful means:

a.     Wrongful conduct carried out by occupation forces in the Middle East generally and Afghanistan specifically;

b.    Wrongful conduct specifically relating to the war in Iraq; and

c.     Wrongful conduct in the Pacific that is contrary to New Zealand‟s  national

interests in this region.

[45]     Mr Shaw directed me to numerous laws, both domestic and international, which  he  contended  have  been  breached  by those  three  categories  of  wrongful conduct.  With regard to domestic law, Mr Shaw alleged that the GCSB operates in breach of the Government Communications Security Bureau Act 2003 and the New Zealand Bill of Rights Act 1990.    Concerning international law, Mr Shaw alleged breaches of customary international law, international humanitarian law and international human rights law.   In his submission Mr Shaw suggested these allegations will be strengthened once discovery is ordered in a substantive trial.

[46]     As to the point that the defendants intentionally destroyed Crown property, Mr Shaw submitted that this is of no moment here.  The conduct of the defendants is not at issue.   The focus of the principle is on the plaintiff.   The actions of the defendant  are  only  relevant  to  the  question  of  whether  the  plaintiff‟s wrongful actions are connected with the wrongdoing before the Court.

[47]     In  response,  Mr  Powell  argued  that  the  defendants  cannot  establish  a connection between the illegalities which they assert Waihopai has been engaged in and the actions of the defendants in damaging the radome.   Putting his case at its most elementary, Mr Powell submitted that this defence does not provide a defence

to a trespasser who, because he takes exception to the actions of another, elects to destroy  that  person‟s property.    Mr  Shaw  rejoined,  saying  Brown  v  Dunsmuir involved just that - a trespassing defendant.25

[48]     Mr Powell further argued that claims involving property rights, such as the present, are conceptually distinct from claims based on other kinds of asserted loss.26

Mr Shaw, in response endeavoured to argue that the Court of Appeal in R v Collis27

and the House of Lords in Grey v Thames Trains Ltd28 contradict that proposition.

[49]     Mr Powell‟s final submission was that first, and in any event, the legality of a decision by the executive arm of government to go to war is beyond the capacity of the courts,29 secondly, the courts should not endorse destructive conduct of this sort by  refusing  effective  relief  to  the  plaintiff  and  thirdly,  that  the  defendants‟ allegations here rely on impugning the conduct of other countries and that conduct is certainly not appropriate to be considered in this forum.

My Decision

Self-defence/Defence of Another

[50]     I turn first to consider the defence of self-defence/defence of another.  There are two ways in which self-defence/defence of another may be established here: under s 48 of the Crimes Act 1961 or under the common law.  In New Zealand under s 48, a person is justified in using in the defence (of another) such force, as in the circumstances as that person believes them to be, it is reasonable to use.

[51]     As to these defences under s 48, I accept the submission for the defendants that the defences must apply in civil proceedings. That is clear from the definition of

25 [1994] 3 NZLR 485 (HC).

26 Bowmakers Ltd v Barnet Instruments Ltd [1945] KB 65 (CA); Tinsley v Milligan [1994] 1 AC 340 (H.L).

27 [1990] 2 NZLR 287 (CA) at 493.

28 [2009] UKHL 33, [2009] 1 AC 1339.

29 R v Jones (Margaret) [2006] UKHL 16, [2007] 1 AC 136 at [65] and [67].

“justified” under s 2 of the Crimes Act.30   However, I am not persuaded here by Mr Knowles‟ arguments that I should decline to apply the Court of Appeal decision in R v Hutchinson in the present case.31

[52]     In  R  v  Hutchinson  the appellant was a protestor charged with wilful destruction. He had broken into a shed and contaminated 1080 poison bait, used for possum control. The Department of Conservation had previously been granted a resource consent to drop baits from a helicopter into a local forest. The Judge failed to leave the defences of necessity and defence of another to the jury. (I will return later to the issue surrounding the defence of necessity in that case). As to the issue concerning defence of another, Heath J stated for the Court at [71]:

While the term, “force” has been held to include the threat of violence we are not aware of any case in which the term “force” has been held to include breaking and entering premises and destruction of property. In our view it is inapt to speak of breaking and entering premises and destroying property as “force” for the purposes of a s 48 defence based on defence of another. The case cited by Mr Zindel for the contrary proposition (Sheehan v Police) is not in point. That case dealt with a defence of “lawful justification or excuse or colour of right” in response to a charge of intentional damage to property brought under s 11(1)(a) of the Summary Offences Act

1981. See also s 11(2) of that Act.

[53]     The  defendants  may  find  some  support  for  their  opposing  views  in  the decision of the High Court of England and Wales in Director of Public Prosecutions v Bayer.  In that case, the High Court was “prepared to assume” that the defence of property was available:32

…if [the defendants] prevented the damage by tying themselves to the tractors rather than by attacking the tractor drivers.

[54]     Of course, if force is not required in relation to defence of property, it would make a nonsense to require it in defence of another person.  Although, I also note

that the decision in Bayer is not without criticism.33

30  Stephen Todd (ed) The Law of Torts in New Zealand (5th  ed, Brookers, Wellington, 2009) at

[4.6.01(1)].

31 [2004] NZAR 303 (CA).

32 [2003] EWHC 2567 (Admin), [2004] 1 WLR 2856 at [25].

33 Dilys Tausz “Aggravated Trespass” [2004] Crim LR 663 at 665.

[55]     Nevertheless, I not only consider myself to be bound by the decision of the Court of Appeal in Hutchinson, and so I cannot follow any High Court authority to the contrary, but I am also satisfied for three reasons that it is correct.  Section 48 requires the application of force.34     First, the Court of Appeal‟s decision in R v Terewi does not contradict the decision in Hutchison.35    Terewi stands for the proposition that a threat of the use of force may also be self-defence.  A threat of an

assault is therefore consistent with an actual assault.

[56]     Secondly, it has been established that where there is a failure to use force for the purpose of defending, for example where an accused was charged with carrying around an offensive weapon36  or writing a protest message with felt tip pen on a

building,37 the defence will not apply.

[57]     Thirdly, and most fundamentally in New Zealand, the heading in the Crimes Act 1961 to the subpart under which s 48 sits is Defence against assault.  Section 5 of the Interpretation Act 1999 provides: (emphasis added)

5           Ascertaining meaning of legislation

(1)      The meaning of an enactment must be ascertained from its text and in the light of its purpose.

(2)      The matters that may be considered in ascertaining the meaning of an enactment include the indications provided in the enactment.

(3)      Examples of those indications are preambles, the analysis, a table of contents, headings to Parts and sections, marginal notes, diagrams, graphics, examples and explanatory material, and the organisation and format of the enactment.

34   AP  Simester  and  WJ  Brookbanks  Principles  of  Criminal  Law  (3rd   ed,  Brookers,  2007)  at

[15.1.3(3)].

35 (1985) 1 CRNZ 623.

36 R v Busby CA211/01, 26 September 2001.

37 Blake v Director of Public Prosecutions [1993] Crim LR 586.

[58]     While the position in England may well be otherwise, although I note that it is far from clear,38  I consider that the heading to the subpart which contains s 48 provides a clear answer that physical force is required in New Zealand.

[59]     Here, there is not the requisite use of force.  Of course, damage was caused. But no force was exerted.  This case involves precisely the situation referred to by Heath J in R v Hutchison noted at [52] above.  Even if I am wrong on that point, I do not consider self-defence under s 48 to be reasonably arguably in the present case for the following additional reasons.

[60]     The direction generally given to juries, in relation to self-defence (and thus defence of another), is along the lines of that suggested by Tipping J in Shortland v Police39 and summarised by the Court of Appeal in R v Li at [22] in this way:40

In summary, on this approach the jury is asked to consider first what the accused believed the circumstances to be, from his or her point of view. The second question is whether, bearing in mind that belief of the accused about what was happening, he or she was acting in self-defence (again considered from his or her point of view). The last question is whether, given that belief, the force used was actually reasonable.

[61]     I have set out above an outline of what I accept the state of the evidence to be on this summary judgment application.   Even if it is accepted that the defendants thought first, that petitions or any other attempts to protest or to obtain information from the GCSB would be ineffective, secondly, that civilians were dying in Iraq and Afghanistan due to the actions of the United States of America, United Kingdom (or New Zealand) combatants and thirdly, that those actions were informed by intelligence gathered at Waihopai, I am not satisfied that a reasonable person would, in those circumstances,  commit trespass and damage, what could reasonably be expected  to  be  and  indeed  the  defendants  must  have  known,  expensive  Crown

property.

38 Dilys Tausz “Aggravated Trespass” [2004] Crim LR 663 at 665, commenting on the decision in

Director of Public Prosecutions v Bayer.

39 HC Invercargill AP74/95, 23 April 1996.

40  CA140/00, 28 June 2000, most recently adopted by the Court of Appeal in Simpson v R [2010] NZCA 140 at [56].

[62]     I base that judgement also, at least in part, on the dicta of the House of Lords in R v Jones (Margaret).41    In that case, in not dissimilar circumstances to those in the  present  case,  the  defendants  were  charged  with  various  counts  of  criminal damage at an operational airbase.  The defendants argued that the United Kingdom‟s actions in preparing for, declaring and waging war in Iraq were unlawful acts which they were  justified  in  attempting  to  prevent.    At  [74]  Lord  Hoffman  set  out  a

statement made by two of the defendants which they appended to their printed case:

“By disrupting the loading of bombs onto aeroplanes and by interfering with the ability of the base to refuel the aircraft they were acting lawfully, reasonably and proportionately in  order  to  (i)  prevent armed  aircraft  from  operating from  RAF Fairford and (ii) in order to prevent domestic and international criminal offences from being committed. That the action they took was reasonable to protect persons and property in Iraq from injury and damage caused by criminal acts. That their action would at least in part prevent the commission of the crime of aggression. Their action would at least in part prevent invasion by armed forces of the aggressor or would at least in part prevent the attack by the airpower of the aggressor.”

[63]     At [75] his Lordship described that statement as:

a fair picture of what an observer from the United Kingdom would have thought of a somewhat  ineffectual  attempt  by  a  Second  World  War  résistante  to  sabotage  a German  airfield  in  occupied  France.    It  assumes  the  defendant  to  be  a  lonely individual resisting the acts of a hostile and alien state to which she owes no loyalty. But the state in this case was the defendant‟s own state, the state which protected and sustained her and to which she owed allegiance.  And the legal system which had to judge the reasonableness of her actions was that of the United Kingdom itself.

[64]     Lord Hoffman went on to note that a tight control of the use of force is necessary to prevent society from sliding into anarchy.42   And at [83]-[84] he said:

The right of the citizen to use force on his own initiative is even more circumscribed when he is not defending his own person or property but simply wishes to see the law enforced  in  the  interests  of  the  community  at  large.  The  law  will  not  tolerate vigilantes. If the citizen cannot get the courts to order the law enforcement authorities to act (compare R v Comr of Police of the Metropolis, Ex p Blackburn [1968] 2 QB

118) then he must use democratic methods to persuade the government or legislature to intervene.

Often the reason why the sovereign power will not intervene is because it takes the view that the threatened action is not a crime. In such a case too, the citizen is not entitled to take the law into his own hands. The rule of law requires that disputes over whether action is lawful should be resolved by the courts. If the citizen is dissatisfied with the law as laid down by the courts, he must campaign for Parliament to change it.

41 [2006] UKHL 16, [2006] 2 WLR 772.

My Lords, to legitimate the  use of force in such cases  would be to set a  most dangerous precedent. As Lord Prosser said in Lord Advocate's Reference (No 1 of

2000) 2001 JC 143, 160:

“What one is apparently talking about are people who have come to the view that their own opinions should prevail over those of others … They might of course be persons of otherwise blameless character and of indubitable intelligence. But they might not. It is not only the good or the bright or the balanced who  for  one  reason or  another  may feel  unable to  accept the ordinary role of a citizen in a democracy.”

A time of war is the extreme example of the dangers. Of course citizens are entitled, indeed required, to refuse to participate in war crimes. But if they are allowed to use force against military installations simply to give effect to their own honestly held view of the legality of what the armed forces of the Crown are doing, the Statute of Treason would become a dead letter.

In my opinion, therefore, the district judges would have been right to convict even if aggression had been a crime in domestic law. The apprehension, however honest, that such a crime was about to be committed could not have made it reasonable for the defendants to use force of any kind to obstruct military activities at Marchwood or Fairford.

[66]     Returning to the present case, for the s 48 defence of defence of another to apply, the use of force must be “necessary” in the circumstances that the defendants believed them to be.43   In the present case, no danger was imminent.  The defendants had no idea when another civilian death overseas may have been caused.  Further, even if the defendants thought that their actions might have some positive impact on the ground in Iraq or Afghanistan, they could not have known when, where or how

that impact might have occurred.  The reasonable approach, in a democratic nation, is not to destroy public property and to take steps leading toward anarchy, but to prepare and engage in reasoned debate.  Captivating the public‟s attention to bring about change through debate and freedom of expression, a freedom which democracies strive so hard to protect, without impinging on the property rights of others, is fundamental to the way of life in this country.   Self-help of the kind undertaken by the defendants in the present case, in a democracy, no matter how

genuine their beliefs might seem to be, cannot be reasonable.44

43 R (Bennett) v HM Coroner for Inner South London [2007] EWCA Civ 617.

44 See Hutchinson v Newbury Magistrates’ Court (2000) 122 ILR 499; R v Jones (Margaret) [2006] UKHL 16, [2007] 1 AC 136; Morrow, Geach and Thomas v Director of Public Prosecutions [1994] Crim LR 58; Blake v Director of Public Prosecutions [1993] Crim LR 586.

[67]     I now turn to consider self-defence/defence of another as a common law defence.   That defence is well settled.   A person will be justified in using force which is reasonable in the circumstances.  There is no subjective element.  There is no reason in principle why the test under the common law should be the same test as under s 48.45   As emphasised by Lord Scott of Foscote in Ashley v Chief Constable of Sussex Police as a general rule no-one should be punished for a crime that he or she did not intend to commit or be punished for the consequences of an honest mistake.46    But the function of the civil law is different.   It exists to identify and protect the rights including property rights that every person is entitled to assert against others.   Its job is a balancing act.47    So, an unreasonable belief, no matter how genuinely held, cannot be sufficient to establish self-defence or defence of another as a defence to a tortious claim.48

[68]     Even assuming that the common law defence of self-defence is available in the present case, I consider that it is not arguable that the defendants were reasonably justified here in acting in the way that they did.  I have concluded above that, even in the circumstances which were known to them, the defendants‟ actions on 30 April

2008  were  not  reasonably  necessary.    In  my  view,  the  defendants‟ belief  that puncturing only one of the two radome satellite coverings (without more) at Waihopai, a base monitoring communications in the Pacific and Asia which was not the only location potentially monitoring that area, could actually save lives is wholly unreasonable.  There are an infinite number of variables which would have to align in order for that logic to be true.  Thus, removing those subjective beliefs, I consider that that makes this case yet another step removed from a case where defence of

another could succeed.

45 Ashley v Chief Constable of Sussex Police [2008] UKHL 25, [2008] 1 AC 962 at [3], [17] and [53].

46 At [17].

47 At [18].

[69]     The defence of necessity is  a carefully-guarded  exception  to  the general principle  of  law  that  rights  of  property  are  respected.    It  allows  for  the  true emergency; where there is imminent peril to human safety that overwhelms the desire of a reasonable person to respect property and compels them to act.  It could be said that, by allowing this defence, the law cautiously aligns itself with common perceptions of justice and absolves the Good Samaritan.

[70]     The law in this country imputes an authority to enter private property in circumstances of necessity for the protection of human life.  It does not matter that there is a „keep out‟ notice or a locked gate.  Such entry is lawful whether by a police officer or a member of the public.

[71]     The  existence  of  this  defence  of  necessity  to  an  action  in  trespass  was recognised by Tipping J in Dehn v Attorney-General49 who described it in this way:

A person may enter the land or building of another in circumstances which would otherwise amount to a trespass if he believes in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order (1) to preserve human life, or (2) to prevent serious physical harm arising to the person of another, or (3) to render assistance to another after that other has suffered serious physical harm.

[72]     This analysis was approved by the Court of Appeal in R v Fraser50.

[73]     It cannot be questioned that it is logical for this defence to exist, but equally logical is the imperative to constrain the assertion of the defence in order for the law to ensure that property rights are not unreasonably abridged.   The common law achieves this largely by including as a component of the defence an “objective reasonableness” criterion.

[74]     As I have noted above, the notion of necessity is itself grounded generally in the principle that the normal legal consequences of a breach of the law should not be

visited upon a person whose will to obey the law, and to respect the rights of others,

49 [1988] 2 NZLR 564 (HC).

50 [2005] 2 NZLR 109 at [33].

was overwhelmed by an emergency.  The underlying rationale and the reason for the strict limits placed around the defence can be seen equally in both civil and criminal proceedings.

[75]     The  authors  of  Principles  of  Criminal  Law  discuss  the  two  varieties  of necessity in operation under the common law:51

The first variety of necessity, “necessity” properly so-called, is concerned with the avoidance of the greater harm or the pursuit of some greater good.   This is also sometimes known as “lesser-evils” necessity.   The second variety, duress of circumstances, concerns the difficulty of compliance with the law in emergencies.

[76]     The  difference,  in  short,  turns  on  whether  an  individual‟s  will  was overborne.52     Where a defendant‟s “will is not overborne and there is no crisis requiring an immediate response, but the defendant makes a considered and rational decision which involves deliberately committing what would usually be an offence, in order to prevent the future occurrence of a greater harm” the defence of necessity will need to be employed by a defendant in order to avoid culpability for his or her actions.53

[77]     While the defendants contend that the defence of “necessity” here avails them of liability, counsel appears to have merged the two varieties.  Notwithstanding that, I will consider both.

[78]     While  the  difference  between  the  two  species,  it  seems,  is  often  more academic than real, the test set out for each is different.  With regard to duress of

circumstances, four elements must be established:54

51  AP Simester and WJ Brookbanks Principles of Criminal Law (3rd  ed, Brookers, 2007) at [13.1] (emphasis in original); see the comments of the Court in R v Hutchinson at [33]; and those of the Law Commission in Some Criminal Defences with Particular Reference to Battered Defendants (NZLC R73, 2001) at [177].

52   Law Commission Some Criminal Defences with Particular Reference to Battered Defendants
(NZLC R73, 2001) at [177]; In re A (Chlidren) (Conjoined Twins: Surgical Separation [2001] Fam

147 (CA) at 236.

53  Law Commission in Some Criminal Defences with Particular Reference to Battered Defendants

(NZLC R73, 2001) at [177].

54 Kapi v MOT (1991) 8 CRNZ 49 (CA) at 57; summarised by the Court of Appeal in R v Hutchinson [2004] NZAR 303 at [34], the Court of Appeal stating that the fourth was “necessarily implicit” in the decision of the Court in Kapi.

i.      A genuine belief, formed on reasonable grounds, of imminent peril of death or serious injury;

ii.      Circumstances in which the accused has no realistic choice but to break the law;

iii.      A breach of the law proportionate to the peril involved; and

iv.      A nexus between the imminent peril of death or serious injury and the choice to respond to the threat by unlawful means.

[79]     While a genuine belief is required, the defence of duress of circumstances is only available “if from an objective standpoint the defendant can be said to be acting in order to avoid a threat of death or serious injury”.55     There is not an express requirement that a “really extraordinary emergency” be shown, but the absence of peril will be relevant to an assessment of the reasonableness and honesty of any belief.56

[80]     As for the temporal proximity required (“imminent” or “immediate”) the law is not entirely clear, as the Court of Appeal in R v Hutchinson declined to resolve the issue.57    In R v Abdul-Hussain the English Court of Appeal is reported as deciding (in a case where the appellants, who were Iraqi but lived in Sudan, were charged with hijacking a plane after they did so when they feared that they would be deported to Iraq from Sudan) that:58

[The peril must] operate on the mind of the defendant at the time he committed the act so as to overbear his will, but the execution of the threat need not be immediately in prospect;

[81]     That is not, however, the last word on the matter.  The House of Lords in R v

Hasan (reported as R v Z) considered (a duress by threats case, but in the United

55 Kapi v MOT (1991) 8 CRNZ 49 (CA) at 54; R v Conway [1988] 3 All ER 1025 (CA) at 1030; Perka v R (1984) 14 CCC (3d) 385 at 406 (SCC)

56 AP Simester and WJ Brookbanks Principles of Criminal Law (3rd ed, Brookers, 2007) at [13.2.2].

57 At [54].

58 [1999] Crim LR 570.

Kingdom duress by threats, which is covered by s 24 of the Crimes Act in New Zealand, and duress of circumstances, the two species of duress, have developed along the same lines59), in obiter, that the execution of the threat must follow immediately or almost immediately.60    As to this, the House of Lords said at 428-

429:

It should however be made clear to juries that if the retribution threatened against the defendant or his family or a person for whom he reasonably feels responsible is not such as he reasonably expects to follow immediately or almost immediately on his failure to comply with the threat, there may be little if any room for doubt that he could have taken evasive action, whether by going to the police or in some other way, to avoid committing the crime with which he is charged.

[82]     I too decline to decide whether imminent is the same as immediate, because in my view, that distinction matters not in the present case.   The focus, from the above cases, appears to me to be on whether the defendant could have, objectively, acted in some other way to avoid committing the crime.  That approach, I consider,

accords with limb (ii) of the test outlined at [78] above.61 A key aspect to that

defence is, therefore, that the defence will not be available if a defendant has a realistic, law-abiding alternative available to him or her.62   In my view, the concepts of imminence and immediacy merely add to that objective analysis.

[83]     In  the  present  case,  I  am  satisfied  that  the  defendants‟ will  was  not  so overborne such that they could not undertake other, more democratic, means of aid. The defendants, by their own evidence, were not concerned as to the date on which they had to proceed with their activities at Waihopai.   That factor alone, in the present  case,  I  am  satisfied,  denies  them  the  use  of  the  defence  of  duress  of

circumstances.

59  R v Howe [1987] AC 417 (HL) at 429; AP Simester and WJ Brookbanks Principles of Criminal

Law (3rd ed, Brookers, 2007) at [13.2.1].

60 R v Z [2005] UKHL 22; [2005] 2 A.C. 467 at 495.

61  See also the opinion in AP Simester and WJ Brookbanks Principles of Criminal Law (3rd  ed, Brookers, 2007) at [13.2.3(2)]; see also R v Hutchinson [2004] NZAR 303 (CA) at [54].

62  See AP Simester and WJ Brookbanks Principles of Criminal Law (3rd  ed, Brookers, 2007) at
[13.2.4]; Cooke v Police HC Christchurch AP118/02, 7 November 2002.

[84]     What, if any, variety of the necessity defence is at issue here is necessity

“proper”.

[85] Whatever the position of the defence of necessity to charges under the Crimes Act 1961 may be,63 with regard to the tort of trespass, as I have noted at [71] above:64

A person may enter the land or building of another in circumstances which would otherwise amount to a trespass if he believes in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order (1) to preserve human life, or (2) to prevent serious physical harm arising to the person of another, or (3) to render assistance to another after that other has suffered serious physical harm.

[86]     While that means that the defence of necessity was open to the defendants in the present case in that they maintain that they purported to preserve human lives through their action, there must also be some sense of proportionality between the action and the evil avoided.65

[87]     Of course that means that the extent of necessity is, potentially, wider than where there is an emergency and an actual threat to life and limb.66   What is required for a successful defence of necessity is, in effect, the actions of a Good Samaritan.  I also take note of the warning of Edmond Davies LJ in the English Court of Appeal decision in Southwark London Borough Council v Williams at 474-475:67

But when and how far is the plea of necessity available to one who is prima facie guilty of tort? Well, one thing emerges with clarity from the decisions, and that is that the law regards with the deepest suspicion any remedies of self-help, and permits those remedies to be resorted to only in very special circumstances. The reason for such circumspection is clear necessity can very easily become simply a mask for anarchy. As far as my reading goes, it appears that all the cases where a plea of necessity has succeeded are cases which deal with an urgent situation of imminent peril:

63 See R v Hutchinson [2004] NZAR 303 (CA) at [43]-[50].

64 Dehn v Attorney-General [1988] 2 NZLR 564 (HC) at 580; adopted in R v Fraser [2005] 2 NZLR

109 (CA) at [33].

65 In re A (Chlidren) (Conjoined Twins: Surgical Separation [2001] Fam 147 (CA) at 240; Perka v R (1984) 13 DLR (4th) 1 (SCC) at 24; R v Latimer [2001] 1 SCR 3 (SCC) at [31]; AP Simester and WJ Brookbanks Principles of Criminal Law (3rd ed, Brookers, 2007) at [13.3.5(1)].

66 AP Simester and WJ Brookbanks Principles of Criminal Law (3rd ed, Brookers, 2007) at [13.1].

67 [1971] 2 WLR 467 (CA) at 474-475 (emphasis added).

[88]     In Southwark London Borough Council v Williams the Court held that the proper use of abandoned council properties is best determined by political decision making processes.  The Court noted that cases in which the defence has successfully been invoked are cases where the peril sought to be avoided by the defendants arises as an “emergency”.  As to the case before it, the Court considered that squatters, in urgent need of accommodation, could not claim a defence of necessity because the peril they found themselves in was “an obstinate and longstanding state of affairs”, rather than an immediate or emergent threat.

[89]     In that case, Lord Denning observed:68

Necessity would open a door which no man could shut.  It would not only be those in extreme need who would enter.  There would be others who would imagine that they were in need, or would invent a need, so as to gain entry.  Each man would say his need was greater than the next man‟s.  The plea would be an excuse for all sorts of wrongdoing.  So the courts must, for the sake of law and order, take a firm stand. They must refuse to admit the plea of necessity to the hungry and the homeless: and trust that their distress will be relieved by the charitable and the good.

[90]     In R v Martin (Colin),69  the Court of Appeal, although generally discussing duress of circumstances, emphasised the requirement that the claimed peril must be an objective danger, and that the accused must act proportionately:

... English law does, in extreme circumstances, recognise a defence of necessity. Most commonly the defence arises as duress, that is pressure on the accused‟s will from the wrongful threats or violence of another.  Equally however it can arise from other objective dangers threatening the accused or others.   Arising thus it is conveniently called „duress of circumstances.‟ ... Second, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury.

[91]     In  Canada,  the  scope  of  the  defence  was  considered,  at  length,  by  the Supreme Court in Perka v R.70     The Court, although again generally discussing duress of circumstances, emphasised the strict bounds of the defence stating:71

... for the defence of necessity to succeed, an accused‟s actions must be, in the relevant sense, an “involuntary” response to an imminent and overwhelming peril.

68 At 473.

69 R v Martin (Colin) [1989] 1 All ER 652 (CA) at 653 – 654 (per Simon Brown J).

70 Parka v R [1984] 2 SCR 232.

71 At 259-260 per Dickson LJ.

The defence cannot succeed if the response was disproportional to the peril or if it was  not  “involuntary” in  the  sense  that  the  emergency  was  not  “real”  or  not imminent or that there was a reasonable alternative response that was not illegal.

[92]     And again in New Zealand, our Court of Appeal in R v Hutchison expressed doubt as to whether the general common law defence of necessity had survived the codification  of  the  criminal  law  but,  in  considering  the  defence,  the  Court emphasised the notion of objective necessity.

[93]     Turning to the present case before me, I say at the outset that the evidence before the Court, as I see it, clearly demonstrates that this defence of necessity is not fairly arguable in any sense here.

[94]     The evidence from the defendants, including the affidavit of Mr Leason filed in this proceeding and the transcript of the evidence the defendants gave at their criminal trial, leads to the inevitable conclusion in my view that this was in reality an act of symbolic protest, not an act of rescue.  The defendants‟ references to saving innocent lives, where they occur, are expressed with the same symbolism as the act of protest itself.  There was no person in any immediate peril at the Waihopai base itself or in the immediate environs, and nor did any of the defendants suggest there was.

[95]     A significant feature of Mr Leason‟s affidavit as I read it is the absence of any assertion that there was any proper perception of immediate peril to any person, such as to render the defence of necessity worthy of consideration.

[96]     Mr  Leason  in  his  affidavit  at  [21]  states  that  the  defendants‟ action  at Waihopai was directed towards three ends.   The first, “to stop the base from conducting its illegal activities”; the second, to “cut through the secrecy that surround[s] the Waihopai base”; and the third, to “draw attention to the Waihopai spy base, its illegal activities and the illegality of the war in Iraq”.

[97]     Later in his affidavit at [48] and [49], Mr Leason describes the defendants‟ actions at Waihopai as a “protest”, and states the defendants‟ actions were performed when they were because “In my experience with protests, I considered the time had come for direct action to be taken”.  Interestingly, at the outset in his affidavit at [6] and [7] Mr Leason describes “finalising the plan for  our protest” on the night of 28

April 2010 and coming back to Picton on 29 April 2010 with a truck “that was going

to assist us in our protest” (emphasis added).

[98]     In  the  transcript  of  the  evidence  from  their  criminal  trial,  each  of  the defendants also addressed the subject of their motivation to enter Waihopai and damage the radome.  Although that motivation was at times expressed as a desire to save human life, it is clear the defendants were concerned with symbolism and a symbolic protest rather than with the prospect of effecting actual rescues.   The clearest  expression  of  the  defendants‟ symbolic  interpretation  of  their  roles  as

rescuers is found in Mr Leason‟s evidence about the “little girl” in Iraq.72

[99]     The defendants were not in the act of rescuing any person whose safety was in immediate peril.  As I have noted earlier, any suggestion that the defendants were rescuers is negated by what they said about the timing of their action.  Variously, the date chosen (30 April 2008) was described as being of no real consequence, or timed to coincide with a date on the Christian calendar.  There can be no weighing of a path of lesser evils in my view when motivated by that sort of end.

[100]   I am satisfied that the defendants‟ collective purpose is accurately described in Mr Leason‟s affidavit.   This was an act of direct protest aimed at Waihopai, reflecting the defendants‟ frustration that other forms of protest had not brought the issues that concerned them sufficiently to the public‟s attention.

[101]   As I see it, the defendants‟ assertion of this defence is, however, hopeless because it is an essential component of the defence that a defendant‟s belief in the necessity of his or her actions be objectively reasonable.   This reasonableness criterion is, as noted above, well-established.  In Monsanto Plc v Tilly, the Court of

Appeal of England and Wales observed that a defence of necessity to trespass will be

72 See, for example, Mr Leason‟s evidence that “I‟m going to do [the action at GCSB Waihopai] for a little girl called Ari whom I‟ve never met, I‟ve never seen (transcript at 59); “... it‟s not our job to smash up the base, it‟s our job to disable it and to save a life, because the saving of that life is like a symbolic light, is a little girl who‟s alive, and she is the, she‟s the hope” (transcript at 63).

unavailable unless “the danger is immediate and obvious and ... a reasonable person would conclude that there was no alternative to the act of trespass”.73

[102]   On the facts of the present case in my view there is no basis upon which the defendants can assert that any belief they had in the necessity of their actions at Waihopai – even if honestly and sincerely held – was objectively reasonable.

[103]   In addition, however deeply the defendants hold their belief that there is a connection between Waihopai, the GCSB and conflicts being engaged in overseas, the crucial ingredient for this necessity defence of immediate peril is missing here. Their assertion of this defence in reality is a transparent attempt to conceal what could only be described as a symbolic act of protest.

[104]   Further, and even if I am wrong in these conclusions, the actions of the defendants here in my view were entirely disproportionate to the benefit sought to be gained.  I accept that the defendants may have considered that they were at a loss as to what other democratic means of protest they could undertake, and I assume that they each had a genuine belief that what they were doing was undertaken in the hope that ultimately lives would be saved.  However, those steps which were taken here are not the steps of a reasonable person in a democratic nation attempting to save lives in countries afar.  The defendants had no idea whether the damage caused (and I repeat it was only damage to one of the two radome covers with no attempts made to disable the satellite dish it covered, the other radome and satellite dish or Waihopai‟s operational  workings)  would  achieve  the  (purported)  result  sought: prevention of New Zealand providing intelligence to the United States of America which would, in turn, hamper the United States of America‟s (or United Kingdom‟s) ability to carry out attacks which could cause a loss of life to civilians.   There is

simply no evidence to support that.

73  Monsanto Plc v Tilly [2000] Env LR 313 (EWCA).  The defendants in Monsanto were anti-GM campaigners, who pulled up GM crops. They were sued in trespass and for interfering with another‟s goods, and claimed their actions were defensible because they were necessary either to protect other people from the harm caused by GM crops, or in the public interest.

[105]   For all the reasons outlined above, I am satisfied that the defence of necessity which the defendants have purported to put forward is not in any sense reasonably arguable here.

Ex turpi causa

[106]   Ex turpi causa, which is often referred to simply as the “illegality defence”, may preclude a plaintiff from establishing a claim in tort if the plaintiff is, him or herself, guilty of illegal conduct that is connected to the claim.  An early expression of the maxim is Lord Mansfield CJ‟s statement, in Holman v Johnson, that “no court will lend its aid to a man who founds his cause of action upon an immoral or illegal

act”.74

[107]   I note at the outset that there is no New Zealand authority directly on point regarding this defence, ie an allegedly unlawful Crown plaintiff seeking recovery for damage subsequent to trespass.  The law regarding when a claimant will be barred from claiming against a defendant due to his or her own wrongful conduct was recently referred to by Lord Hoffman in Gray v Thames Trains Ltd in this way:75

The  maxim  ex  turpi  causa  expresses  not  so  much  a  principle  as  a  policy. Furthermore, that policy is not based upon a single justification but on a group of reasons, which vary in different situations.

[108] Lord Hoffman then went on to clarify the principles underpinning the availability of the defence in tort.   Lord Hoffmann (with whom Lords Phillip and Scott agreed) considered there are two public-policy bases for the ex turpi causa defence in tort.  The wider basis is that “you cannot recover compensation for loss which you have suffered in consequence of your own criminal act”.76   The rationale

for this policy, Lord Hoffmann stated, is that “it is offensive to public notions of the

74 (1775) 1 Cowp. 341 at 343.

75 [2009] UKHL 33, [2009] 1 AC 1339; but see the statement of Lord Goff in Tinsley v Milligan [1994] 1 AC 340 (HL) where his Lordship said that when the maxim should apply had long been determined by a system of rules rather than discretion.

76 Ibid at [29]. The narrow limb, which is unique to the kinds of facts that arose in Gray and has no apparent application beyond them, was stated by Lord Hoffmann to be that “You cannot recover for damage which flows directly from loss of liberty, a fine or other punishment lawfully imposed on you in consequence of your unlawful act” (at [29]).

fair distribution of resources that a claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct.77    Noting that the wide form of the defence may raise difficult questions of causation, Lord Hoffman concluded that a distinction must be drawn between “causing something and merely providing the occasion for someone else to cause something”, and went on to state at [54] that:

[54] ... It might be better to avoid metaphors like “inextricably linked” or “integral part” and to treat the question simply as one of causation.   Can one say that, although the damage would not have happened but for the tortious conduct of the defendant, it was caused by the criminal act of the claimant?  ... Or is the position that although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant?

[109]   It is clear also that the maxim does not require illegal conduct per se.78   What is required is reprehensible or grossly immoral conduct, in circumstances where it would not be proper to afford the claimant a remedy for his injury.79    As to when such conduct ought to be considered “turpis” has been the topic of much judicial consideration in the United Kingdom.   In Tinsley v Milligan the House of Lords settled the test in favour of a consideration as to whether the claimant needed to rely on its own turpitude in order to mount its claim.80    Prior to that, while there was conflicting English Court of Appeal authority on the point, the general approach appears to have been a consideration as to whether the claimant‟s claim would be an affront to the public conscience.81     As recorded above, Tinsley v Milligan is not, however, the House of Lord‟s final word on the matter.  In Gray v Thames Trains Ltd Lord Hoffman dismissed the approach adopted in Tinsley as being limited to

cases involving rights in property.82   In a subsequent decision in Stone & Rolls Ltd v

77 Ibid at [51].

78 Kirkham v Chief Constable of Greater Manchester Police [1990] 2 QB 283 (CA) at 291; Brown v Dunsmuir [1994] 3 NZLR 485 (HC); ABB v New Zealand Insulators Ltd (No 2) (2007) 11 TCLR 978 (HC) at [81].

79 Michael Jones (ed) Clerk & Lindsell on Torts (20th ed, Sweet & Maxwell, London, 2010) at [3-05].

80 [1994] 1 AC 340.

81 Thackwell v Barclays Bank plc [1986] 1 All ER 676.

82 [2009] UKHL 33, [2009] 1 AC 1339 (HL) at [30].

Moore Stephens, released a little over a month after the Committee‟s decision in Gray, the ratio appears to be,83  as Lord Walker noted (concurred with by Lord Brown):84

The present state of the law is as laid down by the majority of the House in Tinsley v

Milligan [1994] 1 AC 340.

[110]   In the Committee‟s decision in Stone & Rolls Lord Phillips, on the other hand, (while concurring with Lords Walker and Brown in result, differed as to the reasoning regarding ex turpi causa) noted at [25] (before setting out the statement of Lord Hoffman set out in this judgment above at [108]):

Although Tinsley v Milligan does not establish a general rule that if a claimant founds his claim on his own illegal conduct the defence of ex turpi causa will apply, earlier cases support this principle: Marles v Philip Trant & Sons Ltd [1954] 1 QB 29 and Archbolds (Freightage) Ltd v S Spanglett Ltd [1961] 1 QB 374. I do not believe, however, that it is right to proceed on the basis that the reliance test can automatically be applied as a rule of thumb. It is necessary to give consideration to the policy underlying ex turpi causa in order to decide whether this defence is bound to defeat S

& R‟s claim.

[111]   At [26] his Lordship continued:85

The policy underlying ex turpi causa was explained by Lord Mansfield CJ in 1775 in

Holman v Johnson 1 Cowp 341, 343:

“The  objection,  that  a  contract  is  immoral  or  illegal  as  between  plaintiff  and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake,  however,  that  the  objection  is  ever  allowed;  but  it  is  founded  in  general principles of policy, which the defendant has advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causâ, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis.”

83  See the comment of Briggs J in Lexi Holdings v DTZ Debenham Tie Leugn [2010] EWHC 2290 (Ch) at [12].

84 [2009] UKHL 39, [2009] 1 AC 1391 (HL).

85 Emphasis in original.

[112]   Returning to Gray, that case concerned a claim against Thames Trains for loss of earnings suffered while the claimant was detained in a hospital.  Mr Gray was so detained by court order following conviction for manslaughter on the ground of diminished responsibility.  Mr Gray argued that he committed the manslaughter due to PTSD suffered following his involvement in a train accident caused by the defendant‟s (admitted) negligence.   Lord Hoffman identified two forms of the ex

turpi causa rule of public policy:86

In its wider form, it is that you cannot recover compensation for loss which you have suffered in consequence of your own criminal act. In its narrower and more specific form, it is that you cannot recover for damage which flows from loss of liberty, a fine or other punishment lawfully imposed upon you in consequence of your own unlawful act. In such a case it is the law which, as a matter of penal policy, causes the damage and it would be inconsistent for the law to require you to be compensated for that damage.

[113]   The narrow form is of no concern to the present judgment.  As for the wider form, however, it is not justified (as the narrow is) by inconsistency between the criminal law and the civil.  His Lordship considered that the wider form has to be justified on the ground that it is:87

offensive to public notions of the fair distribution of resources that a claimant should be  compensated (usually  out  of  public  funds)  for  the  consequences of  his  own criminal conduct.

[114]   Lord Hoffman also noted, important for reasons set out below, that causation may become an issue in that wider form.  He then approved of the following:88

It is not sufficient if the criminal activity merely gives occasion for tortuous conduct of the defendant.

[115]   His Lordship went on to say at [54]:

It might be better to avoid metaphors like “inextricably linked” or “integral part” and to treat the question as simply one of causation. Can one say that, although the damage would not have happened but for the tortious conduct of the defendant, it was caused by the criminal act of the claimant? (Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218). Or is the position that although the damage

86 At [29]; followed recently in Griffin v UHY Hacker Young & Partners (A Firm) [2010] EWHC 146 (Ch).

87 At [51].

88 At [53], cited from Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218 (CA) at [70].

would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant? (Revill v Newbery [1996] QB 567).

[116]   Of course, as recognised in Gray, a consideration of whether a claimant can bring an action without reliance on its turpitude will not fit every case.   Further, reservation has been expressed as to the universality of Lord Hoffman‟s approach to causation.   In Lexi Holdings v DTZ Debenham Tie Leugn Briggs J commented at [24]:

I am not persuaded therefore, taking Lord Hoffmann's speech as a whole, that the causation test which he propounded in Gray provides a universally applicable test for resolving the nexus issue in connection with the ex turpi causa doctrine. In particular, I  am not  persuaded as  matters stand, although Mr  Marshall may in  due  course persuade the trial judge, that the causation approach is the only way of establishing the requisite nexus between the claim and the illegality, although no doubt it will usually be sufficient for that purpose.

[117]   It is clear though that there must be some connection.89   That represents as I see it in summary, the state of affairs in the United Kingdom.  I now turn to consider the state of the defence in New Zealand.

[118]   As to this, Mr Shaw urged me to follow a decision of this Court: Brown v Dunsmuir,  an  appeal  against  a decision  in  the  District  Court.90      In  that  case  a developer, while excavating the parcel of land which he owned, began excavating his neighbour‟s land at the boundary between the two properties.  The developer did not have any permit  to  be excavating his  property,  let  alone his neighbour‟s.   The neighbour entered the developer‟s property to place soil on the area which had been excavated as a protective measure in order to avoid subsidence.  Penlington J held that the District Court Judge was entitled to exercise his discretion to allow the

defence of ex turpi causa. At 491-492, his Honour found:

They did however contravene a bylaw and they did encroach on the respondent's land. The learned Judge found that there was a sufficiency of connection between the appellants' illegal conduct and the respondent's trespass. On one view the illegality could be  regarded as  a  minor transgression; but  that is  to  ignore its  actual and potential consequences. If the appellants had not acted illegally the probabilities are that there would have been no trespass. I agree with Mr Gotlieb that an ordinary citizen would be shocked if a landowner and developer could ignore the bylaws and illegally excavate on his own land and encroach on his neighbour's land and then

89  See for example Ellis v Counties Manukau District Health Board [2007] 1 NZLR 196 (HC) at

[173]; British Columbia v Zastowny [2008] 1 SCR 27 (SCC).

90 [1994] 3 NZLR 485.

obtain a judgment for trespass against that neighbour when the latter had placed some soil on the owner developer's land as a protective measure and when there was no proper fill available in any event. To grant relief in these circumstances would be to encourage unlawful conduct and to make a mockery of a local authority's right to control excavation work within its territory.

[119]   That case was cited with approval by Courtney J in ABB v New Zealand Insulators Ltd (No 2),91   Courtney J also noted that there is no statement by the Court of Appeal as to the circumstances in which the defence might apply.92    It appears that neither Courtney or Penlington JJ nor the learned District Court Judge who decided the first  instance decision  in  Brown  v Dunsmuir93   were referred  to  the decision of the Court of Appeal in R v Collis.94

[120]   R v Collis was a case stated to the Court of Appeal under s 380 of the Crimes Act 1961.  The accused was charged with possession of and supplying cannabis.  He admitted both, but was only convicted of the possession charge, he was dismissed due to a technicality on the other.  A court has a power under s 32(3) of the Misuse of Drugs Act 1975 to order forfeiture of money where money was received in the course of or consequent upon the offence with which the accused was convicted. However, in that case the accused was not convicted for the offence for which the money was connected.  The Crown sought to argue that the Court‟s discretion should not be exercised to have the money returned.

[121]   The majority, Casey and Hardie Boys JJ considered, following the summary provided by Kerr LJ in the English Court of Appeal‟s decision in Euro-Diam Ltd v Bathurst95   (which,  it  should  be  noted,  Wylie  J  in  dissent  in  Collis  as  well  as

Penlington and Courtney JJ, and William Young J in Bliss v Attorney General,96 also

adopted, not withstanding in Brown, Bliss97  and ABB the House of Lords had since

91 (2007) 11 TCLR 978 (HC) at [81].

92 At [80]; see also Laws of New Zealand Tort (online ed) at [60].

93 [1993] DCR 923 (DC).

94 [1990] 2 NZLR 287.

95 [1990] 1 QB 1 at 35-.37.

96 [2009] NZAR 672 (HC).

97 Bliss was decided on 6 June 2000.

released  its  decision  in  Tinsley v Milligan  effectively over turning  Eruo-Diam), that:98

The principle of public policy that the Courts will not assist in the recovery of money or property illegally obtained applies only where the criminal or illegal conduct has to be relied upon to establish the claim or where it appears that the goods are wanted to further an illegal purpose.  Here, Collis was able to assert a proprietary right to the money, even though derived from illegal conduct, and was not relying upon the Court to establish that right (see p 293 line 4, p 299 line 28).

[122]   Both Casey and Hardie Boys JJ cautioned against an approach where the answer to the application of the defence “lies in the conscience of the Court in the particular  case”.99    Hardie  Boys  J  was  particularly  reluctant  to  adopt  such  a subjective approach.

[123]   Casey J went on to note at 293 (Hardie Boys J also concluded with a similar discussion at 299-300) that there is an even more fundamental reason for ordering return of the money to the accused: to refuse to do so would be against the public interest as Parliament had confined the limits around which it would order forfeiture (ie under s 32 of the Misuse of Drugs Act 1976) and for the courts to broaden that boundary would lead to the erosion of “the even handed administration of justice under the law”.

[124]   While the position under Gray may be that the focus is whether conduct is “offensive to public notions of the fair distribution of resources”, that approach is not dissimilar to that adopted by Kerr LJ in Euro-Diam, a decision which the Court of Appeal has adopted in New Zealand.  Therefore, as far as that aspect is concerned, in my view, the decision in Gray should be taken to be an accurate statement of the law in New Zealand.  However, what, as I see it the Court of Appeal in Collis made clear is that that subjective test should not operate unchecked.   The summary of the

decision in Euro-Diam by Casey J is therefore relevant:100

where the grant of relief to the plaintiff would enable him to benefit from his criminal conduct, the ex turpi causa defence will fail if his claim is for the delivery up of his

98 As summarised in the headnote of the decision.

99 At 293 (Casey J). See also at 298 and 299 (Hardie Boys J).

100 At 293 (emphasis in original).

goods, or for damages for their wrongful conversion, and if he is able to assert a proprietary of possessory title to them, even if this is derived from an illegal contract. This, of course, repeats and confirms what was said in Bowmakers Ltd v Barnet Instruments Ltd; Gordon v Chief Commissioner of Metropolitan Police; Russell v Wilson (1923) 33 CLR 538 (another bookmaking case) and St John Shipping Corporation v Joseph Rank Ltd [1957] 1 QB 267, as well as in other cases mentioned by Kerr LJ.

[125]   Principle should,  therefore,  guide the court‟s subjective assessment  as  to whether the plaintiff‟s conduct is an affront to the public conscience.

[126]   As starkly highlighted by the three judgments in R v Collis, all of the tests discussed in the various decisions appear to be attempting to reach the same conclusion:  would  finding  for  the  plaintiff  undermine  the  integrity of  the  legal system.101

[127]   If  the  matter  was  without  higher  authority,  as  suggested  in  ABB  v  New Zealand Insulators, in my view, I might have been bound to accept the submission of the defendants  that  the decision  in  Brown  v  Dunsmuir  means  that  summary judgment should be declined here.  As it happens, however, I consider that there is sufficient guidance evident from the Court of Appeal‟s decision in R v Collis not to be so bound.  Although I do note that William Young J in Bliss v Attorney-General considered himself not to be bound where the issue in Bliss was whether a thief‟s claim for tortious interference of goods could be defeated by the defence of ex turpi

causa.102   Accordingly, from that outline of the law, in my view, the appropriate test,

stating the defendant‟s case at its highest in the present case, is as follows:

i.Is the plaintiff‟s conduct offensive to public notions of the fair distribution of resources that a claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct.

a.   If the plaintiff can assert its claim over property without recourse to illegality it will prima facie succeed.

b.   Is there a nexus between the unlawful act and the damage suffered?

101 See also Lexi Holdings v DTZ Debenham Tie Leugn [2010] EWHC 2290 (Ch) at [13]; and Hall v

Hebert (1993) 101 DLR (4th) 129 (SCC) at 165.

102 [2009] NZAR 672 (HC).

ii.Ultimately, will finding for the plaintiff undermine the integrity of the legal system?

[128]   Here, following my acknowledgment of the evidence above, although I by no means express a view, I accept for present purposes that the Crown is undertaking activities which may be considered unlawful.103    I do express a reservation at this stage, however, as to the ability of international “crimes” to be considered unlawful for the purpose of domestic law.104   I repeat again what is recorded above at [42] that Mr Shaw contends that GCSB‟s conduct is wrongful in so far as on the one hand, administrative breaches by Waihopai and on the other hand breaches of domestic and international law on the part of Waihopai (by its providing intelligence to the United States of America and others) have occurred.

[129]   Dealing first with the alleged administrative breaches, I accept that it might be arguable that the approach to a nexus may be more flexible than that put forward by Lord Hoffman in Gray.105     Nevertheless, as Judge LJ commented in Cross v Kirkby there are no outlaws under the law, “[h]owever abhorrent the crime, whatever the subsequent conviction, the protection of the law extends to the criminal who enjoys rights not only in theory but enforceable in practice”.106    There must be, in some sense, a link between the wrongdoing and the defendant‟s tortious breach.

[130]   I accept that knowledge of illegality is not necessarily required on the part of the defendants, for the focus is on the plaintiff‟s actions.107    However, it cannot be said in any sense here that the plaintiff‟s administrative breaches caused the damage.

Even on a broader interpretation, such as that taken by Penlington J in Brown v

103 Although, I express reservations as to whether such trifling conduct as in Brown v Dunsmuir can qualify, see Vellino v Chief Constable of the Greater Manchester Police [2001] EWCA Civ 1249, [2002] 1 WLR 218 at [70](3).

104 See the comments of the Committee in R v Jones (Margaret) [2006] UKHL 16, [2007] 1 AC 136; and the comments of Vicki McCall “International Crimes and Domestic Criminal Law in R v Jones [2006] 2 WLR 772” (2006) 12 Auckland UL Rev 204.

105 See for example the approach of Penlington J in Brown v Dunsmuir [1994] 3 NZLR 485 at 492.

106 Cross v Kirkby [2000] CA Transcript No 321, The Times, 5 April 2000 at [94].

107 Brown v Dunsmuir [1994] 3 NZLR 485.

Dunsmuir (recorded above at [118] where his Honour appears to focus on the “actual and potential consequences” of the plaintiff‟s unlawful action), I am not satisfied that the administrative illegalities provide a sufficient nexus to the plaintiff‟s damage. This fact distinguishes the present case from Brown v Dunsmuir.   There, the developer‟s unlawful excavation of the neighbours land led to the neighbour having to remedy the situation, fearing that subsidence would occur.   I consider that the present case is one where the alleged criminal activity merely gave an opportunity for  the  defendants  to  act.    Take,  for  example,  Lord  Hoffman‟s example  of  an illegally parked car in Gray at [53]. If a person was to crash into that car, unless of course the plaintiff was contributorily negligent by being parked dangerously, it could not be the case that the plaintiff was unable to claim for mere vandalism of her car. So too here, merely because the structures erected on the land may not be lawful, does not give another the right, in effect, to damage them. To find otherwise would give any neighbour the ability, with effective civil immunity, to damage any shed erected on a neighbour‟s land for which he may not have formal local authority

consent.  Here, as I see it, the alleged illegality is merely a part of the background.108

[131]   I turn now to consider the second aspect of this ex turpi causa defence, that being whether the damage caused by the defendants was causally linked with the other claimed unlawful conduct (the non-administrative breaches) on the part of the plaintiff.  While I note that the focus of this inquiry is on the plaintiff, it is helpful to note at the outset the defendants‟ contention that they would not have entered the Waihopai land had it not been for perceived unlawful conduct on the part of the plaintiff.  However, that is not the end of the inquiry.

[132]   Returning to the test set out above, the plaintiff‟s present claim for damages arises out of a trespass.  Illegality need not be pleaded.  The plaintiff has full legal, indefeasible title to the parcel of land on which Waihopai is situated.  Accordingly, prima facie, the defence cannot succeed.   That prima facie point must mean that strong policy reasons must be found in order to displace that position.  These might

arise  for  example  as  in  Brown  v  Dunsmuir,  where  the  neighbour  was  merely

108 See WVH Rogers Winfield & Jolowicz on Tort (18th ed, Sweet & Maxwell, London, 2010) at [25-

22].

attempting to protect his own land.   In other words, the law protects individuals‟ property rights which, at times, override otherwise legitimate policy concerns of the law of torts.109   That is clear from the fact that the courts will not allow retention by the  police  of  a  law  breaker‟s property  in  the  absence  of  a  statutory  power  to confiscate.110   I turn then to consider whether there are any considerations of public policy here which compel the court to dismiss the plaintiff‟s claim.111     For the reasons outlined below, I am satisfied that there are no such public policy justifications.  Even if I am wrong in concluding that the law will find the defence to

be prima facie negated in the circumstances outlined above, I am satisfied that the interests of public policy in this case are in fact so strongly against the defendants that the plaintiff would succeed in any event.   I reach that conclusion for several reasons.

[133]   First, while I am satisfied that this Court‟s decision in Brown v Dunsmuir was correct on its particular facts, the policy surrounding it is readily distinguishable from the facts of this case.  While I have acknowledged that the focus of the inquiry is on the plaintiff, one cannot help but look at the surrounding circumstances.112

That case was, in essence, a case about a neighbour protecting his own land.  The

illegality was discrete and interference with the plaintiff‟s land minimal.

[134]   Secondly, it is all but impossible for the defendants to argue as to the legality of actions of another state in the courts of this Country.  As Fuller CJ commented in

the United States Supreme Court in Underhill v Hernandez:113

109 Michael Jones (ed) Clerk & Lindsell on Torts (20th ed, Sweet & Maxwell, London, 2010) at [3-41].

110  R v Collis [1990] 2 NZLR 287; Webb v Chief Constable of Merseyside Police [2000] QB 427 (CA); Costello v Chief Constable of Derbyshire Constabulary [2001] EWCA Civ 381, [2001] 1 WLR

1437; Gough v Chief Constable of West Midlands [2004] EWCA Civ 206, The Times 4 March 2004.

111 Bowmakers Ltd v Barnet Instruments [1945] 1 KB 65 (CA) at 72.

112 Michael Jones (ed) Clerk & Lindsell on Torts (20th ed, Sweet & Maxwell, London, 2010) at [3-36]- [3.37].

113 (1897) 168 US 250 , 252; cited with approval in Buttes Gas & Oil Co v Hammer (No.3) [1982] A.C. 888 (HL) at 933, see also Fang v Jiang [2007] NZAR 420 (HC) at [62]-[64], Jones v Saudi Arabia [2006] UKHL 26; [2007] 1 A.C. 270.

Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.

[135]   Thirdly, following the course argued for by the defendants would render the offence of treason under s 73(c) of the Crimes Act 1961 a nullity in some situations.114   As Lord Bingham commented in R v Jones (Margaret):115

The  potential  and  readily  foreseeable  problems  which  might  arise  if  it  were permissible to impede military preparations or action by the existing government in this country on the ground of their unlawfulness would not end there. For a person so acting could, at least arguably, on facts more significant than those relied on here, be said to “be adherent to the King's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere” within the meaning of the Treason Act 1351 (25

Edw 3, Stat 5 c 2),116 or to commit the common law offence of sedition by exciting disaffection against the Government or the constitution. It has never been a defence to

such a charge that the Crown or the government had committed itself to an unjust or unlawful cause. It would be strange if the same conduct could be both a crime and a defence.

[136]   The illegality alleged here is inextricably intertwined with the decision of the executive arm of Government in this country to either engage in armed combat or to assist another state, in that state‟s sovereign decision to engage in armed combat.  As recorded in s 73(c) of the Crimes Act 1961, a state of war need not exist for treason to be committed.  I am not, for a moment, suggesting here that the defendants are guilty of treason in the instant case.  Moreover, if I was to accept that the defence of ex turpi causa was reasonably arguable on the facts of this case, it would follow that the Crown could never recover the cost of repairing any damage caused by a person against its armed forces, or any body involved with the armed forces, in a cause which that person considers is unjust.

[137]   I am therefore not satisfied that public policy is on the side of the defendants, even  assuming  that  all  of  the  breaches  by  the  plaintiff  of  both  domestic  and

international  law  could  be  established  here.     Indeed,  adopting  Bingham  LJ‟s

114 R v Jones (Margaret) [2006] UKHL 16, [2006] 2 WLR 772 at [85].

115 At [31].

116  Section 73(c) reads: “assists an enemy at war with New Zealand, or any armed forces against which New Zealand forces are engaged in hostilities, whether or not a state of war exists between New Zealand and any other country”

“pragmatic approach” in Saunders v Edwards,117  and seeing that “genuine wrongs are  righted,  so  long  as  the  court  does  not  thereby  promote  the  countenance  a nefarious object or bargain which it is bound to condemn”, I am satisfied that the defence should not succeed.   Here, this is a genuine wrong.   Damage has been incurred in an act of vigilante justice.   Further, the maxim must be applied as an instrument of public policy, and not in circumstances where it does not serve any public interest.118

[138]   There  is  no  dispute  the  plaintiff  was,  at  all  material  times,  entitled  to exclusive possesson of Waihopai and the radome.   There is no dispute that the defendants entered Waihopai and damaged the radome.  As I see it, ex turpi causa plainly does not provide a defence to a trespasser who, because he takes exception to the actions – legal or otherwise – of another person elects to destroy that person‟s property.

[139]   Further,  the  present  case  essentially  involves  a  claim  for  vindication  of property rights.   Claims involving property rights are conceptually distinct from claims based on other kinds of asserted loss.  In Bowmakers Ltd v Barnet Instrements Ltd, for example, (applied by the Court of Appeal in R v Collis) the plaintiffs sued for conversion of tools the defendants had hired from them pursuant to hire purchase agreements that did not comply with statutory regulations.   On the basis that the plaintiffs could establish their claim by relying solely on their title to the converted property, and without reliance on the illegal contracts, the Court of Appeal held the defendants could not rely on an ex turpi causa defence.

[140]   The plaintiff in this case is not attempting to profit from any wrong doing.  It is merely attempting to protect property rights.   Indeed, it appears clear that if by way of example a third party was to trespass onto the Waihopai base and take, say a computer, the plaintiff would have no issue in recovering that computer in an action

in tort.   And if that wrongly impounded chattel was subsequently damaged, the

117 [1987] 1 WLR 1116 (CA) at 1134, adopted by Judge LJ in Cross v Kirkby.

118  National Coal Board v England [1954] A.C. 403 (HL) at 419; Bakewell Management Ltd v

Brandwood [2004] UKHL 14, [2004] RTR 26 at [60.

plaintiff would have little issue suing for damages incurred.119    It cannot be in my view that damage to a fixture upon the Waihopai land should be treated any differently.

[141]   Accordingly,  I  do  not  consider  that  even  with  the  Court  being  further informed as to the matters which Mr Shaw alleged that it needs to know on a fuller investigation that it could become reasonably arguable that compensation ordered to the plaintiff here would undermine the integrity of the justice system.

Conclusion

[142]   In conclusion I note that aspects which emerge from the decisions in this area have generally regarded with deep suspicion any self-help remedies taken by protesting parties and the courts have specifically allowed those remedies to be resorted to only in very special circumstances.

[143]   With this in mind, as I see it the defendants‟ arguments face a final and insurmountable hurdle in that they collide with fundamental principle.   The defendants  here,  although  I accept  they were  motivated  by genuine beliefs, are effectively inviting the Court to authorise their general right of self-help in their activities at Waihopai.  At one level this might be seen simply as a mask for anarchy. The notion that the Court might exonerate vigilante action is highly problematic.  To take this approach as I see it would inevitably lead to unacceptable precedents being set in a range of areas.

[144]   Included as such precedents might be the following:

(a)       Fluoride causing cancer protestors might destroy a fluoridated city‟s

water supply with impunity.

(b)       Anti-abortionists    might    be    exonerated   after    burning    down   a

neighbour‟s house they suspect was operating as an abortion clinic on the basis they said it was to preserve the lives of unborn children.

119 See Bliss v Attorney-General [2009] NZAR 672.

(c)      Anti-war protestors‟ actions in destroying New Zealand defence force bases, equipment and material or any other New Zealand Government facility might also be exonerated.

(d)“Interested” neighbours might “torch” with impunity a neighbouring house/garage/shed on the basis of a suspicion that it was being operated as a drug producing “tinnie house”, and thus affecting the lives of neighbourhood children.

[145]   In a free and democratic society governed by the rule of law, the existence of which the citizens of this country are justifiably proud, such vigilante justice actions cannot be countenanced.   All citizens who live in this country, including the defendants, enjoy and have the privilege of its benefits on the basis that we all comply with its laws and the rule of law.  Legitimate protest is always protected, but it must be carried out within the proper legal framework.

[146]   With all these aspects in mind and for the reasons I have outlined above, I conclude that the plaintiff has clearly shown that the defendants have no arguable defence to the liability claim against them here.  The essential facts at issue in this case and the questions of law raised by the defendants are clear cut.  Those specific defences, for all the reasons outlined above, are not fairly arguable here.

[147]   The plaintiff‟s application for summary judgment as to liability therefore succeeds.  An order is now made that summary judgment as to liability only in this proceeding is entered against the first defendant, Adrian James Leason, the second defendant Peter Reginald Leo Murnane and the third defendant Samuel Peter Frederick Land in terms of the plaintiff‟s statement of claim.

[148]   As to costs, the plaintiff has succeeded in this application and is entitled to costs in the usual way.  The defendants are to pay costs on this application to the plaintiff  on  a  category  2B  basis  together  with  disbursements  as  fixed  by  the Registrar.

[149]   This proceeding is to be the subject of a call in the List at 10.00 am on 26

September 2011 to consider directions needed for the hearing as to quantum.

‘Associate Judge D.I. Gendall’