Corporal Manu Smith has served in the defence force for 17 years. Photo: Pool / Stuff / Kai Schwoerer
A solider has been sentenced to two months' detention in a military jail for making an intimate visual recording of a woman without her consent, but can continue serving in the army.
Royal New Zealand Infantry Regiment Corporal Manu Anthony Smith, 41, made the video while having sex with his now-former girlfriend in 2020.
The sentencing on the single charge of intentionally or recklessly making the recording followed a three-day court martial at Burnham Military Camp.
Prosecutors sought to have Smith, who has served in the defence force for 17 years, dismissed from service. Instead, he will remain in the army, but will be on a formal written warning for the next year.
He was also ordered to pay $2000 in compensation to the woman.
The court martial initially considered three charges against Smith involving two complainants, but two of the charges relating to another woman were [https://www.rnz.co.nz/news/national/563684/military-panel-drops-two-charges-against-soldier-accused-of-filming-during-sex-without-consent
dropped on the second day of the hearing].
Judge Gilbert said the charges were dismissed for legal reasons, because in light of the evidence, a properly directed panel could not reasonably convict on those charges.
During his summing up on Wednesday, Judge Gilbert reminded the panel to disregard that complainant's evidence, with the exception of evidence about a Facebook group chat of women who had dated Smith and "wanted to cause trouble for him".
That was still relevant, with the defence claiming the women colluded in the chat on ways to cause trouble, including bringing the recordings to the attention of the authorities, he said.
Smith's lawyer, Matthew Hague, told the court the complaints only arose after the women discovered Smith was dating both of them without the other's knowledge.
Under questioning, the woman accepted the group discussed ways to "hurt" Smith and raised the sexual images as a way to get him into trouble.
She admitted members of the group assisted in drafting her complaint, but had only done so because she was not very good with words.
The woman acknowledged she wanted to make Smith "hurt the same way he had made her hurt".
In his summing up, Judge Gilbert said the women's dislike for Smith was "traversed up hill and down dale in the group chat".
Smith did not dispute he made the video using his cellphone during sex, but he pleaded not guilty on the basis the woman had given her consent or he genuinely believed she had.
He did not attempt to conceal his actions and he sent the video to the woman via Snapchat immediately, nor had Smith distributed any of the images.
Hague said context - including the pair's relationship at the time and their history of sending each other explicit images - had to be taken into account.
He painted the women as unreliable and motivated by vengeance, and said their strong dislike for Smith and collusion should raise serious doubts about the charge his client faced.
Prosecutor Captain John Whitcombe said the offending fundamentally went against New Zealand Defence Force values.
While Smith was not on duty or acting in an official capacity at the time, the offending "demonstrated an inherent defect in his character or judgement", and the appropriate sentence was Smith's dismissal from His Majesty's service, Whitcombe submitted.
Delivering a victim impact statement via audio visual link, the woman told the court martial that, before meeting Smith, she had been carefree and independent, but had been left suspicious of men and in people more generally.
She said, during the offending, she had felt shame, but now knew the shame was not hers.
"I wish you'd had the courage to ask for consent and the courage to delete the video when I asked you to," she said.
She told the panel she was embarrassed to have to talk about the recording over and over again, and Smith's actions had also affected her current relationship.
"When I hear your name, I feel dread," she said. "When I see a car like yours, I lose my mind."
The four years it had taken to get to the court martial had been exhausting, she said.
The court heard from Smith's commanding officer, who cannot be named. The officer said Smith was a diligent soldier, who was decorated for his service in Afghanistan's Bamiyan province.
He had shown himself to be hard working, enthusiastic and trustworthy, and was respected by peers, subordinates and superiors.
The officer first met Smith in 2010, when he served under him as a trusted member of a 12-person patrol in the New Zealand Provincial Reconstruction Team in Afghanistan and had since had a long working relationship with him.
"I find it hard to reconcile the offending he has been found guilty of in this case with the soldier and man I have known for many years," he said.
He said Smith had a long road to travel ahead, but with support and guidance, he would develop the necessary skills to "navigate his personal life and return to be the man I have known".
"If Corporal Smith commits to learning and growing from this experience, we - as his military family - will help him to navigate the difficult times ahead," he said. "We will not leave him behind and will push him forward to be the type of man I know he is capable of being."
The panel raised concerns about Smith's credibility as a leader, should he stay in the army, as well as the possibility that subordinates would feel unable to raise issues of sexual harassment by other soldiers, because of his background.
Two other military colleagues made formal submissions supporting Smith, along with two of his sisters.
His sisters spoke of their pride in Smith's achievements in the forces, saying he had always acted with integrity.
They spoke of the toll of the uncertainty and stress caused by the long wait for the matter to come to trial.
In a court martial, a three or five-person military panel must reach a unanimous verdict and could impose a range of sentences, including detention, imprisonment, fines and dismissal.
Punishments were more severe for certain offences than would be the case for civilians.
Burnham's Services Corrective Establishment (SCE) is the NZDF's only dedicated detention facility.
Detention was the second-most severe punishment available within the military justice system, behind only imprisonment and dismissal.
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