Keat v The Queen
[2014] NZHC 1961
•19 August 2014
ORDER PROHIBITING PUBLICATION OF NAMES AND IDENTIFYING PARTICULARS OF THE COMPLAINANT AND HER DAUGHTER PURSUANT TO S 145 OF THE ARMED FORCES DISCIPLINE ACT 1971
AND S 202 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE COURT MARTIAL APPEAL COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2013-485-8648 [2014] NZHC 1961
BETWEEN KEVIN JOHN KEAT Appellant AND
THE QUEEN Respondent
Hearing: 30 April 2014 Court:
Mallon J
Judge J Billington QC Judge D McGregor
Counsel:
M Bott and S Taylor for the Appellant
P K Feltham and Major A Taylor for the RespondentJudgment:
19 August 2014
JUDGMENT OF THE COURT
A. The appeal against convictions is allowed.
B. The convictions on charges 1, 2, 4, 5 and 8 are quashed.
C. We seek submissions from counsel as to whether any further orders are sought from us and in particular whether an order referring the charges
back for a retrial is sought.
REASONS OF THE COURT
(Given by Mallon J)
KEAT v R [2014] NZHC 1961 [19 August 2014]
Table of Contents
Introduction ........................................................................................................................................................ [1] The charges ......................................................................................................................................................... [5] Charges on which Keat was convicted ............................................................................................................ [5]
The Defence Force Order ................................................................................................................................ [7] The Act .......................................................................................................................................................... [13] Relevant time periods .................................................................................................................................... [16]
The evidence ...................................................................................................................................................... [17]
2008: Auckland ............................................................................................................................................. [18]
December 2008 to January 2009: Wellington ............................................................................................... [20]
February to August 2009: Timor ................................................................................................................... [22]September 2009 to March 2010: return from Timor ...................................................................................... [25] September to November 2010: AC Pers appointment ................................................................................... [29] December 2010: motel encounter.................................................................................................................. [46]
2011 ............................................................................................................................................................... [49]
December 2011: telephone call ..................................................................................................................... [61] Subsequent events.......................................................................................................................................... [67] Charge 1 (failing to comply with orders): mens rea....................................................................................... [99] The charge ..................................................................................................................................................... [99] Some general principles .............................................................................................................................. [101] Mens rea required for this offence ............................................................................................................... [107]
The elements of the offence.......................................................................................................................... [110] Admission of Facts .......................................................................................................................................[111] Counsels’ addresses ..................................................................................................................................... [112]
The Judge’s summing up.............................................................................................................................. [115] The aide memoire ........................................................................................................................................ [119] Our assessment............................................................................................................................................ [121]
Charge 2 (unprofessional close relationship): mens rea .............................................................................. [137] The charge ................................................................................................................................................... [137] The elements of the offence.......................................................................................................................... [138] Admission of Facts ...................................................................................................................................... [139] Counsels’ addresses ..................................................................................................................................... [140] The Judge’s summing up.............................................................................................................................. [142] The aide memoire ........................................................................................................................................ [145] Our assessment............................................................................................................................................ [147]
Charge 4 (prejudice to service discipline): mens rea ................................................................................... [152] The charge ................................................................................................................................................... [152] Wrong charge and double charging?........................................................................................................... [153] The elements of the offence.......................................................................................................................... [155] The Admission of Facts ............................................................................................................................... [161] Counsels’ addresses ..................................................................................................................................... [162] The Judge’s summing up.............................................................................................................................. [165] The aide memoire ........................................................................................................................................ [167] Our assessment............................................................................................................................................ [173]
Charge 8 (prejudice to service discipline): mens rea ................................................................................... [182] The charge ................................................................................................................................................... [182] Wrong charge and double charging?........................................................................................................... [183] The elements of the offence.......................................................................................................................... [184] The Admission of Facts ............................................................................................................................... [185] Counsels’ addresses ..................................................................................................................................... [186] The Judge’s summing up.............................................................................................................................. [187] The aide memoire ........................................................................................................................................ [188] Our assessment............................................................................................................................................ [190]
Charge 5 (using threatening language): mens rea ........................................................................................ [194] The charge ................................................................................................................................................... [194] The elements of the offence.......................................................................................................................... [195] Counsels’ addresses ..................................................................................................................................... [199] The Judge’s summing up.............................................................................................................................. [200] The aide memoire ........................................................................................................................................ [202] Our assessment............................................................................................................................................ [203]
The Judge’s hand out ..................................................................................................................................... [204] Was a lies direction required?........................................................................................................................ [206] The Ballentynes evidence ............................................................................................................................... [215] Other grounds of appeal................................................................................................................................. [219] Conclusion ....................................................................................................................................................... [220]
Introduction
[1] In civilian life a relationship between two consenting adults is ordinarily a private matter. In the ordinary course disclosure of relationships is not compelled by law nor subject to penalty if disclosure is not made. The position is different in the Armed Forces. Disclosure of a close personal relationship is required. Action must be taken to ensure unprofessional close personal relationships do not continue. And because those requirements are set out in written orders, failure to do those things is an offence which is subject to potentially serious penalties.
[2] Commodore Kevin Keat was an officer of the Royal New Zealand Navy. After 37 years with the Navy he was dismissed from Her Majesty’s service for failing to disclose a close personal relationship, failing to bring the relationship to an end, and for using threatening, insulting and provocative language to the woman with whom he was said to have the close personal relationship. At his trial before the Court Martial his defence was that there was no such relationship. The Court Martial found otherwise. He was convicted of five offences under the Armed Forces Discipline Act 1971 (“the Act”) and punished by dismissal. He now appeals against his convictions and sentence.
[3] The appeal against the convictions is on the basis of alleged errors in the Judge’s summing up to the Military Members before they retired to consider their verdicts. The principal alleged error relates to the mens rea element of each charge (that is, the state of mind held by Keat that the prosecution was required to prove). A number of other matters are also raised. On the sentence appeal the main submission is that it was manifestly excessive to dismiss Keat for the offending on which he was convicted. A number of criticisms are also made as to the approach adopted in reaching that sentence.
[4] The woman to whom these charges relate (the complainant) and her daughter have name suppression.1 At the relevant time the complainant was a civilian
1 Suppression orders were made in the Court Martial. We make an order prohibiting publication of the names and identifying particulars of the complainant and her daughter pursuant to s 145 of the Armed Forces Discipline Act 1971 and s 202 of the Criminal Procedure Act 2011.
employee of the New Zealand Defence Force (NZDF). The complainant’s daughter
is a member of the NZDF.
The charges
Charges on which Keat was convicted
[5] The charges on which Keat was convicted were as follows:
(a) Failing to comply with written orders (contrary to s 39(a) of the Act) in that, between November 2010 and January 2013, he failed to report to his commanding officer or manager that he was in a close personal relationship with the complainant (charge 1).
(b)Failing to comply with written orders (contrary to s 39(a) of the Act) in that, between November 2010 and January 2013, he failed to take the necessary action to ensure his unprofessional relationship with the complainant did not continue (charge 2).
(c) Omitting to do an act, such omission being likely to prejudice service discipline (contrary to s 73(1)(a) of the Act) in that, on about 11
November 2010, he omitted to disclose a close personal relationship with the complainant when questioned by the Vice Chief of the Defence Force, Rear Admiral Steer (VCDF), about whether he was having an affair with the complainant (charge 4).
(d) Using threatening, insulting or provocative language (contrary to s
43(b) of the Act) in that, on a date between 25 December 2011 and 1
January 2012, he said to the complainant “we have only had one round of IMPing and another one to come and there is still your daughter” and “I will mess with your family” or words to that effect
(charge 5).2
2 “IMPing” refers to the civilianisation of positions within the NZDF.
(e) Omitting to do an act, such omission being likely to prejudice service discipline (contrary to s 73(1)(a) of the Act) in that, on about 1
October 2012, when questioned by the Chief of the Defence Force, Lieutenant General Jones (CDF), about an allegation from the complainant that she was having a sexual relationship with Keat that was affecting her work, he failed to disclose that he was in a close personal relationship with her (charge 8).
[6] There were alternative charges in respect of charges 2 and 5 on which the Military Members of the Court Martial were not required to give a verdict (charges 3 and 6). Keat was found not guilty on a charge of doing an act likely to bring discredit upon the service (contrary to s 73(1)(b) of the Act). This charge alleged that Keat told the complainant in February 2012 not to disclose their relationship on her security clearance application otherwise he would ensure that she did not have her employment contract renewed (charge 7).
The Defence Force Order
[7] Relevant to charges 1, 2, 4 and 8 is Defence Force Order 3, Part 9, Chapter 5 (the DFO) which deals with “Professional Close Personal Relationships.” As stated in its introduction, the DFO “directs policy on the management of professional close personal relationships by members of the Armed Forces.” It does so by defining close personal relationships, defining what constitutes an unprofessional close personal relationship, and advising what management action is to be taken in response to such relationships. The stated intent of the DFO is “to ensure that members of the Armed Forces conduct their professional close personal relationships with other members of the NZDF (or contractors) in a manner that does not adversely affect the NZDF.”
[8] The term “close personal relationship” is defined for the purposes of the DFO
as follows:
The term ‘close personal relationship’ applies to any relationship between members of the Armed Forces, and between members of the Armed Forces and members of the Civil Staff or contractors, which:
(1) is a marriage
(2) is a civil union
(3) is a relationship recognised in accordance with DFO 3, Part 9, Chapter 9: Recognised Relationships.
(4) is a de facto relationship
(5) involves a strong emotional attachment and/or a sexual component, or
(6) is a family relationship as defined in these Orders, Part 1: Definitions.
[9] The term “unprofessional close personal relationship” is defined for the purposes of the DFO as follows:
The term ‘unprofessional close personal relationship’ applies to close personal relationships that involve, or give the appearance of involving and including but is not limited to:
(1) partiality
(2) preferential treatment
(3) favouritism, or
(4) improper use of rank and/or position.
Unprofessional close personal relationships may compromise or have the potential to compromise, the objectivity, credibility and integrity of leaders and thereby erode confidence in the chain of command or management as well as the cohesion, discipline and morale of the unit or branch.
[10] The DFO goes on to provide certain behaviours and relationships that are prohibited as well as to set out restrictions that apply to professional close personal relationships. It states that Commanding Officers (COs) and Managers are required to take reasonable steps to ensure that an unprofessional close personal relationship does not continue to have a detrimental effect on a unit or branch of the NZDF or on its reputation.
[11] Two articles of the DFO have particular relevance for present purposes. First, article 9.5.24(1) (which relates to charge 1) provides that:
Members of the Armed Forces are to:
(1) report close personal relationships through the normal chain of command
to CO(s)/manager(s). …
[12] Secondly, article 9.5.23 (which relates to charge 2) provides that:
COs and managers have a responsibility to maintain good order and discipline within their units or branches. They are to:
(1) be especially attentive to their own personal associations, ie leading by example
(2) ensure that all member of the Armed Forces under their command or management are aware of the policy contained in this Order
(3) provide guidance on what constitutes a professional relationship and what constitutes an unprofessional close personal relationship
(4) manage complaints and incidents of unprofessional close personal relationships in a discreet manner, and
(5) take the necessary action to ensure unprofessional close personal relationships do not continue.
The Act
[13] Relevant to charges 1 and 2 (failing to comply with written orders) is s 39(a)
of the Act which provides:
39 Failure to comply with written orders
Every person subject to this Act commits an offence, and is liable to imprisonment for a term not exceeding 2 years, who fails to comply with a lawful order of which he has knowledge or of which he could, with reasonable diligence, have had knowledge—
(a) being a Defence Force Order …
[14] Relevant to charges 4 and 8 (an omission which is likely to prejudice service discipline) is s 73 of the Act which provides:
73 Conduct prejudicial to service discipline
(1) Every person subject to this Act commits an offence, and is liable to imprisonment for a term not exceeding 2 years, who—
(a) does or omits any act that is likely to prejudice service discipline; or
(b) does or omits any act that is likely to bring discredit on the service of the Armed Forces to which he belongs or, if he is
attached to any such service, either to that service or to the service to which he belongs; or
...
(2) No person shall be charged with an offence against this section in respect of any act or omission that constitutes an offence against sections 23 to 72 or sections 74 to 77:
provided that if any person is charged with an offence against this section and is found guilty of the offence, the finding shall not be invalidated by reason only of the charge being in contravention of this subsection, unless it appears that injustice has been done to the person charged by reason of the contravention; but the conduct of the person laying any charge in contravention of this subsection shall not be vindicated by reason of that finding.
...
[15] Relevant to charge 5 (using threatening, insulting or provocative language) is s 43(b) of the Act which provides:
43 Fighting or causing a disturbance
Every person subject to this Act commits an offence, and is liable to imprisonment for a term not exceeding 3 months, who—
…
(b) uses threatening, insulting, or provocative language to any person not being an enemy;
…
Relevant time periods
[16] There are four time periods of relevance:
(a) Between November 2010 and January 2013, during which period it is alleged that Keat had a “close personal relationship” which needed to be disclosed and an “unprofessional close personal relationship” in respect of which steps were necessary to ensure it did not continue.
(b)On or about 11 November 2010, when the VCDF asked Keat if he was having an affair with the complainant.
(c) On a date between 25 December 2011 and 1 January 2012, when it is alleged a threatening, insulting or provocative telephone conversation with the complainant took place.
(d)On or about 1 October 2012, when the CDF questioned Keat about an allegation from the complainant.
The evidence
[17] Keat commenced service in 1976 as an Ordinary Seaman. He was commissioned on 5 January 1977. He held various positions and ranks in the ensuing years. The complainant was an employee of the NZDF from 2007.
2008: Auckland
[18] Keat and the complainant first met in 2008 in Auckland. At this time Keat was Captain of Fleet Personnel and Training based in Devonport. The complainant’s position at this time required her to be in Auckland on a regular basis. It is not in dispute that at this time and subsequently Keat and the complainant had sex. The evidence of Keat and the complainant, however, differed as to how they characterised their relationship and the period of time over which the sexual relationship continued.
[19] Keat says that from the outset he did not hide from the complainant that he was married. They had sex a few times when the complainant was in Auckland about which he felt guilty. The complainant said that she did not know initially that Keat was married and did not find out until some months later. She said that they would see each other for dinner two or three nights a week, that their relationship was physical, and that when she was not in Auckland they would ring each other two or three times per day.
December 2008 to January 2009: Wellington
[20] In December 2008 Keat returned to Wellington in preparation for a posting to Timor in February 2009. Keat said during this time he and the complainant did not have sex. His family was in Wellington and he saw his posting to Timor as a natural
time to bring an end to the sexual relationship with the complainant. The complainant said that it was at this time that she found out that he was married. She said that they maintained a “full-on physical relationship”. They had sex three or four times a week and they had “one last night” in January 2009 in Devonport before he left for Timor.
[21] Keat completed a security clearance form in February 2009. The form asked questions about various matters. There was no question on the form which specifically asked whether Keat was having an affair. Keat did not regard the affair as relevant to any of the questions on the form. He did not refer to it when
completing the form.3
February to August 2009: Timor
[22] Keat’s posting to Timor was from February to August 2009. According to the complainant, they maintained daily contact by telephone during this period. They also sent emails and she sent him four letters and he sent her two. Ms Musgrove is a long-time close friend of the complainant. She was aware of the relationship between the complainant and Keat because the complainant told her about it when it began in 2008. She gave evidence of having read a letter sent by Keat to the complainant in 2009 when he was in Timor which she described as “risqué” and “very intimate”.
[23] Keat accepted that during this period he maintained contact with the complainant through emails, occasional text messages and phone calls. He said that this was mostly to discuss human resource issues. He did not recall getting letters from the complainant and did not send her personal or intimate letters. He did send her a “newsletter” which he also sent to others. He received an email in March 2009 from the complainant, who was upset that Keat had been in contact with his executive assistant and not her, and saying that she was sick of being used by Keat
and that he could “go do it to someone else”.
3 Keat was clear that he had never lied in any security clearance that he was required to complete because no question asked anything that covered his relationship with the complainant. His security clearance from February 2009 was produced. We have reviewed it and agree that it does not ask any question specifically directed to a close personal relationship which is not in the nature of spouse, de facto partner or other partner.
[24] Keat returned to New Zealand for a week or two on mid-tour leave (presumably in or about May 2009). According to the complainant they saw each other almost every day during this break. She described their relationship as “more intense” at this point. She and her daughter went to Ohakea to see him off when he left for Timor again. Keat, on the other hand, was not sure whether he saw the complainant during this mid-tour leave. He accepted that the complainant came with her daughter to see him when he left from Ohakea. He denied that he had asked her to come.
September 2009 to March 2010: return from Timor
[25] When Keat returned from Timor he assumed the role of Assistant Chief of Strategic Commitments. By this time the complainant was appointed project leader of the R5 project. This project was part of the rationalising and downsizing of the NZDF. Because there was resistance to the changes to be made under this project, the complainant directly reported to the Assistant Chief of Personnel (AC Pers) who at this time was Brigadier Mark Wheeler (the Brigadier).
[26] It is not in dispute that a sexual relationship resumed on Keat’s return from Timor. The complainant said that during this period Keat would often ring her to meet for drinks or dinners or come to her place and their physical relationship continued. Keat described their contact as “irregular” and that they had sex three or four times following his return from Timor. He accepted that he visited her house once or twice, typically on weekends around his other plans (such as shopping or taking his children to sport) but that this ceased in November 2009 which was around the time he became aware that she had a partner. He was unsure how to describe their relationship but considered it to be “in the nature of a friendship”. He said that the complainant described it as a “fling” because of the sexual part of their relationship.
[27] According to Keat, their sexual relationship ended in March 2010. On one occasion he was in Christchurch for a symposium. He said that he was intoxicated and asleep after a night of socialising with other symposium participants. He said that the complainant arrived and he went with her to her motel and had sex with her.
Not long after this he was in Auckland and the complainant happened to be there as well. They had sex again which she described as a “final fling”, but he later realised that she did not intend it to be the final fling. He said that after this they were “friends at best”. The complainant did not specifically refer to these two encounters except to say, without reference to dates or occasions, that they would meet outside Wellington, including in Christchurch and Auckland. She said that they would stay in separate accommodation but that he would often come to hers. She said that the sexual relationship continued throughout 2010 and up until December 2012.
[28] Evidence was called from Mrs Green, a civilian staff member of the NZDF between 2009 and 2013. Mrs Green worked in the vicinity of the complainant. She first became aware that there might be something between the complainant and Keat sometime in 2010 when she saw the complainant talking to Keat outside Defence House. When the complainant returned to her office she said to Mrs Green “isn’t my man handsome”. This was the only time she saw them together.
September to November 2010: AC Pers appointment
[29] In September 2010 Keat was asked if he was interested in the AC Pers role. The AC Pers is responsible for advising on all policy and practical matters related to human resourcing for both military and civilian arms of the NZDF, including selection, recruitment, training, support, remuneration and discipline. The formal posting notice was given on 1 October 2010. Keat was on leave in October and formally took over the role on 8 November 2010.
[30] Keat did not recall whether he told the complainant about his new role before it was officially announced. He thought that it was unlikely although he might have done so, and several people knew about the appointment before the formal notice. The complainant said that Keat told her about his new role, which would mean that he would be her boss, and that Keat said it would not be a problem.
[31] Shelly Thompson, the senior Human Resources Advisor at the time, gave evidence. She said that she learned from the complainant that Keat was to be appointed AC Pers. She was aware of rumours about the relationship between Keat and the complainant. She considered it inappropriate that the complainant had
advance knowledge of the appointment. She discussed this with Don Edwards, a senior policy advisor, and the Brigadier. She thought this conversation occurred after the appointment was made but before Keat formally took up the role.
[32] Brigadier Wheeler also gave evidence. He recalled that in September 2010 he was approached by Mr Edwards and Mrs Thompson and told that Keat was replacing him as AC Pers. This was how he first learned that he was being replaced as AC Pers. He was asked by Mrs Thompson and Mr Edwards if he knew that it was likely that Keat was in a relationship with someone who would be a direct report, namely the complainant. He said that after this conversation he started to notice some things, and he formed the view that there was certainly a strong friendship between Keat and the complainant. He contemplated what he should do about it and took legal advice.
[33] One of the actions taken by Brigadier Wheeler was moving the complainant’s direct report from AC Pers to Mrs Thompson. He also decided to confront Keat about his relationship with the complainant. The Brigadier recalled his conversation with Keat as taking place on the first day of the hand-over, which was 8 November
2010. He asked if Keat was aware that the role required him to uphold the ethos and values of the NZDF and he went on to ask Keat if he was in a sexual relationship with the complainant. Keat asked him where he had got this information from and he denied that he was in a sexual relationship with the complainant.
[34] Keat recalled Brigadier Wheeler confronting him about the relationship. Keat thought this occurred on 21 September 2010 (that is, before he took up the role) rather than on 8 November 2010 (his first day in the role). This was the first time Keat became aware of rumours about the relationship. He asked the Brigadier where the rumours were coming from and was told that Don Wills had been the source. Keat said that he was not in a sexual relationship with the complainant. He gave evidence that this was not a lie, because by this time they were no longer sleeping together.
[35] At this time Mr Wills was the personnel staff officer for Brigadier Wheeler. He gave evidence. He said that he had known the complainant since 2007 and that
they were friends. Mr Wills was aware from the complainant that she had gone back to Keat’s house after a dinner in Auckland in 2008. Mr Wills sometimes travelled to work with the complainant and she would have conversations with Keat on speakerphone which Mr Wills would hear. The conversations often involved conflict between them but sometimes they were more relaxed and they would make arrangements to meet, including once in a hotel room overnight.
[36] Mr Wills said that prior to Keat’s appointment as AC Pers, Brigadier Wheeler asked him if he knew whether Keat and the complainant were in a relationship. Mr Wills said that he was not sure of the exact nature of the relationship. He did not raise any concerns with the Brigadier but did say to the complainant that it would not be good to have a personal relationship with her boss.
[37] The complainant did not refer to this discussion with Mr Wills. Her evidence was that Brigadier Wheeler told her that Keat was to be appointed as AC Pers and that he was aware of the close relationship between her and Keat. She said that Keat told her that the Brigadier had spoken to him about their affair and that Keat told her
to lie to the Brigadier as he had, and because he had lied on his security clearance.4
She said that when the Brigadier asked her about the relationship she denied it. She said that, on Keat’s instructions also, she went back to see the Brigadier the next day and asked him what would happen. She was upset and the Brigadier told her not to worry about it. She said that he put his hand on her knee to comfort her.
[38] Brigadier Wheeler did not recall any conversation with the complainant about the relationship and thought it was highly unlikely that it happened. He did not believe he touched her to comfort her and would be “amazed” if he had done so. He said that his focus was on Keat rather than the complainant.
[39] Mrs Thompson thought that Brigadier Wheeler had confronted the complainant about the relationship. She was not present during any meeting when this occurred, but she recalled the Brigadier telling her that the complainant had
stormed into his office and that they had a heated and difficult conversation.
4 See [21] and footnote 3 above for Keat’s evidence that the security clearance form did not
require disclosure of the relationship.
Mrs Thompson did not say that the Brigadier told her about the subject of the conversation.5 Soon after this Mrs Thompson said that she had a conversation with the complainant. She tried to explain to her where the Brigadier was coming from in terms of putting some distance in place between her and Keat when Keat took over the AC Pers role.
[40] Brigadier Wheeler recalled that on 9 November 2010 he informed VCDF Steer of his concerns about the relationship between Keat and the complainant. He recalled raising this at the end of a meeting about another matter. The VCDF asked what he had done about the matter and he said that he had confronted Keat.
[41] VCDF Steer gave evidence. He recalled approaching Brigadier Wheeler rather than the other way around. He had heard the Brigadier was conducting an investigation about Keat and the complainant and wanted to see what it was about. He could not recall how he had heard about the investigation, but he had not heard it from Keat. Brigadier Wheeler told him that he was conducting an inquiry into whether Keat and the complainant were having an affair. He asked what prompted the investigation, and the Brigadier replied that it was “based on things that had been seen, they were having cups of coffee together a lot, that was largely it”. The VCDF replied that this was not much on which to conduct an inquiry.
[42] After this conversation VCDF Steer approached Keat. He recalled this conversation taking place before Keat took over as AC Pers. The VCDF could not recall his exact words, but he said something like “are you having an affair with her”, to which Keat responded “no”. This was the only discussion he had with Keat about any relationship with the complainant. The VCDF took no further action after this because he understood Brigadier Wheeler was investigating the matter. When he did not hear anything else, he assumed the issue had gone away, although he never saw a formal report.
[43] Keat did not recall this conversation with the VCDF but did not dispute the
VCDF’s evidence about it. The complainant’s evidence was that Keat told her that
5 If Brigadier Wheeler’s recollection that he did not ask the complainant about her relationship is correct, it is possible that the meeting Mrs Thompson saw concerned the change in reporting lines from the AC Pers to Mrs Thompson.
the VCDF had asked him if they were having an affair. She suggested to Keat that he should be upfront about it but Keat insisted on keeping it quiet because he had not disclosed the affair on his security clearance.6 She said that Keat told her to convince the VCDF that there was no relationship. She confirmed to VCDF Steer that there was no affair. The VCDF, however, did not recall being approached by the complainant about the matter and could not recall any discussion with her about the relationship with Keat. He gave evidence that any such conversation would have caused “alarm bells to ring” for him.
[44] On 10 November 2010 Keat attained the rank of Commodore. This was a few days after Keat assumed the role of AC Pers. At this stage the R5 project was expected to be completed in six to eight months.7
[45] Mrs Thompson found that her relationship with Keat as AC Pers was strained from the start. She was aware that Keat knew she had discussed the relationship with Brigadier Wheeler and she felt that this might have contributed to the tension between her and Keat. By about early December 2010 she decided to raise this with Keat. Keat told her that he understood she had told the Brigadier that he was having a sexual relationship with the complainant. She explained that she had not said this because she did not have any evidence of that. She explained that she was aware of rumours which she thought she needed to bring to the Brigadier’s attention so that appropriate measures could be put in place to deal with perceptions in the branch. Keat told her that he was not in a sexual relationship with the complainant but that they had developed a friendship. He told her that he did not see it as a big issue because the complainant would not be dealing with him on a day-to-day basis.
December 2010: motel encounter
[46] By December 2010 Keat said that he had no sexual thoughts or feelings about the complainant. He said there was some tension in their relationship but that their
relationship was “in the nature at best, of friends.”
6 See [21] and footnote 3 above for Keat’s evidence that the security clearance form did not
require him to disclose the relationship with the complainant.
7 In fact it took about another year, and after that the complainant stayed on and reported to
Mrs Thompson.
[47] Keat said that their final encounter of a vaguely sexual nature occurred in December 2010 when they were both in Palmerston North. The complainant telephoned Keat and arranged to see him at her motel. He said that after they had talked for a while the complainant “dived” on to the bedsit, they embraced, and she said something about doing it for “old times’ sake”. However he had no interest in sexual activity with her and left. Keat described this incident differently when he was interviewed by the Military Police on 28 March 2013. At this time he said that the complainant telephoned him after dinner. He went down the road to her motel to see her. He said “we did get into bed and this is kind of a bit embarrassing, performance issue on my part so that’s the last time, the peg in the sand …”.
[48] As noted above, the complainant was not specific about dates but said that she and Keat would occasionally meet outside of Wellington when their commitments coincided.8 Palmerston North was one of the places to which she referred. She said that, although their relationship continued, she was beginning to see another side of Keat. She found Keat unresponsive to her work requests compared with Brigadier Wheeler. Her evidence was that in December 2010 she decided to resign. Mr Wills gave evidence that the complainant told him she was thinking of resigning at this time. The complainant’s evidence was that she gave
Keat a letter of resignation in December 2010 but Keat tore it up and told her that they could work through it. Keat’s evidence was that he had never seen the resignation letter and the complainant had never given it to him. He noted that he had been in the job only five weeks at the time she allegedly gave him the letter, and that he was away from the office for two of those five weeks.
2011
[49] After December 2010, Keat said that the complainant wanted the relationship to continue. She would talk of having a “final fling”. She would ask for rides to work and coffee meetings, and she would often call and text him. He attributed the increase in these activities to their dwindling face-to-face contact. He would give her rides and have coffees with her and respond to her calls and texts. He said that
the complainant became increasingly difficult as she realised that the sexual
8 See [27] above.
relationship was over. She accused him of sleeping with someone else and threatened to speak to his wife. He did not report this to anyone because he felt he could manage the situation and because the R5 project was winding down. The complainant would say that they were “just friends” and so he thought they were on the same page, although she was difficult at times.
[50] According to the complainant their sexual relationship continued throughout
2011. She said that their personal relationship became more intense. Keat would often park in her driveway at night without getting out and then he would leave. She said that Keat would deny doing this when she asked him about it. She said that their relationship had soured but that he would still often turn up at her house even if she did not respond to his text messages. She said that he often arrived for a “ten minute quickie” before driving her to work and that he would drop her off at the corner in front of Old St Paul’s so that no-one would see them together. He would often take her home as well and pick her up by the cathedral. She felt she had no choice about their relationship at this time because she was owed back pay and was concerned that she would not get it.
[51] At the hearing a printout log of texts and calls made between Keat’s and the complainant’s cellphones for the period April 2011 to January 2013 was produced. The log showed the time of each contact and its duration but not the content of any text messages. It showed multiple contacts between the two phones, both ways, on an almost daily basis and often several times a day, including late at night and on weekends. Keat was asked about this contact when interviewed by the Military Police prior to the charges being brought. He said that despite this degree of contact he would not describe their relationship as strong. He said that they were still friends but he was on the “receiving end” of messages and calls that were “quite abusive”. He said that some of the long calls were about work. He requested that the Military Police obtain the actual content of the texts. This was not done.
[52] The degree of telephone contact was noticed by Margaret Glass, a civilian employee with the NZDF. In 2011 Ms Glass was working in a role which provided administrative support to the Pers branch. In this role, sometime in mid-2011, she
saw Keat’s mobile phone bill and assumed from the degree of contact between Keat and the complainant that they were in a relationship of some kind.
[53] Mrs Green said that the complainant talked about the relationship a lot and exuded power because of it. The complainant would drop the AC Pers title in conversation. Mrs Green found the complainant to be intimidating and dangerous. She said that the affair between the complainant and Keat was “widely talked about” (although Mrs Green was not asked when this was). Mrs Green gave evidence that she witnessed the complainant on the phone with someone whom she surmised was Keat. She said the complainant became aggressive if he could not drop everything for her, or if she wanted to know what time he was going home so that she could get a ride. She also witnessed phone calls by the complainant to Keat’s executive assistant asking where Keat was. She did not give a time period for when she made these observations.
[54] Mrs Thompson was told by the complainant that Keat gave her rides to work most days. She raised this with Keat, who denied it, but she saw him drop the complainant off on Pipitea Street or by Old St. Paul’s. She does not say when this occurred.
[55] Ms Glass gave evidence that towards the end of 2011 she saw the complainant in the passenger seat of Keat’s car. This was in Mulgrave Street at about 7 am. She noticed that the complainant’s shoulders were turned towards Keat. She could not see what Keat was doing. She saw the complainant get out of the car and then Keat drive into the Defence House car park. She was shocked by this and immediately told a friend who in turn told the complainant. This led to the complainant telling Ms Glass that she and Keat had been in a personal relationship for about five years. She asked Ms Glass to keep it confidential. Ms Glass did not see why she had to do so. The complainant responded that the VCDF already knew about the relationship. Ms Glass found the complainant to be intimidating during this conversation.
[56] Not long after this, Ms Glass observed the complainant confront another employee in a way that Ms Glass regarded to be bullying and inappropriate. Ms
Glass made a formal complaint about this. The complainant confronted her, and reminded her that the complainant had not yet “remunerated her [Ms Glass’] position.” Ms Glass felt threatened and intimidated and believed the complainant was “intoxicated” with power from her relationship with Keat. In contrast, she found Keat in “no way shape or form” to be “anything other than professional” in the workplace.
[57] There was also evidence from Ms Bulman. She was the executive assistant to the AC Pers and would put calls through to Keat. She would normally announce who was calling but she did not announce the complainant’s calls because of their frequency, which could be five or more times a day. She said that Keat always took her calls and that they would talk for five to 20 minutes or longer. She said that Keat would speak to her very quietly, and that he would have his head between his legs while sitting at his desk which Ms Bulman thought was so that his conversation could not be heard by others. Ms Bulman said that the complainant would visit Keat quite a bit and did not make appointments. If Ms Bulman could not find Keat she would call the complainant and Keat would be back within five minutes or so if he was with her.
[58] Mrs Thompson said that the complainant would go directly to Keat on work matters, although this was not what was meant to happen. She thought that Keat tried to distance himself in these matters but that this did not always happen. Mrs Thompson said that Keat told her that he had asked the complainant not to come to his office. Mrs Thompson felt Keat did not want to create conflict with the complainant. Mrs Thompson also said the complainant would drop Keat’s name into conversations or mention that she had discussed things with him. She seemed to know about upcoming appointments before they were announced. Mrs Thompson tried raising her concerns with Keat but found that these would then be relayed to the complainant. She said the complainant portrayed the relationship as being a sexual one.
[59] Keat accepted that there was tension in his working relationship with the complainant after he became AC Pers. Keat said that the complainant would raise matters with him which he would say should be directed to Mrs Thompson. He
would also make sure that Mrs Thompson was aware of those matters. He was unaware that this was causing issues. He denied telling the complainant sensitive information and said that he was scrupulously careful with sensitive information.
[60] More generally there was evidence before the Court of particular incidents where witnesses found the complainant to be intimidating and bullying, or where she would use her relationship with Keat to give her power over them. In contrast, the witnesses considered Keat to be polite and professional in his dealings with them.
December 2011: telephone call
[61] In late December 2011, sometime after Christmas and before New Year, the complainant and her daughter went to Blenheim to see Ms Musgrove. The three of them were in a motel together. The complainant said that she spoke with Keat on her work phone which she put on speaker. She could not remember who made the call. She told Keat that the relationship was over and that if he did not leave her alone she would go to his wife. He responded that if she touched his family, he would touch hers and said “you’ve still got your daughter and another round of IMPing to go.” They had a screaming match. After this, their physical relationship continued but she described it as blackmail.
[62] The complainant’s daughter gave evidence about the call. She could not remember who made the call. She confirmed that the call was on speaker and that it was common for her mother to have her phone on speaker. She could not recall the exact words Keat had used, but took him to mean that there was a second round of IMPing and that her job was on the line. She ran out of the room and was found by Ms Musgrove. After this she heard nothing more from her mother about Keat until it “all blew up” in January 2013.
[63] Ms Musgrove’s evidence was that Keat called the complainant and that the complainant put the call on speakerphone. The conversation was very heated. Ms Musgrove could not recall the exact words used. She recalled the complainant saying things like “this is over”, she “wanted a clean slate”, “let’s move on” and that Keat should not be doing this because of his job. She recalled that Keat asked the complainant if she wanted to keep her job and made reference to her family and to
upcoming redundancies. Ms Musgrove understood this to be a reference to the complainant’s daughter. She recalled being shocked by the tone of Keat’s voice and his threat. She said that the complainant’s daughter ran out of the room crying. Ms Musgrove followed her to console her. About half an hour later the complainant’s daughter came back into the room and was “really quite hysterical” and shouted at her mother for “having it off with a married man”. Ms Musgrove told the complainant that she needed to get out of the relationship but the complainant said that her and her daughter’s jobs were in jeopardy.
[64] Keat accepted that there may have been a heated call at this time. He remembered the complainant making threats to tell his wife about the relationship which would have made him angry. He denied that he made threats about the complainant’s daughter’s job. He did know that the daughter was in the Army, had been in the Army for a long time, that a second round of civilianisation was pending, and any threat to the complainant’s job would have been significant.
[65] The phone log which was produced at the hearing showed:
(a) a text from Keat to the complainant on 22 December 2011 and then a call from the complainant to Keat for 77.5 minutes on the same date;
(b) a text from Keat to the complainant and one from her to him on 23
December 2011;
(c) a text from Keat to the complainant on 25 December 2011;
(d)texts and calls from the complainant on 26, 27 and 28 December 2011 and then a series of texts from Keat to the complainant on 28
December 2011;
(e) two calls from the complainant to Keat on 29 December 2011, one at
17.20.10 for 20 minutes and another at 17.40.49 for 15.9 minutes,9
and a text from the complainant to Keat at 17.59.51.
9 Shane Huston gave evidence that one long text message would be logged as several messages in
[66] The complainant was unable to identify which phone call was likely to have been the one at the motel.
Subsequent events
[67] Acting Brigadier Howard Duffy (AB Duffy) arrived at the Defence Personnel Executive (DPE) at the beginning of 2012. He did not regularly see the complainant go into Keat’s office. He described such an event as “rare”.
[68] Two letters written by the complainant to Keat were produced in evidence. These letters are undated. Keat said that he received them in March 2012 prior to leaving for Tokyo. The complainant thought they may have been written in the earlier part of 2012.
[69] One of these letters begins with “Happy Travel”. In this letter the complainant says that this is “the first day of the new phase of us”. She makes comments indicative of previous sexual interactions, apologises for her behaviour, says that she appreciated Keat’s visit on Saturday and that she thinks that “what we had and what we can have again is worth working for”.
[70] In the other letter the complainant indicates that Keat will be reading this on Wednesday if he has noted the day on the envelope. She makes general friendly chit chat about everyday matters and also talks of scheduling some “our time” on Keat’s return even if it is only for an hour or two one evening on Keat’s way home from work. This letter also makes some sexual innuendoes and says that Keat “could think of all the fantastic satisfaction we once shared and can share again in the future”. In the letter she also says “[d]on’t forget this is the new us”.
[71] According to the complainant she wrote these letters to Keat at his request and because she needed to think about her job. She denied they were an attempt by her to rekindle a lost romance. She said that she had to “calibrate their tone”. Mrs
Green’s evidence was that the complainant told her that she had been writing letters
quick succession. However he does not suggest that the same would be the case for phone calls.
for Keat, to take away so that he would have one to read every day. Mrs Green thought this was in about September or October 2012.
[72] Keat denied requesting that the complainant write letters to him. He said he kept the letters because the complainant’s vehemence was increasing and he thought he needed to keep records of her behaviour. He said the complainant knew he was no longer sexually interested in her and that this caused her to become increasingly aggressive. He continued to manage the situation with an occasional coffee and with the rides to work, but the contact from her increased “three-fold”. He said the text messages were generally “normal friendly type texts” but “the far majority increasingly became more and more vehement”. Keat said there was never a “strong emotional attachment” and once the sexual relationship ended “it was over”. He took the path of least resistance with the complainant, waiting out for when her position at NZDF would come to an end.
[73] On 22 September 2012 the complainant went to Ballentynes in Upper Hutt. Keat’s wife worked at that store every second Saturday. A Ballentynes receipt records that on this occasion the complainant purchased two dresses and a bolero and that she was served by Mrs Keat. The complainant’s evidence was that she did not recognise Mrs Keat. Mrs Keat did not recall this particular incident.
[74] On 3 October 2012 there was an exchange of text messages between the two which Keat copied into a document that he produced at the hearing. Keat had missed a call on his mobile and texted the complainant to check whether the call had come from her, and that if it had, then he was sorry he missed it. He suggested she call back and that he would still be at work until about 1 am but that he had no desire for “ongoing engagement of the type received this evening” (apparently in reference to an earlier allegation she had made about him and another employee). The complainant expressed surprise that he wanted her to ring him at home and speculated that Keat had either told his wife “about us” or that he was home alone. Keat replied that he did not want her to call him at home, accused her of threatening him, and asked her to leave him and his family alone.
[75] When asked at the hearing about this exchange, Keat said that he did not see the need to report the relationship to his superiors because he knew how to manage things, and because the complainant never delivered on her threats. The complainant said that these text messages only showed one side of the story. She said that these messages were sent after her meeting with the CDF10 and that Keat was setting her up because of that meeting.
[76] Ms Musgrove gave evidence of being in a mall in Upper Hutt with the complainant when Keat approached them. She said that this was in October 2012. Keat had a welcoming smile and made a gesture of greeting toward them. She left the complainant to talk with Keat in private. After this conversation the complainant was upset. They went to another mall where Keat also turned up. The complainant
and Ms Musgrove left because the complainant was still very upset.11
[77] According to Mrs Green, sometime in October 2012 the complainant told her that she was leaving work early because she had a very important meeting with the CDF the next day. The next morning the complainant said to Mrs Green “now let people talk about Kevin and I. CDF knows and he’s okay about it.” The complainant told Mrs Green that the CDF said that “this must be a genuine relationship”. She implied that Keat would be moved to a new position. Mrs Green was disappointed to hear this because she did not like to think the CDF would be as blasé about the matter as the complainant made him out to be.
[78] The complainant’s evidence was that her meeting with the CDF was because of her security clearance renewal. The complainant was issued a security clearance in 2007. It was to be renewed in February or March 2012, but she obtained an extension until October 2012.12 The complainant did not want to lie on her renewal application. For this reason she went to see CDF Jones. She told him that she had lied to VCDF Steer and to Brigadier Wheeler and countless other people about her
relationship with Keat.
10 See [79]-[80] below.
11 Neither the complainant nor Keat were asked about this when they gave evidence.
12 No evidence was produced about what needed to be included in the complainant’s security clearance. The security clearance completed by Keat did not specifically request disclosure of “close personal relationships”. See [21] and footnote 3 above.
[79] CDF Jones gave evidence about this meeting, which took place in his office in October 2012. He could not recall the precise date of the meeting. He did not know what it was to be about in advance. He had met with the complainant only once before about a work issue. The CDF said that the complainant was in an agitated state. She told him that she needed to make a confession, that she was having an affair, and that she was raising the issue now because the pressure was too much for her. It was starting to affect her work and she had been asked to conceal it from an upcoming security assessment. She said that the affair had been going on “for some time”. She mentioned Brigadier Wheeler’s investigation prior to Keat’s appointment as AC Pers. She stated that she had had access to the Brigadier on a weekly basis, but that Keat kept her at arm’s length because of their relationship.
[80] The CDF told her that having a relationship with another member of the NZDF is not illegal but that it was intolerable to let it affect the work environment, and that it accordingly should not be kept secret. He explained to her that there needs to be trust in the command hierarchy and no favouritism, and that people should not feel that they could be advantaged through sexual relationships. He also told her that she must not lie on any security assessment. The CDF said that the complainant and Keat needed to discuss where the affair was going, and either to end it or have it out in the open. The CDF said that the complainant seemed reassured, but that she was nervous about the CDF speaking to Keat, because she had not warned Keat about the action she had taken.
[81] CDF Jones’ evidence was that he spoke with Keat about a week after his meeting with the complainant. He had tried to speak with Keat earlier but Keat was away. He informed Keat that the complainant had told him that they were “having an affair”, and that she felt it was affecting her ability to do her work. Keat replied that the affair was over, and had been over for some time. The CDF noted that they needed to resolve the situation between them given the difference of opinion. They also briefly discussed the awkwardness of being in both a personal and a command relationship with someone else, and how the NZDF tries to avoid this. The CDF asked Keat if he had asked the complainant to lie on her security clearance and Keat denied doing so.
[82] CDF Jones said that he accepted what Keat told him at the time, but he stressed to Keat that he considered there to be “quite a dangerous difference of opinion” on the affair. He told Keat that they needed to resolve what they were going to do, because it may mean a posting of one or the other, or a “move out”, or even just an accommodation as to how the situation could be managed without favouritism in the process.
[83] Keat’s evidence about this was that he was absolutely sure that he never discussed security clearances with the complainant and he did not know that hers was overdue. He learned that the complainant had been to see the CDF because she called him in Auckland to tell him. Keat said that when the CDF spoke with him the CDF did not question him but rather told him what the complainant had said. Keat denied that he was having an affair with the complainant. He did not tell the CDF that the complainant was making threats because he believed he was managing the situation. He considered that it was not affecting his work in any way and his only concern was for his wife.
[84] CDF Jones’ evidence was that he briefed the VCDF about his meetings with Keat and the complainant “so that he was aware and therefore could monitor what the result of it actually might be”. He also told the complainant in a brief conversation that he had met with Keat, that there was a slight difference of opinion on the nature of the relationship and that he had asked Keat to speak to her on the matter.
[85] On 7 November 2012 at 5.36 pm the complainant went back to Ballentynes at Upper Hutt and purchased two boleros and two tops. On this occasion she was served by Mrs Keat’s manager. This transaction was recorded on a Ballentynes receipt. Another receipt shows that the two tops purchased in that transaction were returned to the Kilbirnie branch of Ballentynes on 10 November 2012 at 2.07 pm, apparently by someone other than the complainant on her behalf.
[86] That is because on that same day (10 November 2012), at 2.21 pm, a further receipt shows that the complainant purchased two dresses at the Upper Hutt branch. It records that on this occasion she was served by Mrs Keat. Mrs Keat recalls that
she served the complainant and her friend. She did so because she understood that the two women had annoyed the manager by wanting to be served on 7 November
2012 when the shop was closing. When Mrs Keat was helping the complainant, the complainant mentioned that she worked in Government. Mrs Keat noticed the complainant’s name which was identified by her “loyalty club” status with the store. Mrs Keat recognised the name as belonging to someone who her husband told her had been giving him problems at work. At this stage Mrs Keat did not know that there had been any relationship between them.
[87] On 10 November 2012 at 2.47 pm the complainant sent Keat a text message saying that “[y]ou should ring me as have spoken to wife and daughter both in the shop”. Keat’s evidence about this message was that he was shocked but figured the complainant was making an empty threat. The complainant’s evidence was that she shopped at Ballentynes Upper Hutt every fortnight and it was Keat’s wife that came up to her. She said she sent this text message because “she did not want anything to have to come out about anything, if he put his foot in it”. She does not suggest that she said anything to Mrs Keat which would give rise to any such risk.
[88] A fortnight later, on 24 November 2012 (a day that Mrs Keat would have been working), the complainant returned one of the boleros she had purchased earlier. She also returned a dress. She was not served by Mrs Keat on this occasion.
[89] The complainant said that her last physical encounter with Keat was in
December 2012. She had no contact with him over the December 2012 to January
2013 period. She said that Keat tried to contact her but she refused to respond to his calls.
[90] There was an argument between Keat and the complainant on the morning of
24 January 2013. Keat said that the complainant approached him to discuss a work matter but then began making allegations that he was trying to get rid of her and was not allowing her to receive back pay. The complainant yelled at Keat and told him not to leave the room. She told Keat that she was going to make a complaint against him.
[91] Ms Bulman (who said that she also witnessed arguments between Keat and the complainant in late 2012) witnessed part of the argument on 24 January 2013. Ms Bulman said that the complainant came to the office in a very angry state. She had a conversation with Keat in a meeting room and said “if you walk away I’m going to complain about you or take this to the VCDF” or words to that effect.
[92] AB Duffy also saw this argument. He and Keat were about to go to a meeting. He confirmed that the complainant seemed to be the aggressor and that she tried to continue the conversation even though Keat was trying to leave. AB Duffy ended up going to the meeting by himself. Keat arrived 10 to 15 minutes later. After the meeting AB Duffy and Keat had a discussion along the lines of “what the hell was that all about”.
[93] The next day Keat gave the complainant a ride to work. She did not tell Keat she was going to make a complaint that day. Later in the day he learned from her that she had made a bullying and harassment complaint against him, and that VCDF General Keating and Chief Operating Officer William Peet would be looking into it. Later that day he was called into COO Peet’s office and formally told of the complaint. He was suspended on 8 February 2013. He received a text message from the complainant at around this time but did not respond to it.
[94] The complainant’s evidence is that after having an argument with Keat she met with the VCDF on two occasions (during which she discussed the matters that formed the basis of the charges against him). She said that in between these two meetings, she had a private meeting with Keat during which he gave her a cuddle and asked her to start afresh. They had a long conversation by telephone and a meeting after this to discuss “betrayal”.
[95] A Ballentynes receipt records that on 22 May 2013 the complainant purchased a coat and a jumper while Mrs Keat was working at the store. Mrs Keat said that the complainant gave her a big smile and said “hi Jo, didn’t recognise you” and talked like they were old friends. Mrs Keat found this interaction to be creepy. Mrs Keat told her manager that this was the woman at the centre of her ordeal. Mrs Keat went out the back while her manager served the complainant.
[96] On 24 August 2013 there was a confrontation in Ballentynes involving the complainant. Mrs Keat said that she saw the complainant come into the store and so she initially left another employee, Mrs Restall, to deal with her. When the complainant was at the counter Mrs Keat said to her “you’ve got a bloody cheek coming in here.” The complainant acted like she did not know Mrs Keat and Mrs Keat went to the back room. Mrs Keat feared she may have gotten the wrong person and had an anxiety attack. Some minutes later Mrs Restall told Mrs Keat that the complainant wanted an apology. Mrs Keat said she was not allowed to speak to her for legal reasons.
[97] Mrs Restall confirmed Mrs Keat’s account. She said that when Mrs Keat went out to the back room the complainant said that she did not know who this woman was and why she was being abused by her. The complainant became louder and said she was making an official complaint to Head Office. She demanded an apology. Mrs Restall apologised on behalf of Ballentynes but said she could not force Mrs Keat to apologise to her.
[98] The complainant wrote a letter of complaint to the Ballentynes Head Office. In her evidence the complainant denied that she told the duty manager that she did not know Mrs Keat nor understand what all the fuss was about.
Charge 1 (failing to comply with orders): mens rea
The charge
[99] Charge 1 was as follows:
FAILING TO COMPLY WITH WRITTEN ORDERS CONTRARY TO SECTION 39(a) OF THE ARMED FORCES DISCIPLINE ACT 1971
in that he, at Wellington between November 2010 and January 2013, failed to report to his Commanding Officer (CO) or Manager that he was in a close personal relationship with [the complainant], a member of the Civil Staff who worked under his management, contrary to DFO 3 part 9 chapter 5, article 9.5.24(1), which states in part:
Members of the Armed Forces are to:
(1) report close personal relationships through the normal chain of command to CO(s)/manager(s)
[100] There is no issue that the offence requires proof of a “close professional relationship” and proof that Keat failed to report it. The issue is as to the mental element required.
Some general principles
[101] The essential ingredients of an offence are found in the legislative provision creating it. However the provision may require interpretation and further ingredients are sometimes implied by common law principles.13 Some provisions expressly provide the mental element required for an offence. In other cases the courts must determine the required mental element. In that situation the usual rule is that mens rea is to be implied as an element of an offence unless there is sufficient reason to the contrary.14 The mens rea required will usually extend to all ingredients of the offence.15
[102] It is always for the prosecution to prove the guilt of a defendant beyond reasonable doubt. This applies to both the actus reus and mens rea elements of an offence. It also means that the prosecution must negative beyond reasonable doubt any specific justification or excuse properly raised by the evidence. A trial judge must direct the jury on all the elements of an offence unless an element has been expressly conceded by the defence.16 This is required even if there is no real address
to the jury from the defence.17
[103] It does not matter whether evidence of any justification or excuse has been called or relied on by the defence.18 The prosecution will be required to negative a defence and the trial judge will be required to direct upon it if there is evidence before the court which raises the issue. A defence is in issue if the evidence provides
a credible or plausible narrative such that a properly instructed jury could reasonably
13 Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [CA20.08].
14 At [CA20.13].
15 At [CA20.13].
16 R v Batt CA47/00, 3 August 2000 at [32]; Kirby v R [2013] NZCA 451 at [51]-[52].
17 R v Doctor CA202/03, 21 October 2003 at [10]-[11].
18 See, for example, R v Tavete [1988] 1 NZLR 428 (CA) holding that the trial judge was required to direct on self-defence on a charge of murder where there was evidence which could lead the jury to entertain this as a reasonable possibility, even though the defence had expressly disavowed this defence.
conclude in favour of the defendant.19 Matters of defence, which the prosecution must negative if there is a credible narrative that puts a defence in issue, include where the mens rea of an offence is implied rather than specifically required by the provision creating the offence.20
[104] The charge of assault provides an example of this point. The statutory definition of assault does not refer to consent. However, where the issue arises on the evidence, the Crown must prove that there is no consent and that the defendant did not believe that the complainant consented, and the Judge will need to direct upon it.21
[105] Therefore, if it is an element of s 39(a) of the Act that a defendant know that by their actions he or she is failing to comply with a lawful order, and if there was a credible narrative that the defendant did not know that he or she was failing to comply with the order, then it is for the prosecution to prove that the defendant had this knowledge and it is necessary that the judge direct upon it. This is so regardless of whether absence of knowledge has been put in issue expressly by the defence.
[106] We acknowledge that in the present case the Military Members were senior officers of the NZDF ranking only below the CDF and the VCDF. We do not doubt that they would have had a thorough understanding of the task required of them and that they would have gone about that task in a careful, diligent and fair way. Nevertheless the principles that apply to criminal trials outside the military remain relevant. The relevant mens rea component of an offence is a legal issue. The Judge was required to direct the Military Members on that legal issue and the need to consider it. It cannot be assumed that, in the absence of such directions, the Military Members would understand what mental element needed to be proven in respect of a particular charge, especially where the defence may have placed no reliance on that
aspect. We now turn to consider what the mens rea component of charge 1 involved.
19 Adams on Criminal Law, above n 13, at [CA20.06].
20 At [CA20.05, 20.12, 20.40-20.42].
21 At [CA20.06].
Mens rea required for this offence
[107] The only express mental element in s 39 is as to knowledge of the written order. Section 39 makes it an offence to fail to comply with a lawful order “of which [Keat] had knowledge or of which he could, with reasonable diligence, have had knowledge”. So Keat must either have known of the order or the order must be one of which Keat could, with reasonable diligence, have had knowledge. Knowledge of an order and knowledge that one is failing to comply with an order are, however, different matters. Section 39 is silent as to whether Keat must have known that he was failing to comply with the order.
[108] There is nothing in s 39 which indicates that the usual rule (that is, that mens rea is implied in respect of all ingredients of an offence unless there is sufficient reason to the contrary) is not to apply. The section creates an offence which is punishable by up to two years imprisonment. It is therefore a penal provision with potentially serious consequences for the defendant. The section has made it clear that it is not an excuse that a defendant does not know about the order, provided it is an order that the defendant could with reasonable diligence have known about. That is a different question from whether a failure to comply with an order must be intentional. A person may know of the order, but not know that by their actions or omissions they are failing to comply with it.
[109] We note that s 38 of the Act creates an offence where a person “disobeys a lawful command of his superior officer.” Disobedience implies an awareness of a command and an intention not to comply with it. That offence is more serious than s
39 in that it is punishable by up to five years’ imprisonment. It seems intended to capture a more direct order (a command of a superior officer) than that captured under s 39 (failure to comply with any lawful order). It does not suggest that the offence of failing to comply with an order is intended to capture unintentional
failures.22
22 For completeness we note that we have briefly reviewed the corresponding provisions in the United Kingdom and Australia. The United Kingdom provisions are very similar although the equivalent of s 39 describes “contraven[ing]” a lawful order rather than “fail[ing] to comply”. Commentary in the Manual of Service Law suggests that if an accused genuinely made a mistake and misunderstood the order they may have a defence. In respect of the equivalent of s
38 the Manual of Service Law states that to disobey there must be an awareness of what is being
The elements of the offence
[110] We conclude that the elements of this charge are that:
(a) DFO 3 Part 9 Chapter 5, article 9.5.24(1) is a lawful order;
(b)Keat knew of the written order (or could with reasonable diligence have had knowledge of the written order);
(c) between November 2010 and January 2013 there was a “close personal relationship” (as defined in the order) between Keat and the complainant;
(d) during this period Keat knew it was a “close personal relationship”;23
and
(e) during this period Keat failed to report his “close personal relationship” to his manager/commanding officer.
Admission of Facts
[175] The Judge’s oral directions covered the mens rea requirement to some extent.
The Judge directed that the Military Members needed to be sure that:
… not disclosing it, which is to say lying to Rear Admiral Steer, is likely to prejudice service discipline in that the accused knew that he was acting improperly in that the relationship existed and it wasn’t disclosed.
[176] In our view that direction was not particularly clear. It ran a few of the elements together in a way which had the potential to cause confusion despite the experience and expertise of the Military Members. It was also not clear from the last part of that direction whether it was sufficient that the relationship existed and it was not disclosed. The aide memoire was better in that it seemingly included both “deliberately omitting to disclose” and “knowingly acting improperly”. However, the delivery of the aide memoire was not accompanied by further oral directions.
[177] Moreover the Judge directed that the Military Members had to consider whether, in light of Keat’s evidence that the last sexual encounter was in May 2010 and his evidence of the encounter in Palmerston North in December 2010, there was a close personal relationship “sufficiently proximate in time” to require disclosure to the VCDF. We consider that this direction also had the potential to confuse the Military Members. It may have led the Military Members to conclude that, if they regarded these encounters to be sufficiently proximate in time to the question from the VCDF, then the relationship needed to be disclosed.
[178] A problem with that direction was the Judge’s apparently mistaken reference to May rather than March 2010.38 That put the encounter closer in time to when Keat was questioned by the VCDF. We could, however, assume that the Military Members recognised this as an error, and that they were clear as to Keat’s evidence that he last had sex with the complainant in March 2010.
[179] More significantly, this direction overlooked the possibility (if Keat’s evidence was accepted as reasonably possible) that as far as Keat was concerned, as at November 2010, the sexual relationship had ended. The fact of the December
2010 encounter, although quite proximate to the VCDF’s question, did not in and of itself mean that Keat needed to disclose his relationship with the complainant in response to the VCDF’s question. Its relevance was only as a circumstance which the Military Members could take into account in deciding whether to accept, as reasonably possible, Keat’s evidence that as far as he was concerned the sexual relationship had come to an end in March 2010.
[180] This relevance was not explained. Instead, on the basis of the Judge’s directions the Military Members may have understood that non-disclosure was proven simply if they regarded the December 2010 encounter as sufficiently proximate to the VCDF’s question. Certainly the Military Members were entitled to take a dim view of Keat’s actions in going to the motel after the discussion with both Brigadier Wheeler and the VCDF. But that did not mean that a close personal
relationship needed to be disclosed to the VCDF, nor that Keat knew that it did.
38 It is possible that this is a typographical error made by the typist rather than the Judge. The point is not crucial to our decision so it need not be investigated further.
[181] We consider it was important to direct the Military Members to consider whether Keat knew that the relationship was a close personal relationship. The Military Members may have taken the view that, even if the last sexual encounter was in March 2010, they were sure that as at November 2010 there remained a strong emotional attachment (perhaps partly as evidenced by what occurred in December 2010). As discussed in relation to the other charges, it did not necessarily follow that Keat knew the relationship was of that kind. His own assessment of his emotional attachment may not have been an accurate one. We therefore consider that the Judge was in error in failing to make it clear that Keat was not guilty of this charge if he honestly believed that the relationship was not a “close personal relationship” (element (b) above), and if he did not know that the relationship was of a kind that needed to be disclosed in response to the question he was asked (element (d) above).
Charge 8 (prejudice to service discipline): mens rea
The charge
[182] Charge 8 was as follows:
OMITTING AN ACT SUCH OMISSION BEING LIKELY TO PREJUDICE SERVICE DISCIPLINE CONTRARY TO SECTION 73(1)(a) OF THE ARMED FORCES DISCIPLINE ACT 1971
in that he, at Headquarters New Zealand Defence Force on or about 1
October 2012, when questioned by the Chief of Defence Force, J49780
Lieutenant General R.R. JONES about an allegation from [the complainant] a member of the Civil Staff who worked under his management, that she was having a sexual relationship with Commodore K.J. KEAT, RNZN, M22091, that was affecting her work, failed to disclose he was in a close personal relationship with her.
Wrong charge and double charging?
[183] As discussed above in relation to charge 4,39 we consider there is an issue as to whether this should have been brought as a charge under s 73(1)(a). It appears to us that the omission to disclose the relationship, if it existed, was an omission that
constituted an offence under s 39 and was a particular instance of what was captured
39 See [153] above.
by charge 1. We have not heard submissions on this point and do not need to consider this issue further in light of the matters to which we now turn.
The elements of the offence
[184] This is the same kind of charge in relation to the same kind of omission as charge 4, but relating to a different occasion. The elements of this charge, which the prosecution was required to prove beyond reasonable doubt, are as follows:
(a) at the time CDF Jones questioned Keat, there was a close personal relationship between Keat and the complainant;
(b) at this time Keat knew that he was in a close personal relationship
(c) in light of the CDF’s question, Keat was required to disclose that he
was in a close personal relationship with the complainant;
(d)in light of the CDF’s question, Keat knew that he was required to disclose that he was in a close personal relationship with the complainant;
(e) Keat did not disclose to the CDF that he was in a close personal relationship; and
(f) Keat’s failure to disclose a close personal relationship with the
complainant was likely to prejudice service discipline.
The Admission of Facts
[185] The Admission of Facts did not include any admission as to these elements. It was therefore necessary for the prosecution to prove all of them.
Counsels’ addresses
[186] The prosecution grouped charge 8 with charge 4 when discussing the elements of this charge. Counsel for the defence also discussed these charges together.
The Judge’s summing up
[187] The Judge’s oral directions on this charge were as follows:
Finally, the eighth charge alleges that the accused omitted to give a truthful answer to a direct question. It is phrased slightly differently in terms of the alleged relationship. It alleges that General Jones asked the accused whether he was in a sexual relationship with the first witness which was affecting her work. The charge depends on your accepting that having been asked such a question there was a duty on [the] accused, whether or not the relationship was sexual at that time, to disclose that he was in a close personal relationship with [the complainant]. If you are sure that the close personal relationship existed and that the question was asked in the terms set out in the charge, according to the evidence of General Jones, as being sexual and affecting her work, then you must decide whether such a reply as the accused did give was an omission accounting for the real facts to an extent likely to prejudice service discipline, and to that I can do no more than refer you to General Jones’ account of what happened and to the accused’s account of what happened.
The aide memoire
[188] The “reconstructed version” of the document provided to the Military
Members set out in typed words the following:
Eighth charge: Omitting an act, such omission being likely to prejudice service discipline, when questioned by CDF about [the complainant’s] allegation they were in a sexual relationship, failed to disclose he was in a close personal relationship with her
Ingredients That he was in a close personal relationship with her That the questioning carried a duty of disclosure That he intentionally failed to make disclosure
Objectively, that this was likely to prejudice service discipline
[189] In handwriting, appearing above the fourth ingredient, were the words “[k]nowingly acted improperly”. As discussed above this followed the discussion with counsel that this should be added as an ingredient of this charge.
Our assessment
[190] The Judge’s oral directions did not address the mens rea element at all. From those directions the Military Members may have understood that, if they were satisfied that the close personal relationship existed, they only needed to consider whether Keat’s failure to disclose the relationship was likely to prejudice service discipline. As with the other charges, it was open to the Military Members to find that a close personal relationship existed even if they accepted as reasonably possible that there had been no sexual component to the relationship for some time. It was open to them to find that a strong emotional attachment remained between Keat and the complainant, such that Keat found it difficult to cease the constant contact with the complainant, even if Keat believed he was not emotionally attached and was merely managing what had become a difficult situation for him. On the basis of the Judge’s oral directions, the fact that Keat did not say to the CDF that he and the complainant were in a close personal relationship was all that needed to be proven, regardless of whether Keat honestly believed that to be the position or not.
[191] There was a credible narrative that Keat believed he and the complainant did not have a close personal relationship as at October 2012. By this stage, according to Keat, the relationship was over and had been for some time, the complainant had become more aggressive, and he was trying to manage the situation. It was for the Military Members to decide whether they accepted as reasonably possible that this was Keat’s honest belief of the nature of the relationship, such that he did not know he needed to say anything more when questioned by the CDF.
[192] We consider that the aide memoire accurately captured the elements of the charge, although the addition of “knowingly acting improperly” was unnecessary. However, in the absence of oral directions which explained these elements, and because of the errors in the directions on the mens rea elements of the other charges, we cannot be confident that the Military Members understood the distinction
between being sure of the existence of a close personal relationship that needed to be disclosed, and whether it was reasonably possible that Keat’s perspective was that the relationship was not of that kind.
[193] For those reasons we consider that the Judge’s directions to the Military
Members on this charge were in error.
Charge 5 (using threatening language): mens rea
The charge
[194] Charge 5 was as follows:
USING THREATENING INSULTING OR PROVOCATIVE LANGUAGE CONTRARY TO SECTION 43(b) OF THE ARMED FORCES DISCIPLINE ACT 1971
in that he, from an unknown location on a date unknown between 25
December 2011 and 1 January 2012, said to [the complainant], a member of the Civil Staff who worked under his management, a person not being an enemy, “we have only had one round of IMPing and another one to come and there is still your daughter” and “I will mess with your family”, or words to that effect.
The elements of the offence
[195] Section 43(b) creates an offence if a person “uses threatening, insulting, or provocative language to any person not being an enemy.”40 It is silent on the mens rea requirement of the offence.
[196] In the absence of direct authority on the mens rea requirement for this offence, we have considered other offences in the Summary Offences Act 1981 and the Crimes Act 1961. There is no identical offence in these enactments but there are some similar ones. For example, s 4(1)(a) of the Summary Offences Act creates an offence where a person “behaves in an offensive … manner”. There are different views in the case law as to whether the person must intend to offend or whether
some lesser mental state is sufficient.41 Section 306 of the Crimes Act creates an
offence where a person “threatens to kill or do grievous bodily harm to any person.”
40 See [15] above.
41 Bruce Robertson (ed) Summary Proceedings (online looseleaf ed, Brookers) at [SO4.07].
In respect of that offence, the mens rea required is an intention that the threat be taken seriously (or be taken as a threat which may be carried out).42
[197] In our view there is no good reason not to apply the usual rule that mens rea is an implied element of an offence under s 43(b) and applies to all elements of the threat.43 That means that not only must threatening, insulting or provocative language have been used, but it is also necessary to prove that Keat intended that his words would be taken seriously (that is, as a threat or to insult or provoke). This ensures that words said in the heat of the moment, which were not intended seriously, are not subject to criminal sanctions.
[198] We conclude that the elements of the offence are:
(a) using language which objectively is threatening, insulting or provocative; and
(b) intending by that language to threaten, insult or provoke.
Counsels’ addresses
[199] The closing addresses of the prosecution and defence only asked the Military Members to determine which witnesses they believed. The defence submitted that the three prosecution witnesses who gave evidence on this charge were inconsistent, and that it did not make sense that Keat would make such threats having been told that the friend and the daughter were present and the telephone was on speaker.
The Judge’s summing up
[200] The Judge used the evidence on this charge as a way of illustrating the burden and standard of proof. He did so as follows:
To give an example, the prosecution says that in the 5th and 6th charges the accused between Christmas and New Year used certain language. Three
42 Adams on Criminal Law, above n 13, at [CA 306.02]. It is said that criminalising threats, which were not intended to be taken seriously, risks catching remarks made in the heat of the moment which are not of a sufficient degree of seriousness to amount to a crime (referring to Wederell v Police HC Christchurch CRI-2010-409-033, 4 March 2010 at [14]).
43 See [101] above.
witnesses, [the complainant], her daughter and Mrs Musgrove, have given their account of what they say the accused said and how each of them reacted. The accused gave evidence and said that he never used any such language, he would never make such threats. If you accept what the accused said, then obviously the proper verdict is acquittal because you will have accepted that he did not do what the prosecution said he did. If his evidence leaves you unsure, then the proper verdict is acquittal because you will have been left with a reasonable doubt. But if you disbelieve his evidence, that doesn’t automatically mean that he is guilty, that would be to forget who has to prove the case. The way to go about it is to assess all the evidence given by the four people who gave evidence on this charge and decide whether you are satisfied to the extent of being sure that the words in the charge, or words to that effect as the charge says, were used.
If you are sure of that, then you assess whether he meant to use the words. It is then for you to decide whether the words were objectively considered, that is not his subjective thoughts about it but in your own objective assessment, the words that you find were used were threatening, insulting or provocative. If you are sure the words were intentionally used and were threatening, insulting or provocative, then it’s your duty to convict. If you do not think they are threatening, insulting or provocative but that they were used, you acquit on the 5th charge and go on to consider whether or not those words and their use in those circumstances was likely to bring discredit on the service.
[201] The Judge returned to this charge when discussing what needed to be proven in respect of each charge. On this charge he said:
The fifth charge is entirely different. That’s the threats by telephone. I’ve already dealt with that at some length and I need add only that it is your objective assessment as to whether or not such words as you find to have been used were threatening, insulting or provocative. So, firstly, what words were used and secondly, were they threatening, insulting or provocative.
The aide memoire
[202] The “reconstructed version” of the document provided to the Military
Members said:
Fifth charge: Using threatening insulting or provocative language in terms set out or to that effect
Ingredients Using the words intentionally
Objectively, were the words used threatening insulting or provocative
Our assessment
[203] We consider that the oral directions of the Judge were incorrect. It was not sufficient that the words were used, that Keat meant to use the words and that those words were objectively threatening, insulting or provocative. The Military Members also needed to assess whether Keat intended that his words would be taken seriously. They needed to consider this in the context of what the Judge later described in his sentencing remarks as a “blazing row” and in the course of which, according to Keat, the complainant was making threats to tell his wife about their relationship. The failure to direct the Military Members on this element of the charge was an error. The aide memoire did not correct the error because there was no explanation of what was meant by using the words “intentionally”.
The Judge’s hand out
[204] As discussed above the document that was provided to the Military Members at the conclusion of the summing up cannot be found. We have been provided with what is labelled a “reconstructed version”. That appears to be a version on which notes were made in light of the discussion with counsel that followed the summing up.44 It is important to retain a copy of documentary material provided to the Military Members for their deliberation (just as that is important in a criminal trial before a jury). Had the content of the document been crucial to the outcome of this appeal we would have considered whether to seek further information from the Court Martial on its content.45
[205] However in this case it is our view that the errors in the oral directions would not have been overcome by this document. That is because the Military Members received no further direction when the document was provided to them. In the absence of any such direction it cannot be assumed that the Military Members would disregard the incorrect oral directions and focus only on the ingredients as set out in the document. Therefore this is not a ground on which the appeal should be allowed, although it is somewhat unsatisfactory that the document provided to the Military
Members is not now available.
44 See [119]-[120] above.
45 Court Martial Appeals Act 1953, s 11(1)(b).
Was a lies direction required?
[206] In its closing address to the Military Members the prosecution submitted that there were two inconsistencies between Keat’s evidence at the Court Martial and the interviews he gave to the Military Police:
(a) The first inconsistency was said to concern the December 2010 encounter in Palmerston North. Counsel said that when Keat was interviewed by the Military Police he claimed that the encounter in the motel in December 2010 was a failed attempt at sex because of a performance issue on his part. Counsel submitted that this changed at the Court Martial when Keat gave an account of the complainant
throwing herself at Keat but nothing else happening.46
(b)The second alleged inconsistency concerned the reason Keat gave for why the complainant would get out of his car down the road from Defence House (rather than in the Defence House car park). When interviewed by the Military Police Keat explained that it was because he was aware of rumours about their relationship and also because civilians were not allowed in the basement at Defence House. The prosecution submitted to the Military Members that this was inconsistent with Keat’s evidence at the hearing that this was simply a
matter of convenience.47
[207] The prosecution submitted that these inconsistencies were important. It suggested to the Military Members that Keat had changed his evidence because he had realised that his initial answers were not plausible or helpful to him. The prosecution also submitted that it was “interesting” that Keat did not recall the conversation with VCDF Steer when he was asked about his relationship with the complainant. In effect the submission was that Keat was lying about these matters.
The question is whether in these circumstances a lies direction was required.
46 Keat was challenged about this alleged inconsistency in cross examination. He denied downplaying the incident and said that he hoped he had provided a bit more clarity about the incident.
47 Keat was not challenged on this alleged inconsistency.
[208] Section 124 of the Evidence Act 2006 sets out when a lies direction must be given. The section applies “if evidence offered in a criminal proceeding suggests that a defendant has lied either before or during the proceeding”.48 In that event, if “the Judge is of the opinion that the jury may place undue weight” on that evidence, the Judge must give a warning to the jury. The Judge must also give that warning if the defendant requests that it be given. The warning required is that:49
…
(a) the jury must be satisfied before using the evidence that the defendant did lie; and
(b) people lie for various reasons; and
(c) the jury should not necessarily conclude that, just because the defendant lied, the defendant is guilty of the offence for which the defendant is being tried.
[209] Counsel for the respondent says that a lies direction was not required because the defence did not request that the warning be given, and this was not a case where there were acknowledged lies which may have assumed undue weight.
[210] In our view a lies direction was required. This was a case where the Military Members needed to assess credibility, both of the complainant and Keat. The prosecution suggested to the Military Members that they might regard these matters as important. The implication was that Keat had lied about these matters because he lying about the nature of his relationship with the complainant. That was a legitimate submission to make providing that the warning required by s 124 was given.
[211] The first part of that warning required the Military Members to be directed that they first needed to be satisfied Keat had lied about these matters. In making that assessment they needed to take into account Keat’s evidence about that. In particular, Keat did not accept that he had changed his evidence in respect of the encounter in December 2010. The second alleged inconsistency was not put to Keat in cross examination. Keat did say that he could not remember the meeting with the
VCDF but he also said that he accepted the VCDF’s evidence about it.
48 Evidence Act 2006, s 124(1); Court Martial Act 2007, s 70.
49 Evidence Act 2006, s 124(3).
[212] The second part of the required warning was to direct the Military Members that, if they considered Keat was lying, it was important to consider the possible reasons why he might do so. The Military Members should have been directed to take into account that people can lie for all sorts of reasons other than because they are guilty. For example, Keat may have tried to downplay his initial willingness to have a sexual encounter with the complainant in the motel in December 2010 because he was concerned how his wife would react to hearing about this, or because he thought it would make him sound like he was still involved with the complainant when in fact he had moved on and no sex in fact took place at this time. Keat may have been unwilling to admit that he remembered the conversation with the VCDF because that took place a short time before the December 2010 encounter, which would not reflect well upon him. That did not necessarily mean that Keat lied in saying that the sexual relationship had ended in March 2010 and that no sexual intercourse took place in December 2010.
[213] The third part of the necessary warning was to direct that the Military Members should not necessarily conclude that just because a person lies that means they are guilty of the charge. Here it was relevant for the Military Members to consider that, even if they concluded that there was a sexual component to the relationship because of what occurred in the motel in December 2010, it did not necessarily follow that Keat regarded the relationship as a close personal relationship. If the sexual relationship had in reality ended in March 2010, and a one-off, but regretted, encounter in December 2010 took place, it did not necessarily follow that Keat would view his relationship with the complainant as a “close personal relationship”.
[214] If the Military Members were satisfied that Keat had lied in some aspect of his evidence, that was relevant to their assessment of whether Keat was telling the truth about his relationship with the complainant. But before they placed weight on any such lie it was important for the Military Members to take into account the above matters. In the absence of a direction about these matters there was a danger that the Military Members would place undue weight on matters they regarded as lies. We note that, in the context of the chain of command in the military, trust is vital. The Military Members would be imbued with that perspective. If they were of
the view that Keat, with his level of seniority, had lied in some aspect of his evidence we expect that would be an anathema to them. We therefore consider it was important to provide a clear direction about the proper use they could make of a conclusion that Keat had lied in some aspect of his evidence. We consider that the failure to give a lies direction was an error.
The Ballentynes evidence
[215] Counsel for Keat submits that the Judge failed to fully or fairly summarise the defence’s case in his summing up. This submission, as it evolved at the hearing of the appeal, was focussed on how the Judge described the evidence of what occurred at Ballentynes. As to this, the Judge said:
I must add, and this is a general observation, that it’s a matter for you, as I have said earlier, what evidence you regard as reliable, credible and important. There is evidence which, to my mind, you may feel was of little relevance. The detail of whatever happened from time to time at Ballentynes is a matter that you may consider peripheral. Likewise, while a good deal has been said about the security form exhibit which has been produced to you, there’s no charge in respect of that form. What the evidence about the Ballentynes events is designed to show is to reinforce the allegations that [the complainant] is a liar. That’s a matter for you entirely. The evidence about the security assessment is designed to show that from the beginning the accused was denying a situation, a relationship which in fact existed. Again, that is a matter for you.
[216] Counsel for Keat says that this did not fairly describe the relevance of the Ballentynes incident. The defence had relied on this as evidence of the complainant’s modus operandi. That is, as someone who is pleasant when she is getting her way but who will otherwise bully, intimidate and complain, and then claim that she is the victim. The defence adduced evidence from other witnesses which supported this modus operandi.
[217] We agree that the Judge did not accurately describe the potential relevance of the Ballentynes evidence from the defence’s perspective. We also agree that this evidence was a central plank of the defence and therefore needed to be fairly put.50
The evidence that the complainant had pretended not to know who Mrs Keat was
had some relevance to the Military Members’ assessment of her credibility.
50 R v Shipton [2007] 2 NZLR 218 (CA) at [33]-[35].
Importantly, from the defence perspective, this was also evidence of the complainant’s modus operandi. It was evidence consistent with a woman who deliberately visited the store to put Keat under pressure about what she was intending to do. Her text to Keat that he should ring her because she had just spoken to his wife and daughter was consistent with this.
[218] This evidence was relevant to whether it was reasonably possible that the sexual relationship had long since come to an end, and the complainant had not accepted that, or was unhappy that Keat did not want to continue it. It supported Keat’s account that the complainant had become increasingly difficult as their relationship deteriorated and Keat maintained contact to manage the situation. However, from the direction the Judge gave, the Military Members would have understood that he viewed the evidence as unimportant and not particularly relevant. The Judge’s role was to fairly summarise the relevance of the evidence from the defence perspective. It was for the Military Members to assess its value.
Other grounds of appeal
[219] A number of other grounds of appeal were raised. Counsel for Keat contended that a tripartite direction should have been given. We consider that an appropriate tripartite direction was given.51 It was also contended that the Military Members were directed that they could make preliminary conclusions on the evidence. We do not agree. Rather the Judge correctly directed that, if they had reached any preliminary view, then they needed to review that view in light of all the evidence they had heard. Lastly it was said that there was confusion about how the Military Members should address conflicts in evidence of equal weight. This
submission relied partly on the Judge’s comment that the Military Members had before them a “puzzle” and partly on an interpretation of comments made in sentencing Keat.52 The Military Members were correctly directed correctly on the burden and standard of proof and how that applied when they approached the
evidence. We disagree that there was any error in this respect.
51 See [200] above.
52 The Judge commented that the Court did not feel able to resolve conflicts in Keat’s evidence in that he viewed the relationship as toxic before he became AC Pers, that he viewed the complainant as a friend to be managed, and that this then reached the stage where he was taking notes to protect himself.
Conclusion
[220] We have concluded that the following errors were made in the directions given to the Military Members on how they were to determine whether the charges were proven.
[221] First, and most importantly, the Judge did not correctly direct the Military Members on the mens rea (state of mind) requirements of the charges. With some exceptions, the criminal law requires proof that a person not only did or omitted to do an act which constitutes an offence, but also that they did so with a “guilty mind” (that is, the conduct constituting the essential factual elements of a charge was intentional).
[222] In relation to charges 1, 4 and 8 it is clear that the Military Members found that Keat had a “close personal relationship” with the complainant, and that he did not disclose that relationship contrary to the DFO which required that disclosure. In relation to charge 2 it is clear that the Military Members found that the close personal relationship was an “unprofessional close personal relationship”, such that in terms of the DFO he was required to take steps to end it. Those matters all relate to Keat’s actions, rather than to his state of mind. The prosecution needed to prove that Keat acted intentionally, that is, that he realised his relationship was of a kind that required disclosure and steps to be taken to end it. If there was evidence on which the Military Members could conclude as reasonably possible the absence of this intention then the Judge needed to direct the Military Members to consider this.
[223] We are unable to say that the verdicts would have been the same if the
Military Members were directed to consider the mens rea component of charges 1, 2,
4 and 8. That is because, on the evidence before the Military Members, it was open for them to be sure that a “close personal relationship” existed during the period that Keat was AC Pers, but to be unsure whether Keat would have regarded the relationship in that way. This possibility arose because the DFO defined a close personal relationship as one which included a “sexual component” or in which there was a “strong emotional attachment”. The prosecution relied on either alternative to prove the charges. On the basis of the Judge’s directions and the evidence before the
Court Martial, it was open to the Military Members to find that a close personal relationship existed because:
(a) they accepted the complainant’s evidence that a sexual relationship continued up until December 2012; or
(b)they were unsure about the complainant’s evidence, but regarded Keat’s account of what occurred on one occasion in December 2010 as amounting to a “sexual component”; or
(c) they were unsure about (a) or (b), but were sure that there was a “strong emotional attachment” on the basis of the ongoing contact between Keat and the complainant.
[224] On which of those alternatives the Military Members determined that there was a close personal relationship is not known from the verdicts. In only the first of those would it inevitably follow that Keat would realise that he needed to disclose the relationship pursuant to the DFO. The second or third alternatives would require an assessment of the competing evidence. A similar assessment was required of whether Keat understood that the relationship was an “unprofessional close personal relationship” requiring that he take steps to end it, and of whether he had failed to take such steps. A direction on Keat’s intention was also required in respect of charge 5, which concerned a threatening telephone call.
[225] Secondly, the evidence required that the Judge direct the Military Members on the proper use they could make of any proven lie. This direction was required because of the possibility that lies can be given undue weight in assessing a person’s guilt. In this case the prosecution relied on alleged inconsistencies in aspects of Keat’s evidence. The Military Members were, in effect, invited to consider that Keat had not given truthful evidence about these matters. There was a danger that the Military Members would conclude that, if Keat was lying about a particular encounter in December 2010, it must have been because he knew his relationship was a “close personal relationship” requiring disclosure. This was not, however, the only possible inference that could be drawn.
[226] Thirdly, a key part of the defence’s case was that the complainant was a difficult and intimidating person. This was relevant to the credibility of her account of the relationship. It was also relevant to Keat’s explanation for his continued significant contact with her. The defence supported this with evidence of the complainant’s visits to a store where Mrs Keat worked, which the complainant made known to Keat, at around the time the complainant decided to inform the CDF that she was in a relationship with Keat (and which ultimately led to the charges brought being against him). The Judge did not explain the relevance of this evidence from the defence perspective.
[227] We have reached the view that in light of these matters the convictions are unsafe. We have not overlooked the experience and diligence that the Military Members would have brought to their task. However we cannot assume that they considered matters of a legal nature on which they were not directed. Our primary concern relates to the mens rea directions. The second and third errors are less significant, but add some weight to our concern. We note that the case was a difficult one factually and legally. As is customary, the Judge gave counsel the opportunity to comment on his directions and the document he proposed to provide to the Military Members. Counsel did not raise the matters which have led to our view that the convictions should be quashed. That is not a bar to allowing the appeal. Where errors render convictions unsafe the convictions must be quashed.
[228] Because we have reached the view that the convictions must be quashed we do not deal with the sentence appeal.
[229] 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 2014 unless it was extended (and it was not). We seek submissions from counsel on whether a retrial should be ordered.
[230] The registry is directed to arrange a telephone conference with counsel so that a timetable for submissions on this remaining issue can be put in place.
Mallon J For the Court