27 Sep 2021

Judge moves to suppress name of country in espionage court martial case

2:43 pm on 27 September 2021

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

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

Photo: NZDF / Supplied

A New Zealand Defence Force soldier, based at the Linton Military Camp, is accused of spying in a case that is the first of its kind in New Zealand.

The soldier, who has continued interim name suppression, was called before the court martial today for what was a largely-procedural pre-trial hearing at the Linton Military Camp.

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

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

The case

The man, aged 27-years-old at the time of his arrest, faces a mix of both Service and civil charges laid under the Armed Forces Discipline Act 1971 and the Crimes Act 1961.

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

He is also charged with doing an act likely to prejudice Service discipline or bring discredit to the Service, one charge of negligently failing to perform a duty and four charges of failing to comply with written orders.

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

What happened today

During the half-day hearing, Chief Judge Kevin Riordan heard submissions on name suppression, alternative ways of giving evidence and admissibility of evidence.

Judge Riordan granted a number of applications by the Crown under Section 205 2(f) that relates to the ability of the court to suppress aspects of the evidence likely to prejudice the security or defence of New Zealand.

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

Suppressing information based on the risk poses to the country's security or defence is rare, unlike other grounds such as undue hardship, risk of prejudice to a fair trial and endangering the safety of a person.

In coming to his decisions, Judge Riordan had to balance the risk of prejudicing security or defence of New Zealand with the principles of open justice, protected in the Bill of Rights Act 1990.

New Zealand courts, including court martials, are generally open to the public and the news media so that the delivery of justice can be observed by the public.

The Courts of New Zealand website states this is referred to as the principle of 'open justice' in which an open court process maintains public confidence in the justice system.

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

Media lawyer Kristin Wilson's submissions hinged on the principles of open justice; arguing any restrictions imposed on journalists to protect sensitive information should be as least restrictive as possible.

The soldier's lawyers argued the man's name suppression should continue on the extreme hardship and endanger to safety threshold grounds, set out under Section 200 of the Criminal Procedure Act 2011.

After hearing arguments, the judge ordered that interim name suppression continue while more information on the man's mental health status is established ahead of another pre-trial hearing, whose date is yet to be set.

Judge Riordan also declined the Crown's request he make an order requiring any journalists wishing to attend the court martial to undergo police vetting ahead of the trial.