Keat v R

JurisdictionNew Zealand
CourtHigh Court
JudgeMallon J,Judge J Billington,Judge D McGregor
Judgment Date10 Nov 2014
Neutral Citation[2014] NZHC 2784
Docket NumberCIV 2013-485-8648

[2014] NZHC 2784

IN THE COURT MARTIAL APPEAL COURT OF NEW ZEALAND WELLINGTON REGISTRY

Court:

Mallon J Judge J Billington QC Judge D McGregor

CIV 2013-485-8648

BETWEEN
Kevin John Keat
Appellant
and
The Queen
Respondent
Appearances:

M Bott and S Taylor for the Appellant

P K Feltham and Major A Taylor for the Respondent

Appeal against convictions entered by the Court Martial — decision on whether a retrial should be ordered — the appellant had been a Commodore in Royal New Zealand Navy — he was convicted on offences under the Armed Forces Discipline Act 1971 (AFDA) in July 2013 — following his convictions he was sentenced to dismissal from the service in October 2013 — in accordance with s66(4) Court Martial Act 2007 (dismissal does not take effect until the expiration of the period for lodging an appeal …or… until the appeal was determined) the appellant's dismissal was suspended until his appeal was determined — the appellant's convictions were quashed on appeal in April 2014 — by that time the New Zealand Defence Force had released him from service as he had reached his terminal service date — the appellant argued that because of his civilian status, an order for a retrial was no longer available or appropriate — whether the Court Martial continued to have jurisdiction over the appellant when that he had been released from service — whether he was deemed to still be subject to the AFDA.

The issues were: whether the Court Martial continued to have jurisdiction once the appellant was released from service; and whether he was deemed to be subject to the AFDA under s17 – s18.

Held: The power to direct a new trial under s9A(3)(b)(ii) CMA (determination of appeals against conviction) was discretionary. One of the factors which was important in the exercise of the discretion was whether the Court Martial continued to have jurisdiction over K once he was released from service. A retrial would not be ordered if that order would be pointless because the Court Martial did not have jurisdiction.

The power of the CMAC to direct a retrial was separate from the question of the Court Martial's jurisdiction over K. The Court Martial's jurisdiction in respect of those charges depended upon K being subject to the AFDA as expressly provided for in s78 AFDA (jurisdiction of Court Martial — to try any charge against a person subject to this Act in respect of an offence against this Act).

The Court Martial's jurisdiction was also conferred by s36 CMA (Court Martial has the jurisdiction conferred by s78 AFDA). To have jurisdiction over K in order to re-try him, K had to be a person who was “subject to” the AFDA. An order for a retrial would be ineffective if he was no longer subject to that Act.

Section 6 AFDA set out persons in the Navy, Army and the Air Force who were subject to the Act. Section s6(1) provided that it covered all officers of the Royal New Zealand Navy (RNZN), the Royal New Zealand Naval Reserve, the Royal New Zealand Naval Volunteer Reserve, or the Naval Reserves, or of any additional naval force raised in accordance with section 11(3)(e) Defence Act 1990. As an officer of the RNZN at the time of the alleged offending, K was subject to the Act.

Had the NZDF offered K an extension of service and if K had accepted, he would still be a member of the RNZN and therefore would still subject to the AFDA. Had K declined the offer he would still have been liable for transfer to the Naval Reserves for a period of two years from 1 February 2014. In that event K would have remained subject to the AFDA as a member of the Naval Reserves.

Instead the NZDF decided not to offer him a further period of service and further decided to release him from his reserve liability. By the time K's appeal was heard on 30 April 2014, he was no longer a member of the RNZN and he was no longer liable for transfer to the Naval Reserves. He was, therefore, no longer subject to the AFDA under s6 AFDA.

None of the deeming provisions applied to K. Section 17 specifically provided that a person “shall remain subject to this Act” despite a dismissal or discharge from the service arising from a sentence of imprisonment or detention. The provision was necessary because:

  • (a) a sentence of imprisonment imposed on an officer led to a deemed dismissal; and

  • (b) where a sentence of imprisonment was imposed on a rating, soldier, or airman, he or she might also be sentenced to dismissal.

However s17 did not apply to K because he was not sentenced to imprisonment or detention.

Section 18(2) AFDA provided that the person was deemed to be subject to the AFDA until the charge was disposed of and to hold the same status and rank he held immediately before ceasing to be a person subject to the Act. Section 18(2) AFDA was framed as though the person had already ceased to be subject to the Act when the allegation was recorded in the form of a charge. That was not the case in relation to K.

The deeming provisions did not apply.

NZDF had already shown that it had taken the allegations made against K very seriously. It had been prepared to bring charges and on conviction it considered the appropriate penalty was dismissal. General deterrence objectives had been met by those actions regardless of whether there was a retrial. A retrial was not necessary for personal deterrence. K was no longer subject to Defence Force Orders. If there were lessons to be learnt by K, a retrial was not necessary for that purpose.

By releasing K from the service, the Court Martial could no longer impose what it considered to be the appropriate penalty (namely dismissal).

A retrial was not ordered.

JUDGMENT OF THE COURT

Table of Contents

Introduction

[1]

Background

[5]

Power to order a retrial

[8]

Does exercising the power to direct a retrial provide jurisdiction?

[12]

Who is “subject to” the Armed Forces Discipline Act?

[18]

Is Mr Keat within section 6?

[20]

Do the deeming provisions in ss 17 to 19 of the Armed Forces Discipline Act apply?

[40]

Do the remaining Part 1 provisions assist?

[49]

An extension for disciplinary purposes?

[51]

Conclusion on

[59]

Other matters

[60]

Result

[66]

Introduction
1

We refer to our judgment delivered on 19 August 2014. 1 In that judgment we quashed Commodore Keat's convictions entered by the Court Martial and sought submissions on whether a retrial should be ordered. We said: 2

We have considered what further orders should be made in light of our view that the convictions must be quashed. We consider that we are not in a position to determine whether or not the charges would have been proven if all the legal elements of the charges were considered. We are unclear whether an order for a retrial is sought or regarded as necessary. We understand that Keat's contract with NZDF would have come to an end on 14 February 2014 3 unless it was extended (and it was not). We seek submissions from counsel on whether a retrial should be ordered.

2

We received written submissions from counsel on 12 and 22 September 2014 and heard orally from counsel at a hearing convened on 22 October 2014. We sought and received further written submissions following that hearing.

3

The respondent has confirmed that it seeks an order for a retrial. We are told that there are no practical impediments to a retrial (witnesses are available and an appropriately comprised Court Martial can be convened). We are also told that, although Commodore Keat (now referred to by counsel as Mr Keat) 4 has been released from service, the Director of Military Prosecutions has carefully considered whether he wishes to proceed with a retrial and has determined that a retrial should proceed should we direct one.

4

The order for a retrial is opposed by Mr Keat. It is contended that in view of his civilian status an order for a retrial is no longer available or appropriate. We agree that because Mr Keat is now a civilian a retrial should not be ordered. We set out our reasons below.

Background
5

Commodore Keat was charged with offences under the Armed Forces Discipline Act 1971 on 9 July 2013. The offences relate to the period November 2010 to January 2013. At this time Mr Keat was an officer of the Royal New Zealand Navy. He was tried by a Court Martial on these offences in October 2013. Following his convictions he was sentenced to dismissal from the service on 21 October 2013.

6

Section 66 of the Court Martial Act 2007 requires the Judge to announce in open court any sentence that the Court Martial passes. It goes on to provide:

  • (3) Subsection (4) applies if the Court Martial sentences a person—

    • (a) to be dismissed from Her Majesty's service; or

    • (b) to a term of imprisonment involving dismissal from Her Majesty's service.

  • (4) In delivering a sentence, the Judge must state that the dismissal does not take effect—

    • (a) until the expiration of the period for lodging an appeal to the Court Martial Appeal Court against the conviction or sentence; or

    • (b) if an appeal to that Court, the Court of Appeal, or the Supreme Court is pending, until the appeal is determined

7

Mr Keat (at that stage, still Commodore Keat) filed his appeal on 8 November 2013. In accordance with s 66(4) his dismissal was suspended until his appeal to this Court was determined. Mr Keat's appeal was heard on 30 April 2014. By that time the New Zealand Defence Force (“NZDF”) had released him from service (discussed in more detail below). With our decision to quash his convictions, the sentence of dismissal was of no effect. The question that arises is whether, having released Mr Keat from service, there remains jurisdiction to retry him on charges under the Armed Forces Discipline Act.

Power to order a retrial
8

The starting point is s 9A(3) of the Court Martial Appeals Act 1953 which provides:

9A Determination of appeals against conviction

  • (3) If the court...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT