Saturday, November 27

Judge takes measures to suppress the name of the country in case of court martial of espionage

The judge overseeing a rare espionage court martial has moved to suppress the country’s name at the center of the case.

New Zealand Army soldiers inside an Australian Army vehicle during mission rehearsal exercise for Task Group Taji 3 at the Edinburgh RAAF, with some 300 Australian Soldiers, Sailors and Airmen prepared for deployment to Iraq in exercise at the Edinburgh RAAF in Adelaide, South Australia.

Photo: NZDF / Supplied

A New Zealand Defense Forces soldier, based at Linton Military Camp, is charged with spying in a case that is the first of its kind in New Zealand.

The soldier, who has continued with the provisional deletion of the name, was called before the court martial today for what was a largely procedural preliminary hearing at Linton military camp.

Crown attorneys Kate Feltham and Flight Lieutenant Sophie Bruynel were in attendance today for the Office of the Director of Military Prosecutions, while Paul Murray and Esme Killeen appeared for the accused soldier.

The defendant attended the hearing remotely via Zoom today, as did media attorney Kristin Wilson of Belly Gully to represent RNZ., NZME and Stuff Limited.

The case

The man, who was 27 at the time of his arrest, faces a combination of civil and service charges established under the Armed Forces Discipline Act of 1971 and the Crimes Act of 1961.

There are four counts of espionage, two of attempted espionage, two of possession of an objectionable publication, and three of accessing a computer system for a dishonest purpose.

He is also charged with performing an act that may undermine the discipline of the Service or discredit the Service, one count of negligent breach of duty, and four counts of breach of written orders.

The espionage case is the first of its kind in New Zealand; the only other historical example is the 1975 trial of Bill Sutch, who was accused of being a Soviet agent and later acquitted.

What happened today

During the mid-day hearing, Chief Judge Kevin Riordan heard presentations on suppression of names, alternative ways of presenting evidence, and the admissibility of evidence.

Judge Riordan granted a series of Crown requests under section 205 2 (f) that relate to the court’s ability to suppress aspects of the evidence that may harm New Zealand’s security or defense.

These suppression orders include the name of the foreign country with which the soldier allegedly tried to share information and the names of some expert witnesses, along with the nature of the work they do.

The suppression of information on the basis of the risk it poses to the security or defense of the country is rare, unlike other reasons such as undue hardship, the risk of undermining a fair trial and endangering the safety of a person.

In making his decisions, Judge Riordan had to weigh the risk of damaging New Zealand’s security or defense against the principles of open justice, protected in the Rights Act 1990.

New Zealand courts, including court martial, are generally open to the public and the media to allow the public to observe the administration of justice.

The New Zealand Courts website states that this is known as the “open justice” principle in which a public hearing process maintains public confidence in the justice system.

RNZ, NZME and Stuff Limited argued that journalists should have maximum access to the upcoming court martial, which is expected to hear restricted and classified information, such as the eyes and ears of the public.

Media attorney Kristin Wilson’s presentations were based on the principles of open justice; arguing that any restriction imposed on journalists to protect sensitive information should be the least restrictive possible.

The soldier’s lawyers argued that the removal of the man’s name should continue due to extreme hardship and jeopardize the security threshold grounds, set out in Section 200 of the Criminal Procedure Act of 2011.

After hearing arguments, the judge ordered the provisional removal of the name to continue while more information about the man’s mental health status is established before another pre-trial hearing, the date of which has yet to be set.

Judge Riordan also rejected the Crown’s request for an order requiring any journalist who wishes to attend the court martial undergo a police investigation prior to trial.

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