Keat v The Queen - [2014] NZHC 2784

IN THE COURT MARTIAL APPEAL COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2013-485-8648 [2014] NZHC 2784

BETWEEN KEVIN JOHN KEAT Appellant

AND

THE QUEEN Respondent

Hearing:
22 October 2014 (further submissions on 28 October, and 6 and

7 November 2014)

Court:

Mallon J

Judge J Billington QC Judge D McGregor

Appearances:

M Bott and S Taylor for the Appellant
P K Feltham and Major A Taylor for the Respondent

Judgment:

10 November 2014

JUDGMENT OF THE COURT

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 jurisdiction .............................................................................................................. [59] Other matters .................................................................................................................................. [60]
Result ................................................................................................................................................ [66]

KEAT v R [2014] NZHC 2784 [10 November 2014]

Introduction

[1] 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 20143 unless it was extended (and it was not). We seek submissions from counsel on whether a retrial should be ordered.

[2] 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.

[3] 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.

[4] 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.

1 Keat v R [2014] NZHC 1961

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.

Continue reading Keat v The Queen

Details

AGLC: Keat v The Queen [2014] NZHC 2784
Case: [2014] NZHC 2784
Decision Date: 10 November 2014

CaseChat Overview and Summary

The Court Martial Appeal Court was asked to decide whether to order a retrial for Mr Keat, who had been convicted and sentenced to dismissal from the New Zealand Defence Force (NZDF) under the Armed Forces Discipline Act 1971. Mr Keat had appealed against the conviction and sentence, which were subsequently quashed by the Court. The Court sought submissions on whether a retrial should be ordered. The respondent argued that a retrial should proceed, while Mr Keat opposed it, asserting that his civilian status rendered a retrial inappropriate. The Court agreed with Mr Keat, finding that, given his release from the NZDF, the Court Martial no longer had jurisdiction to try him on the charges brought against him. The Court outlined that the jurisdiction of the Court Martial under the Armed Forces Discipline Act 1971 depended on Mr Keat being "subject to" the Act. As Mr Keat had been released from service and his reserve liability had been waived, he was no longer subject to the Act. Consequently, the Court declined to direct a retrial, noting that while the NZDF considered the prosecution of the charges to be significant, the Court's decision not to order a retrial did not undermine this view. The Court concluded that the release of Mr Keat from service meant that the Court Martial could no longer impose the penalty it considered appropriate, and any further proceedings would serve no practical purpose.

Orders