Bannister-Plumridge v The Queen
[2019] NZHC 1909
•7 August 2019
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
ApplicantAND
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 RespondentJudgment:
7 August 2019
JUDGMENT OF THE FULL COURT
Contents
Facts......................................................................................................................... 2
The initial response.................................................................................................. 3
A prosecution is initiated.......................................................................................... 4
Challenge to the charges.......................................................................................... 5Appeal 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 Armed Forces Discipline Act 1971 which is found in Part 5 of the Act headed “Investigation and summary trial of charges”. Section 102 provides:
102 Investigation of charges
(1)If it is alleged that a person subject to this Act has committed an offence against this Act, the commanding officer of that person must, unless he or she considers that the allegation is not well founded, either—
(a)cause the allegation to be recorded in the form of a charge and to be investigated in the prescribed manner; or
(b)cause the allegation to be referred to the appropriate civil authority for investigation.
(2)In this Part, a matter or thing is done in the prescribed manner if it is done in accordance with, and in the manner prescribed by, this Part and the rules of procedure.
It can be seen that the Act requires that a charge be recorded and a formal investigation undertaken unless it is considered the allegation is not well-founded.
[7] Concerning WO2 Bannister-Plumridge, the CO decided to deal with the matter informally. Rather than record a charge and initiate a formal investigation, the CO decided to address the matter by way of administrative sanctions. These included what is known as “30 days dry” (being no alcohol for that period), participation in the delivery of the group’s wellness courses, which include education on the responsible use of alcohol, and a reprimand. The evidence is sparse as to what the reprimand
entailed in terms of how it is recorded, if at all. Of these measures Lieutenant Colonel Healee has deposed:
13.I routinely take this kind of response to instances of alcohol misuse in a Service context that are reported to me. These matters are within my command prerogative and are not punitive in nature. They may be instituted in conjunction with, or in the absence of, disciplinary action.
14.I deemed that no disciplinary action was necessary and that the administrative actions that I had taken were sufficient response.
WO2 Bannister-Plumridge accepted the CO’s decision.
A prosecution is initiated
[8] About two months later, the primary victim of the van assault, in the course of an employment process, indicated dissatisfaction with how the matter had been handled, particularly the lack of transparency. He was encouraged to file a formal complaint about the incident and did so.
[9] The complaint was forwarded to the CO who considered it cast a different light on the incident from that which he had appreciated two months earlier. Accordingly, the CO asked for another preliminary investigation, so he could make a decision in terms of s 102. The investigation this time included an interview with the injured soldier, and also covered others in the van at the time. Captain Ward again provided a report which largely summarised the incident in the same way as his first report. He repeated his recommendations. Unlike previously, however, the records of the interviews were also provided to the CO. Three charges were recommended, being assaults on two persons in the van, and a charge of conduct likely to prejudice service discipline. This last charge relates to the state of public drunkenness and the context of the presence of subordinate soldiers needing to assist the WO2 because of his intoxication.
[10] The CO considered there were significant differences. The report itself noted more occasions of aggression, and the interviews disclosed a stronger possibility of intentional striking as opposed to panicked flailing. The CO also for the first time saw a photo of the injury caused.
[11] The CO considered the allegations were well founded and should be recorded as charges. He then convened a summary trial, heard evidence, and concluded there was a prima facie case in respect of the three charges. He referred the matter to the Director of Military Prosecutions who did not proceed with one of the two assault charges. The two charges referred to earlier were sent to the Court Martial.
Challenge to the charges
[12] WO2 Bannister-Plumridge sought a preliminary hearing under s 44 of the Court Martial Act 2007, contending that the charges were an abuse of process because they were contrary to the principle of double jeopardy. Two further threads to the abuse of process allegation are that the Director of Military Prosecution’s decision to lay charges is in breach of the Solicitor-General’s Prosecution Guidelines, and that the prosecution will undermine the confidence of soldiery in the system. This is because it is vital that soldiers be able to take a CO at his word, as WO2 Bannister-Plumridge did when he accepted the punishments imposed by the CO. Finally, it was contended that there was no significant change between the two reports provided by Captain Ward to the CO.
[13] Chief Judge Riordan heard the matter sitting alone, as s 44 allows.4 In a careful and full decision, the Chief Judge considered the sanctions imposed by the CO were not punishments, the Guidelines had not been breached but were anyway only guidelines, there was a change in the information available to the CO, and the bringing of the prosecution would strengthen not diminish confidence in the system. It was not considered that WO2 Bannister-Plumridge had suffered prejudice by having served the sanctions imposed on him and the circumstances did not meet the high standard required before a Court would stop a prosecution.
[14] Prior to reaching these conclusions the Chief Judge had considered the jurisdictional aspect of the application which was styled as an application to dismiss the charges. Noting the absence of any equivalent to s 147 of the Criminal Procedure Act 2011, the Chief Judge did not consider the Act allowed the Court Martial to
4 R v Bannister-Plumridge, above n 1.
dismiss charges without a hearing of them in the manner sought by the application.5 However, the Chief Judge considered the Court Martial, like all trial courts, had inherent powers to control their processes and to prevent abuses of those processes through, for example, the common law power to stay proceedings. It seemed to the Chief Judge that was the correct analytical route. We agree.
Appeal decision
[15] Commander Griggs renews the same challenges. Before addressing those, however, we consider it is necessary to consider whether there is jurisdiction to appeal the refusal to stay the prosecution. This was a topic initiated by the Court after receiving the substantive submissions.
Jurisdiction
[16] By way of background, it has long been the case that in the civilian jurisdiction, there is no ability to appeal the refusal of an application to stay proceedings. This is because the relevant criminal statutes have never provided for appeals against exercises of the inherent jurisdiction. That does not preclude the factual basis on which the application was brought later forming part of a general appeal against conviction. It is usually at that stage encompassed within an unfair trial submission. But it is not a direct appeal against the earlier refusal of a stay, since no such appeal power exists.
[17] Section 296 of the Criminal Procedure Act 2011 changed the traditional position. It expressly refers to an appeal against a stay decision.6 The Court of Appeal has, however, recently confirmed that such an appeal is limited to occasions where a stay is granted.7 This is because a stay ends the proceedings and the policy decision was taken to allow a prosecution appeal against that. No change has been made to provide for appeals against unsuccessful applications.
5 At [18]-[19].
6 Section 296(3)(b).
7 Lyttle v R [2019] NZCA 329 at [35].
[18] Commander Griggs submits the position is different in the military context. The relevant appeal provision is capable of accommodating this appeal. Section 7 of the Court Martial Appeals Act 1953 was inserted in 2009 to bring the appeal provision in line with s 44 of the Court Martial Act 2007. It provides:
7 Appeal against ruling
(1)This section applies to a ruling given by a Judge of the Court Martial on a question of law or procedure that arises during proceedings in that court.
(2)Either the Director of Military Prosecutions or the accused may, with the leave of the court obtained in accordance with section 8, appeal to the court against a ruling to which this section applies.
(3)On an appeal under this section, the court may—
(a)confirm the ruling; or
(b)vary the ruling; or
(c)set the ruling aside.
(4)If subsection (3)(c) applies, the court may make any other ruling that—
(a)could have been made in the first place; and
(b)the court thinks appropriate.
(5)In this section, question of law includes any question arising in respect of—
(a)a plea to the general jurisdiction of the Court Martial:
(b)a plea in bar of trial:
(c)an application for the separation of trials:
(d)an application for the severance of charge sheets:
(e)an application for the severance of charges:
(f)a submission that there is no case to answer:
(g)the admissibility of evidence:
(h)an application for a ruling referred to in section 30(2)(a) of the Court Martial Act 2007:
(i)an application for an order specified in section 39(2) of the Court Martial Act 2007:
(j)an order under subpart 3 of Part 5 of the Criminal Procedure Act 2011 (as applied to proceedings under the Armed Forces Discipline Act 1971 by section 145 of that Act):
(k)an application for discovery.
[19] It is necessary to first note an important wording difference. Section 296 of the Criminal Procedure Act, like this provision, provides for appeals, with leave, on questions of law, but limits it to a question of law that arises in the determination of the charge.
[20] It is the concept of determination of the charge that has seen the appeal power interpreted as applying only where a stay is granted, since it is only that decision that represents a determination of the charge.8 As can be seen, s 7 of the Court Martial Appeal Act has no equivalent limitation, and this is submitted to mean the present appeal may be brought.
[21] We agree that the absence of the words requires a different analysis. We note that an appeal against the refusal of a stay of proceedings is not included in the topics set out in s 7(5) but do not consider that list should be viewed as exhaustive. There is no need to limit the appeal power in this way and it may be that circumstances will arise, not expressly covered by s 7(5), where it is convenient to determine a matter pre-trial. We consider a generous approach to the scope of s 7 can be taken because of the leave requirement. That provides the Court with a valuable tool in controlling the scope of pre-trial appeals outside the list contained in s 7(5).
[22] In relation to the present application for leave we make two observations. First, the general prohibition on this type of appeal is long-standing. If the trial court is not persuaded that there is an abuse of process, the preferable process is for the charges to be determined. General appeal powers are then available. Second, with some inevitable exceptions to reflect the different context, the disciplinary procedures within the armed forces jurisdiction, and particularly the Court Martial processes, largely mirror those of the civilian jurisdiction. We discern no legislative intent to establish a different position in the armed forces area from that which pertains in the civilian
8 See Lyttle v R, above n 7, at [27]-[36].
jurisdiction. Whilst the difference in wording allows the potential for a pretrial appeal such as the present application, nothing suggests this possibility was intended or promoted. Rather, we consider there are good policy reasons underlying the approach consistently taken in the civilian jurisdiction, and good reasons to maintain consistency between the two jurisdictions
[23] Accordingly, while we recognise that the wording of the statute allows the possibility for such an appeal, we consider it will be the exception when leave to appeal the refusal of a stay is given pretrial.
[24] With those observations we turn to address the substance of the application and whether any reason appears that would merit a departure from the approach we have articulated.
An abuse of process?
[25] Commander Griggs puts most weight on a passage from Fox v Attorney-General.9 In that case Mr Fox, the accused, and the police had come to a compromise whereby more serious charges were withdrawn, and guilty pleas entered to the lesser remaining charges. The file was referred to the Crown Solicitor to appear at the sentencing, and the Crown Solicitor determined that the original withdrawn charges should be relaid. Mr Fox argued that allowing the re-laid charges to continue would be an abuse of the court’s processes.
[26]In the course of its discussion the Court of Appeal observed:10
Conduct amounting to abuse of process is not confined to that which will preclude a fair trial. Outside of that category it will, however, be of a kind that is so inconsistent with the purposes of criminal justice that for a Court to proceed with the prosecution on its merits would tarnish the Court’s own integrity or offend the Court’s sense of justice and propriety. The power of stay is not available for disciplinary purposes nor to reflect a Court’s view that a prosecution should not have been brought. The hallmarks of official conduct that warrant a stay will often be bad faith or some improper motive for initiating or continuing to bring a prosecution but may also be simply a change of course by the prosecution having a prejudicial impact on an accused. Finally, to stay a prosecution, and thereby preclude the determination of the
9 Fox v Attorney-General [2002] 3 NZLR 62 (CA).
10 At [37] (emphasis added).
charge on its merits, is an extreme step which is to be taken only in the clearest of cases.
[27] Commander Griggs places weight on the italicised passage which he submits is on all fours with the present case. It is said that what most distinguishes this case from the unsuccessful ones is the fact that here, sanctions have been imposed and carried out. He also places reliance on Jones v Whalley, a House of Lords decision.11 There a private prosecution was launched after the police had dealt with the matter by a formal caution on the accused’s record. The House of Lards considered the prosecution to be an abuse while the caution remained on the record.
[28] In addition to the submission that WO2 Bannister-Plumridge has suffered prejudice by the imposition of sanctions, other factors are also submitted to point to the charges being an abuse of process:
(a)The Solicitor-General Guidelines address the rare cases where revisiting a prosecutorial decision will be appropriate. None of the circumstances identified are submitted to apply. In particular, the matter is not a serious one, and new evidence is not available.
(b)The prosecution represents the CO going back on his word to a soldier and allowing that to continue will undermine confidence in the system.
[29] Fox v Attorney-General describes a stay as an extreme step to be directed only in the clearest of cases.12 We consider the present situation to be sufficiently removed from that level to require only a relatively brief response.
[30] We accept Jones v Whalley offers some support to the appellant’s submission, but each case requires consideration of its own facts. In relation to the sanctions, we do not consider WO2 Bannister-Plumridge has suffered any prejudice that cannot be offset by a sentencing Court should matters reach that point. The sanctions to date are minor and easily able to be accounted for should further punishment be contemplated. The “punishment” WO2 Bannister-Plumridge has already experienced is not of a type
11 Jones v Whalley [2006] UKHL 41, [2007] 1 AC 63.
12 Fox v Attorney-General, above n 9, at [37].
or level that causes one to doubt the appropriateness of further processes should other circumstances make a prosecution appropriate.
[31] In reaching that conclusion we do not endorse the CO’s assessment that the sanctions he imposed do not have a punitive aspect. The label administrative cannot be used to mask the true nature of some measures. Here the administrative measures involve the removal of privileges and the requirement to undertake further tasks. They are measures imposed in direct response to WO2 Bannister-Plumridge’s misconduct. They will be experienced as a punishment, albeit low on the scale of such things, and undoubtedly contain a punitive aspect. As noted, we do not see their imposition as likely to prevent the laying of formal charges where that is appropriate, but their prior imposition is a relevant consideration, especially when they were portrayed as the resolution of the matter.
[32] Once the issue of sanctions and prejudice is put to one side, there is nothing to support the extreme step of a stay of proceedings. An initial decision to deal with a matter administratively has been revisited because a victim of the incident expressed concern about the process. This led to the decision maker to request a fuller report so as to be able to review whether his initial approach was correct. That was a correct approach. The review then led the decision maker, the CO, to conclude his initial decision required reconsideration and he did so, using the formal processes of the disciplinary scheme.
[33] The formal processes now being followed are fair, and as we have observed, will enable at the appropriate time full cognisance to be taken of what has gone before. There is no suggestion of bad faith.
[34] We reject the proposition that what has happened will undermine confidence in the system. Rather, we consider a properly informed observer will take comfort in the fact that the CO was willing to revisit his own decision, and that the system requires a further independent decision on the charges by the Director of Military Prosecutions. Further, the same informed observer who suspends judgment until the process is over will no doubt then see that the Court Martial, if matters get to this point, will give proper regard and weight to what has happened initially.
[35] To briefly address other matters raised by the appellant, it is clear there was more information before the CO on the second occasion. In particular, the victim of the alleged assault was not interviewed on the first occasion. While the covering report may not have been different, the information available to the CO was fuller.
[36] Finally, the Solicitor-General’s Guidelines apply to decisions taken by the Director of Military Prosecutions.13 We see no basis to conclude they have been breached. Rather in our view, they contemplate the type of situation involved here. Guideline 5.13 explicitly provides that a decision of “no prosecution” does not preclude further consideration in appropriate circumstances. For the reasons already discussed we consider such circumstances existed here.
[37]Leave to appeal is declined.
Justice Simon France Judge McGregor Judge Billington QC
13 Armed Forces Discipline Act 1971, s 101K.
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