The soldier faces 17 charges under the Armed Forces Discipline Act. Photo / Getty Images
By Jimmy Ellingham of RNZ
A soldier with links to far-right groups and who is accused of spying will face a court martial hearing next week – a first-of-its-kind prosecution shrouded in secrecy for now.
The Linton-based soldier’s name is suppressed and so is the foreign country at the centre of the espionage case, as well as the names of some prosecution expert witnesses.
RNZ is opposing these orders and a suppression hearing is scheduled for Monday morning, before the court martial begins.
In late 2020, 17 charges under the Armed Forces Discipline Act were laid against the soldier, including espionage and possessing objectionable material.
Since then, the case has wended its way through pre-trial hearings.
RNZ has previously reported the soldier, aged 27 at the time of his arrest, was a member of far-right groups the Dominion Movement and Action Zealandia.
In a similar case 50 years ago, Bill Sutch was tried and acquitted in the civilian court of espionage, for passing information to the Russians.
Next week’s court martial is the first military case.
“I think ‘unusual’ is not the right term,” said retired University of Auckland law professor Bill Hodge about the prosecution. “I think ‘unique’ might be the correct term.”
Hodge said the suppression orders appeared extensive.
“I’ve always been surprised that there could be information held by the armed forces which absolutely had to be kept top-secret.
“There may be information about the citizens of a foreign jurisdiction and what they’re doing here, but still, that would be of public interest.”
Hodge said historically, military courts were ahead of civilian ones on matters of justice and fairness, although they might hold concerns about making information public.
“Remember, the background of a military court would concern hostilities and [be] in the face of the enemy. In that sort of situation, that sort of context, they would be greatly concerned with information that would aid the enemy.
“I don’t see an enemy at this moment, so I’m still mystified at what secrecy they’ll be pursuing.”
One difference between courts martial and civilian courts is that instead of a jury, a panel of senior military officers hears the evidence and decides on a defendant’s guilt or innocence, and – if applicable – their sentence.
In his previous career in the military, Hodge sat on these panels.
“A military court is concerned with fairness, right to counsel, the insanity defence, for example, the discovery of information,” he said. “One thing I could say firmly is the individual will have a fair trial, because in my experience, it’s a fair system.”
David Pawson is an experienced court martial counsel and, in 30 years – first with the military police, then as a lawyer – he has never seen a similar case.
“When I was a military police special investigator – that was at the end of the Cold War period – and even during that period, I was not aware of any investigation of that sort of nature. I have to say that was a new one to me.”
The system was robust and transparent, he said.
“The court martial, in my experience, has always been very careful not to be seen as a secretive court and generally does apply those principles the same way that they do in the civil court.”
This meant the starting point for suppression decisions was open justice.
Another experienced court martial lawyer, Michael Bott, said talking to a military panel was somewhat different to addressing a jury.
“There are military values you have to take into account and also, with a court martial, it’s governed by the Armed Forces Discipline Act, as opposed to the Criminal Procedure Act, but the Bill of Rights still applies.
“When you’re doing an opening and a closing, the processes and techniques are pretty much transferable.”
He said suppression arguments at courts martial sometimes included matters not applicable to civilian courts, such as national security.
Hodge said he didn’t think the court martial would reflect badly on New Zealand’s reputation.
“I think there’s the opposite argument that the allies could say, ‘New Zealand is alert, New Zealand is sufficiently concerned about this matter and they’re looking after whatever information this might be’.
“While you could say, ‘Is New Zealand a leaky sieve?, no, New Zealand is behaving properly and attending to the disciplinary side of a possible breach.”
If the soldier is found guilty next week, he won’t face the death penalty. This was removed from military law in 1989, but sentences for courts martial range from losing rank to a lengthy term in military prison.