Bannister-Plumridge v The Queen - [2019] NZHC 1909

IN THE COURT MARTIAL APPEAL COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CIV 2019-485-64

[2019] NZHC 1909

BETWEEN R997916 WARRANT OFFICER CLASS TWO TAIARIKI
BANNISTER-PLUMRIDGE
Applicant

AND

THE QUEEN

Respondent

Hearing: 25 July 2019

Court:
Counsel:

Simon France J Judge D McGregor Judge Billington QC

C Griggs for Applicant
P K Feltham and FGOFF S Ironside for Respondent

Judgment:

7 August 2019

JUDGMENT OF THE FULL COURT

Contents

Facts......................................................................................................................... 2
The initial response.................................................................................................. 3
A prosecution is initiated.......................................................................................... 4
Challenge to the charges.......................................................................................... 5
Appeal decision........................................................................................................ 6
Jurisdiction............................................................................................................... 6
An abuse of process?................................................................................................ 9

R997916 WARRANT OFFICER CLASS TWO TAIARIKI BANNISTER-PLUMRIDGE v R [2019] NZHC 1909
[7 August 2019]

[1] Warrant Officer Class Two (WO2) Bannister-Plumridge seeks leave to appeal pre-trial a decision of Chief Judge Riordan declining to dismiss or stay two charges faced by WO2 Bannister-Plumridge.1 The charges are an allegation of common assault,2 and of conduct likely to prejudice service discipline.3

Facts

[2] WO2 Bannister-Plumridge is the Company Sergeant Major of 1st New Zealand Military Intelligence Company. On the evening of 24 May 2018, members of the group visited Wellington bars as part of a function to welcome an allied force visitor on secondment and a former member returning from a posting elsewhere.

[3] It is sufficient for present purposes to observe that WO2 Bannister-Plumridge became so intoxicated he needed assistance to be carried into a van. Once belted in, he fell asleep for a while before waking and throwing his arms around violently. The person sitting next to him suffered minor injuries, including a black and swollen eye. Another was also hit. There were at least two such outbursts from WO2 Bannister-Plumridge who had to be restrained for the journey.

[4] The following day at a barbeque, WO2 Bannister-Plumridge issued a general apology for his conduct, saying he displayed such issues when intoxicated. He also subsequently took steps to obtain the phone numbers of those most affected, and rang them to apologise. However, following those actions and still concerned about the situation and his conduct, WO2 Bannister-Plumridge advised the Officer Commanding (OC), Major David Henderson, of the incident.

1      R v Bannister-Plumridge Court Martial   of   New Zealand   Trentham   CIV-2019-485-64,   13 February 2019.
2      Armed Forces Discipline Act 1971, s 74(1); and Crimes Act 1961, s 196.
3      Armed Forces Discipline Act 1971, s 73(1)(a).

The initial response

[5] The matter was then reported to the Commanding Officer (CO), Lieutenant Colonel Jason Healee, who directed the OC to investigate the matter. The OC directed Captain Drew Ward to carry out a preliminary inquiry. This was carried out, and Captain Ward recommended that a formal investigation be undertaken by a person external to the Company. The OC endorsed the recommendation when forwarding Captain Ward’s report to the CO. As part of this preliminary exercise, the soldier who had suffered injuries as a result of the van incident had not been spoken to by Captain Ward.

[6] At this point it is convenient to set out s 102 of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 1909
Decision Date: 7 August 2019

CaseChat Overview and Summary

Warrant Officer Class Two Taiariki Bannister-Plumridge sought leave to appeal a decision of Chief Judge Riordan, who declined to dismiss or stay two charges faced by him. The charges are an allegation of common assault and of conduct likely to prejudice service discipline. The appeal decision was heard by Simon France J, Billington QC, and Judge McGregor. The court considered the legal issues regarding the jurisdiction to appeal the refusal to stay the prosecution and whether the charges were an abuse of process.

The court examined the relevant appeal provision in the Court Martial Appeals Act 1953, which allows an appeal against a ruling given by a Judge of the Court Martial on a question of law or procedure. However, the court noted that the absence of a specific provision for appeals against unsuccessful applications for a stay in the Court Martial Appeals Act does not preclude the possibility of such an appeal. The court observed that the leave requirement provides the Court with a valuable tool in controlling the scope of pre-trial appeals outside the list contained in the statute.

The court then addressed the issue of whether the charges were an abuse of process. The court found that the situation did not meet the high standard required before a court would stop a prosecution. The court observed that the initial decision to deal with the matter administratively had been revisited because a victim of the incident expressed concern about the process, which led to the decision-maker requesting a fuller report to review whether the initial approach was correct. The court concluded that the formal processes now being followed were fair, and there was no suggestion of bad faith. The court rejected the proposition that the situation would undermine confidence in the system, and the Solicitor-General's Guidelines had not been breached.

The Full Court declined leave to appeal the refusal to stay the prosecution.

[Note: The final orders of the court are not explicitly mentioned in the judgment. However, based on the context, it can be inferred that the court declined leave to appeal the refusal to stay the prosecution.]

Orders