Keat v R
| Jurisdiction | New Zealand |
| Judge | Mallon J,Judge J Billington,Judge D McGregor |
| Judgment Date | 10 November 2014 |
| Neutral Citation | [2014] NZHC 2784 |
| Docket Number | CIV 2013-485-8648 |
| Court | High Court |
| Date | 10 November 2014 |
[2014] NZHC 2784
Mallon J Judge J Billington QC Judge D McGregor
CIV 2013-485-8648
IN THE COURT MARTIAL APPEAL COURT OF NEW ZEALAND WELLINGTON REGISTRY
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.
M Bott and S Taylor for the Appellant
P K Feltham and Major A Taylor for the Respondent
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] |
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.
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.
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.
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.
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.
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
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.
The starting point is s 9A(3) of the Court Martial Appeals Act 1953 which provides:
…
(3) If the court allows an appeal, the court—
(a) may squash the conviction; and
(b) may do any of the following:
(i) direct a judgment and finding of acquittal to be entered; or
(ii) direct a new trial; or
(iii) make any other order that justice requires.
The power to direct a new trial is discretionary. There was a similar discretionary power in the predecessor provision of the Court Martial Appeals Act. 5 That predecessor provision was considered by the Court Martial Appeal Court in R v Lawrence (No 1). 6 The Court considered that the approach set out in Reid v R
should apply. 7 Under that approach:
(a) The power to order a new trial ought not to be exercised where the reason for setting aside the verdict is that the evidence adduced at trial is insufficient to justify a conviction by a reasonable jury even if properly directed.
(b) Where the evidence at trial was so strong that any reasonable jury if properly directed would have convicted the defendant the proper course would be to dismiss the appeal.
(c) In between those two situations there may be many factors that need to be considered, some of which may point towards ordering a new trial and some which do not.
The present case is the situation in (c). A number of factors may be considered in determining whether to order a retrial. However the conventional approach in the criminal jurisdiction in that kind of case is for the Court to order a retrial and to leave it to the Crown to decide whether to proceed further. This reflects the important broad constitutional principle that the Crown prosecutes and the Court adjudicates. 8 This conventional approach can be departed from where there is sufficient reason to do so. 9
One of the factors we consider to be important in the exercise of our discretion is whether the Court Martial continues to have jurisdiction over Mr Keat now that he is released from service. We would not order a retrial if that order would be pointless because the Court Martial did not have jurisdiction over Mr Keat. We consider that issue first, before turning to other matters that were raised.
The respondent submits that, if we exercise the power to direct a new trial, that is sufficient to give the Court Martial jurisdiction to retry Mr Keat. We do not accept this submission. Our power to direct a retrial is separate from the question of the Court Martial's jurisdiction over Mr Keat.
The charges against Mr Keat are brought under the Armed Forces Discipline Act. The Court Martial's jurisdiction in respect of those charges depends upon Mr Keat being subject to that Act. This is expressly provided in s 78 of the Armed Forces Discipline Act: 10
Subject to the provisions of this Act, the Court Martial has jurisdiction to try any charge against a person subject to this Act in respect of an offence against this Act, whether committed in New Zealand or elsewhere.
The requirement to be subject to the Armed Forces Discipline Act also defines its extraterritorial operation. Section 4(2) of that Act provides that it “applies
The Court Martial's jurisdiction is also conferred by s 36 of the Court Martial Act 2007. It is in these terms:
(1) The Court Martial has the jurisdiction conferred by section 78 of the 1971 Act.
(2) In addition, the Court Martial must sit to hear and determine—
(a) every charge laid before the Registrar by the Director of Military Prosecutions:
(b) every application made by the Director of Military Prosecutions under section 63(2):
(c) every other application made to the court under this Act (for example, an application for bail) or the 1971 Act.
Subsection (1) therefore confers the same jurisdiction as that under the Armed Forces Discipline Act (being the 1971 Act referred to). Subsection (2) requires the Court Martial to sit and determine charges laid before the Registrar of the Court Martial, 11 applications under s 63(2) of the Court Martial Act (which concerns orders to come up for sentence) and any other application to...
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