Crown wins right to seek damages from Waihopai trio
SHANE COWLISHAW

The Crown has been awarded the right to pursue the three men who broke into the Waihopai Spy Base for damages.

Teacher Adrian Leason, Dominican friar Peter Murnane and farmer Sam Land are being chased by the Crown for $1,229,289.

The trio were found not guilty by a jury in April 2010 of burglary and wilful damage of the Government Communications Security Bureau base near Blenheim in 2008. They cut through electric fences and slashed one of two inflatable domes covering satellite dishes, deflating it.

But they used a "claim of right" defence, saying they were saving lives in Iraq by disrupting satellite transmissions.

The Crown lodged an application that the trio be held liable for the damage in the High Court at Wellington earlier this month.

In his decision, Associate Judge David Gendall said the trio's arguments faced an "insurmountable hurdle" as they were 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."

These precedents could include situations such as fluoride causing cancer protesters destroying a city's water supply with impunity or anti-war protesters destroying New Zealand defence force bases, he said.

Media release: Adrian Leason
1 September 2011

High Court associate Judge David Gendall delivered his summary judgement ruling yesterday in relation to the Crown Civil suit of the three Waihopai Christian activists. In a 15 page decision Judge Gendall concluded that the defences raised by the three peacemakers fails to make the threshold for an arguable case and has awarded damages against the three men pre-emptively without allowing the case to proceed to a trial.

In contrast, after eight days of evidence at the activists' criminal trial in March last year, a jury ruled the men not guilty of all criminal charges.

In response to the announcement Otaki school teacher Adrian Leason said "Judge Gendall was always going to be under pressure to avoid a full hearing. Clearly the judge has worked hard on his ruling, however early indications suggest that he is in error on several crucial points of law. Over the next few days we will have a chance to discuss the details with our legal friends. If errors have been made we will pursue recourse through the appeal court process."

Mr Leason also expressed disappointment that the GCSB was awarded judgment without having to front up to a full court process. The latest hearing was notable for the absence of any GCSB representatives. Judge Gendall's decision cuts short the legal process by awarding summary judgment to the GSCB without a court considering the defence's arguments, many of which implicate the spybase in human rights abuses and war atrocities as part of the US wars in Iraq in Afghanistan . Mr Leason noted the GCSB's consistent stance of 'neither confirming nor denying', saying "few people would want to know every detail of the GCSB's operations, however some level of transparency and accountability is not an unreasonable request given the highly controversial nature of electronic intelligence gathering and its key role in the US-led war on terror."

The decision to seek summary judgment rather than proceeding to a trial is an understandable compromise between the government's embarrassment at last year's acquittal and the GCSB's reluctance to be subject to any kind of public scrutiny.

It is a novel measure to seek an alternative route to punishment through the civil courts. Documents unveiled by whistleblower website Wikileaks recently revealed that after the 2006 acquittal of the Irish 'Pitstop Ploughshares' who disarmed a US war plane at the Shannon Airport in the early days of the Iraq war, US officials contemplated suing the peacemakers for damages. US ambassador to Ireland James Kenny wrote to then-US Secretary of State Condoleezza Rice in the wake of the acquittal assuring him of Irish government's loyalty to US war efforts "in the face of public criticism", and suggesting a civil suit or similar measure "to convey [US] dissatisfaction with the Shannon Five verdict"; but evidently it was not considered worthwhile.

Documents were produced during the criminal trial costing repairs to the Waihopai radome and fencing at approximately $1.2 million. Attorney-General Christopher Finlayson has signalled the Crown's intention to seek recovery of the full amount plus court costs. He did not make any attempt to defend the $500 million of taxpayers' money spent on building the base over the past 22 years amid the complete absence of any measurable benefits for New Zealand .

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