Keat v R [2014] NZHC 2784 (10 November 2014)

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BETWEEN	KEVIN JOHN KEAT Appellant
AND	THE QUEEN Respondent

Hearing:	22 October 2014 (further submissions on 28 October, and 6 and 7 November 2014)
Court:	Mallon J Judge J Billington QC Judge D McGregor
Appearances:	M Bott and S Taylor for the Appellant P K Feltham and Major A Taylor for the Respondent
Judgment:	10 November 2014

Introduction ....................................................................................................................................... [1] Background........................................................................................................................................ [5] Power to order a retrial .................................................................................................................... [8] Does exercising the power to direct a retrial provide jurisdiction? ............................................ [12] Who is “subject to” the Armed Forces Discipline Act? ................................................................ [18] Is Mr Keat within section 6? .......................................................................................................... [20] Do the deeming provisions in ss 17 to 19 of the Armed Forces Discipline Act apply? ............... [40] Do the remaining Part 1 provisions assist? ................................................................................... [49] An extension for disciplinary purposes? ....................................................................................... [51] Conclusion on jurisdiction .............................................................................................................. [59] Other matters .................................................................................................................................. [60]

_{Result
................................................................................................................................................
[66]}

[1] We refer to our judgment delivered on 19 August 2014.¹In that judgment we quashed Commodore Keat’s convictions entered by the Court Martial and sought submissions on whether a retrial should be ordered. We said:²

We have considered what further orders should be made in light of our view that the convictions must be quashed. We consider that we are not in a position to determine whether or not the charges would have been proven if all the legal elements of the charges were considered. We are unclear whether an order for a retrial is sought or regarded as necessary. We understand that Keat’s contract with NZDF would have come to an end on

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

[2] We received written submissions from counsel on 12 and 22 September 2014 and heard orally from counsel at a hearing convened on 22 October 2014. We sought and received further written submissions following that hearing.

[3] The respondent has confirmed that it seeks an order for a retrial. We are told that there are no practical impediments to a retrial (witnesses are available and an appropriately comprised Court Martial can be convened). We are also told that, although Commodore Keat (now referred to by counsel as Mr Keat)⁴has been released from service, the Director of Military Prosecutions has carefully considered whether he wishes to proceed with a retrial and has determined that a retrial should proceed should we direct one.

[4] The order for a retrial is opposed by Mr Keat. It is contended that in view of his civilian status an order for a retrial is no longer available or appropriate. We agree that because Mr Keat is now a civilian a retrial should not be ordered. We set

2013. Following his convictions he was sentenced to dismissal from the service on

[6] Section 66 of the Court Martial Act 2007 requires the Judge to announce in open court any sentence that the Court Martial passes. It goes on to provide:

(4) In delivering a sentence, the Judge must state that the dismissal does not take effect—

(a) until the expiration of the period for lodging an appeal to the Court Martial Appeal Court against the conviction or sentence; or

8 November 2013. In accordance with s 66(4) his dismissal was suspended until his appeal to this Court was determined. Mr Keat’s appeal was heard on 30 April 2014. By that time the New Zealand Defence Force (“NZDF”) had released him from service (discussed in more detail below). With our decision to quash his convictions, the sentence of dismissal was of no effect. The question that arises is whether, having released Mr Keat from service, there remains jurisdiction to retry him on charges under the Armed Forces Discipline Act.

[8] The starting point is s 9A(3) of the Court Martial Appeals Act 1953 which provides:

(3) If the court allows an appeal, the court— (a) may squash the conviction; and (b) may do any of the following:

[9] The power to direct a new trial is discretionary. There was a similar discretionary power in the predecessor provision of the Court Martial Appeals Act.⁵

That predecessor provision was considered by the Court Martial Appeal Court in R v Lawrence (No 1).⁶The Court considered that the approach set out in Reid v R should apply.⁷Under that approach:

(a) The power to order a new trial ought not to be exercised where the reason for setting aside the verdict is that the evidence adduced at trial is insufficient to justify a conviction by a reasonable jury even if properly directed.

(b) Where the evidence at trial was so strong that any reasonable jury if properly directed would have convicted the defendant the proper course would be to dismiss the appeal.

(c) In between those two situations there may be many factors that need to be considered, some of which may point towards ordering a new

[10] The present case is the situation in (c). A number of factors may be considered in determining whether to order a retrial. However the conventional approach in the criminal jurisdiction in that kind of case is for the Court to order a retrial and to leave it to the Crown to decide whether to proceed further. This reflects the important broad constitutional principle that the Crown prosecutes and

[11] One of the factors we consider to be important in the exercise of our discretion is whether the Court Martial continues to have jurisdiction over Mr Keat now that he is released from service. We would not order a retrial if that order would be pointless because the Court Martial did not have jurisdiction over Mr Keat. We consider that issue first, before turning to other matters that were raised.

[12] The respondent submits that, if we exercise the power to direct a new trial, that is sufficient to give the Court Martial jurisdiction to retry Mr Keat. We do not accept this submission. Our power to direct a retrial is separate from the question of the Court Martial’s jurisdiction over Mr Keat.

[13] The charges against Mr Keat are brought under the Armed Forces Discipline Act. The Court Martial’s jurisdiction in respect of those charges depends upon Mr Keat being subject to that Act. This is expressly provided in s 78 of the Armed Forces Discipline Act:¹⁰

Subject to the provisions of this Act, the Court Martial has jurisdiction to try any charge against a person subject to this Act in respect of an offence against this Act, whether committed in New Zealand or elsewhere.

[14] The requirement to be subject to the Armed Forces Discipline Act also defines its extraterritorial operation. Section 4(2) of that Act provides that it “applies

⁸Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [CAS385.23].

See also Chalmers and Leverick “When Should a Retrial be Permitted After a Conviction is

⁹_{Examples are provided in Adams on Criminal Law,
above n 8, at [CAS385.23].}

to persons who are subject to the law established by this Act” whether they are

[15] The Court Martial’s jurisdiction is also conferred by s 36 of the Court Martial

[16] Subsection (1) therefore confers the same jurisdiction as that under the Armed Forces Discipline Act (being the 1971 Act referred to). Subsection (2) requires the Court Martial to sit and determine charges laid before the Registrar of the Court Martial,¹¹applications under s 63(2) of the Court Martial Act (which concerns orders to come up for sentence) and any other application to the Court Martial under the Court Martial Act or the Armed Forces Discipline Act. The

provisions in subsection (2) concern what the Court Martial must determine, not whether the Court Martial has jurisdiction over Mr Keat. It was not submitted that the provisions in subsection (2) conferred jurisdiction.¹²

[17] Therefore, to have jurisdiction over Mr Keat in order to re-try him, Mr Keat must be a person who is “subject to” the Armed Forces Discipline Act. An order for a retrial would be ineffective if Mr Keat is no longer subject to the Act. We turn to

[18] Part 1 of the Armed Forces Discipline Act concerns jurisdiction. That part covers the following:

(b) other associated persons who are subject to the Act – for example, persons attached to forces of another country; persons from other forces attached to our Armed Forces; volunteers; trainees; prisoners of war; spies; passengers on Her Majesty’s ships, aircrafts or vehicles; and civilians closely associated with the Armed Forces (ss 8 to 16);

[19] Mr Keat is not one of the kinds of persons referred to in (b) above. We need not discuss them further, except to note that they are indicative of an intent to be specific about the extent of the jurisdiction of the Act. The other categories are potentially relevant. We turn to consider them.

[20] Section 6 of the Armed Forces Discipline Act sets out persons in the Navy, Army and the Air Force who are subject to the Act. For present purposes the relevant part of that section is s 6(1) which provides:

(a) all officers of the Royal New Zealand Navy, the Royal New Zealand Naval Reserve, the Royal New Zealand Naval Volunteer Reserve, or the Naval Reserves, or of any additional naval force raised in accordance with section

[21] As an officer of the Royal New Zealand Navy (RNZ Navy) at the time of the alleged offending, Mr Keat (at that time Commodore Keat) was subject to the Act. He has since been “released”. Does that mean he is no longer within this provision? To answer this question we start by considering how an officer of the RNZ Navy is appointed and released and how that occurred in relation to Mr Keat.

purposes the relevant ones are the “regular forces” and the “reserve forces”.¹³

Section 13 of the Defence Act 1990 concerns members of the regular forces. It provides:¹⁴

(1) The regular forces of the Armed Forces shall, subject to Part 4, consist of such officers and of such ratings, soldiers, and airmen as are for the time being and from time to time appointed, engaged, enlisted, or transferred for continuing full-time service in the Royal New Zealand Navy, the Regular Forces of the Army, or the Regular Air Force.

(2) The maximum numbers of officers, ratings, soldiers, and airmen in the regular forces shall be such as the Minister authorises from time to time.

[23] Section 16 of the Defence Act 1990 concerns members of the reserve forces. It provides:¹⁵

The reserve forces of the Armed Forces shall, subject to Part 4, consist of such officers and of such ratings, soldiers, and airmen as are for the time being and from time to time appointed, engaged, enlisted, or transferred for service in the Naval Reserves, the Army Reserve, or the Air Force Reserve.

[24] Thus in both cases membership is a present status. It depends on those who “for the time being and from time to time” are appointed, engaged, enlisted or transferred. In each case this is subject to Part 4. Part 4 concerns terms and conditions of service in the Armed Forces. The provisions include delegated power

_{in the Chief of Defence Force to “appoint officers to a
service of the Armed}

Forces”.¹⁶They also include provisions concerning liability for service in the regular forces and in the reserve forces.

[25] Specifically in relation to the regular forces s 38 of the Defence Act 1990 provides as follows:

(1) Subject to sections 36 and 37, all members of the regular forces shall be liable at all times for service, either within New Zealand or elsewhere, subject to such conditions as may be prescribed.

(a) when the period of service of a member of the regular forces has been completed, that member shall be discharged or released from the regular forces without delay, but that member shall be liable to continue serving until that discharge or release is effected; and

(b) in time of war or other like emergency, the Governor- General may, by Proclamation, make an order that members of the regular forces who would, but for the war or emergency, be entitled to be discharged or released shall be liable to continue to serve; and, on the making of any such Proclamation, those members shall be liable to continue to serve during the continuance of the state of war or emergency for such period as the Minister may determine; and

(c) in the event of an actual or imminent emergency involving the deployment of members of the Armed Forces outside New Zealand, the Governor-General may, by Proclamation, make an order that members of the regular forces who would, but for the emergency, be entitled to be discharged or released shall be liable to continue to serve for such period not exceeding 6 months as may be specified in the Proclamation; and on the making of any such Proclamation, those members shall be liable to continue to serve until the emergency has passed or until the period specified in the Proclamation has expired, whichever is the sooner.

[26] Accordingly an officer of the RNZ Navy is liable for service in accordance with prescribed terms and conditions.¹⁷When the period of service has ended they are to be discharged or released from service, which must be effected without delay,

_{and they remain liable for service until that discharge or
release is effected.}

However, in the event of war or other emergency, the period of service may be extended.

[27] It is also possible to leave the regular forces prior to the date at which the person’s period of service is to end. That can be done by notice. Section 52 of the Defence Act 1990 provides that notice can be given as follows:

(1) Subject to section 38(2)(b) and sections 53 to 57, a member of the regular forces may terminate his or her service in the regular forces at any time by giving notice to the officer in command of the member's ship or unit.

(2) A notice given by a member of the regular forces for the purposes of this section shall be in writing, and the period of the notice shall commence to run on the day on which it is given to the officer in command of the member's ship or unit.

(3) A member who gives notice to terminate his or her service in the regular forces shall be deemed to have completed his or her service on—

(b) if the period of notice is less than 3 months, the expiry of the period of 3 months commencing with the day on which the notice is given,—

or on such earlier date as the Chief of Defence Force may from time to time prescribe in Defence Force Orders.

(1) Subject to subsection (2), the terms and conditions of service and training in the reserve forces shall be such as may be prescribed from time to time.

(2) In time of war or other like emergency or during any state of emergency declared under the Civil Defence Emergency Management Act 2002, the Governor-General may, by Proclamation, transfer the reserve forces, or any specified part of those forces, to the regular forces or the territorial forces; and on the making of any such Proclamation, the forces so transferred shall be liable for continuous service, either in New Zealand or elsewhere, during the continuance of the state of war or emergency for such period as the Minister may determine.

(3) In the event of an actual or imminent emergency involving the deployment of members of the Armed Forces outside New Zealand, the Governor-General may, by Proclamation, transfer the reserve forces, or any specified part of those forces, to the regular forces or the territorial forces for such period not exceeding 3 months as may be specified in the Proclamation; and on the making of any such Proclamation, the forces so transferred shall be liable for continuous service, either in New Zealand or elsewhere, until the emergency has passed or the period specified in the Proclamation has expired, whichever is the sooner.

[29] Accordingly a person appointed or transferred to the reserve forces is liable for service in accordance with prescribed terms and conditions. Such a person may be transferred to the regular or territorial forces in the event of war or other emergency and they are liable for service in those forces for a period of time as may be prescribed.

[30] There is also a power to issue Defence Force Orders (DFOs) for the purposes of the Defence Act 1990. Such DFOs cannot be inconsistent with the Defence Act

include provisions concerning Conditions of Service (Chapter 2). These include provisions that concern a service member’s liability to be transferred to the reserve forces. The DFOs also include provisions concerning Release, Discharge and Dismissal (Chapter 16). These set out the different ways that a service member may leave the regular forces (normal release, premature release, deferred release, dismissal and discharge) with each of these ways being assigned a category.

[31] In practice, and consistent with these provisions, an officer of the RNZ Navy is appointed and given engagements. The appointment is made via an “offer of service”. The offer of service is for a fixed period of time. The offer of service can be extended by agreement. Officers are given variations of engagement, usually via extensions of service throughout their career. Officers at the level of seniority of Commodore Keat are appointed into positions. These appointments are usually via engagements that are for three years. At the end of the engagement they complete their term of service unless posted to a further appointment. At the conclusion of their period of service (if not extended) they are to be discharged or released from

_{service, which must be effected without delay, and they remain liable
for service}

until that discharge or release is effected. They may, however, be subject to liability for service in the reserve forces.

[32] At the time of the charges brought against Mr Keat, his engagement was pursuant to an extension of service which he accepted on 14 July 2010. That extension of service provided as follows:

I, M22091 Captain Kevin John Keat, MNZM, HMNZS WAKEFIELD, being at present appointed to or engaged in the Royal New Zealand Navy until 30 November 2012 accept the extension of service offered in PF M22091 dated 7 July 2010 attached.

This engagement will be in the Royal New Zealand Navy and will continue until my new terminal date of 1 February 2014 unless I am released or discharged at an earlier date in accordance with the Defence Act 1990 and the conditions prescribed thereunder.

a. Four years if I am released with less than twenty years service; or b. Two years if I have completed 20 years or more service;

I further understand that the oath/affirmation of allegiance sworn/made by me on 28 January 1976 will continue to apply in respect of this undertaking.

[33] Pursuant to that extension of service Mr Keat’s engagement was due to end on 1 February 2014.¹⁹Unless it was further extended, in accordance with s 38 of the Defence Act, his liability for service in the regular forces would end on that day and he was to be released or discharged from service without delay. Mr Keat then had reserve liability for two years (that is, until 1 February 2016) as he had completed

[34] But for these charges Mr Keat would have sought a new offer of service to follow from 1 February 2014. Whether he would have received such an offer is not known although Mr Keat’s expectation was that an offer would have been made. We

Commodore Keat) to register his interest in the position of Chief of Navy. He was not successful in that application but, through his counsel, we are told that he was being considered for other positions.

[35] As a result of the charges, however, he was formally suspended from duty on

8 February 2013. We do not know on the material before us whether and to what extent the NZDF continued to consider him for any appointment.²⁰On 17 January

2014, after his convictions and sentence in the Court Martial but before his appeal to this Court was heard, Mr Keat was given notice that he was to be released with effect from 1 February 2014. He was duly released on that day. His letter of release was signed by Commander Gilchrist. It stated the following:

(b) Commander Gilchrist was “advised that this will not affect the consideration of your appeal in the Court Martial Appeal Court.”²¹

(c) Commodore Keat needed to complete some documentation prior to his release, which included the “Leaving the NZDF Booklet.”

[36] We are advised by Mr Keat’s counsel that the “Leaving the NZDF Booklet” included a “Reserve Liability” section.²²A copy of this has been provided to us. This stated:

Categories All personnel, on release from the service, will incur a reserve liability, except personnel in the following categories:

²¹We note that, pursuant to s 9 of the Court Martial Appeals Act 1953, the right of appeal is

conferred on a “person convicted by the Court Martial”. Accordingly it is not necessary to remain “subject to” the Armed Forces Discipline Act 1971 for the purposes of an appeal.

Some personnel may be exempt for certain periods and there are also occasions where any reserve liability may be terminated. Your Case Manager will explain these to you.

[37] Interestingly, the current version of DFO 4, Chapter 2, Section 7 provides that “[o]n release all Service members other than those specified in paragraph 2.143 of this Section are to be transferred to the Reserve of their Service.” Mr Keat did not fall within those specified in paragraph 2.143 although he would have done had his sentence of dismissal taken effect. In accordance with the DFO he was therefore to

be transferred to the Naval Reserves for two years.²³He could apply for a waiver of

reserve liability which would be considered on compassionate grounds or compelling personal circumstances. Although Mr Keat did not apply for waiver, the NZDF nevertheless waived his reserve liability.²⁴He was advised of this via the Leaving the NZDF Booklet.

[38] Had the NZDF offered to Mr Keat an extension of service it would have been open to him to decide whether to accept that offer. Had he accepted that offer Mr Keat would still be a member of the RNZ Navy and therefore still subject to the Armed Forces Discipline Act. Had Mr Keat declined the offer he would still have been liable for transfer to the Naval Reserves for a period of two years from

1 February 2014.²⁵In that event Mr Keat would have remained subject to the Act as

²³Although this period would come to an end sooner if, during that period, he reached the age of

²⁴The respondent’s counsel understands that no legal advice was taken about this and the reason

²⁵We note the respondent’s submission that the purpose of reserve liability is to enable the

Government to call upon former members of the regular forces in times of emergency, not to preserve jurisdiction over a member of the regular forces pending the outcome of disciplinary proceedings. However Mr Keat had accepted an extension of his service that was subject to reserve liability. He did not seek a waiver of that liability. The NZDF was not obliged to waive that liability. Nothing has been put forward to suggest that it would have been improper to transfer Mr Keat to the Naval Reserves, which as a consequence would have kept him subject to the Act.

[39] None of that occurred. Instead the NZDF decided not to offer him a further period of service and further decided to release him from his reserve liability. The result is that, by the time that Mr Keat’s appeal was heard on 30 April 2014, he was no longer a member of the RNZ Navy and he was no longer liable for transfer to the Naval Reserves. He was, therefore, no longer subject to the Armed Forces Discipline Act under s 6 of that Act.

Do the deeming provisions in ss 17 to 19 of the Armed Forces Discipline Act apply?

[40] Sections 17 and 18 are specific provisions which extend the jurisdiction of the Armed Forces Discipline Act to persons who have been discharged, dismissed or who have otherwise ceased to be subject to it. If a person is deemed by either of those sections to be subject to the Act, s 19 specifies the rank which will apply to that person for the purposes of the Act.

[41] Section 17 relates to a member of the Armed Forces who is sentenced to a term of imprisonment or detention. It provides:

(a) is sentenced to a term of imprisonment or detention by the Court Martial or to a term of detention by a disciplinary officer; and

(b) Is by virtue of that sentence deemed to be dismissed from Her Majesty's Service or is sentenced to dismissal from Her Majesty's Service or is discharged from the service of the Armed Forces to which he belongs—

he shall remain subject to this Act until he has served the sentence of imprisonment or detention or any further sentence of imprisonment or detention imposed in accordance with subsection (1) or subsection (4) of section 178 or has been released from that imprisonment or detention in due course of law.

(2) Where a person (other than a member of the Armed Forces) who is subject to this Act is sentenced by the Court Martial to a term of imprisonment and serves his sentence in a service penal establishment, he shall remain subject to this Act until he has served the sentence or is released from that imprisonment in due course of law.

[42] It can be seen that the section specifically provides that a person “shall remain subject to this Act” despite a dismissal or discharge from the service arising from a sentence of imprisonment or detention. The provision is necessary because:²⁶

(a) a sentence of imprisonment imposed on an officer leads to a deemed dismissal; and

(b) where a sentence of imprisonment is imposed on a rating, soldier, or airman, he or she may also be sentenced to dismissal.

[43] Section 17 does not apply to Mr Keat because he was not sentenced to imprisonment or detention. He was sentenced to dismissal but, as the Court Martial Act requires, that sentence was suspended because of his appeal. The effect of suspending the dismissal is that Mr Keat continued to remain subject to the Act. He was only released from service later (1 February 2014) when the NZDF decided not to offer him a further period of service and to waive his reserve liability.

[44] Section 18 concerns bringing charges against a person who has ceased to be subject to the Act and the trial of such charges. It provides:

(1) Where it is alleged that a person who has ceased to be subject to this Act has committed an offence while he was so subject, he may, subject to section 20, be charged under this Act with the commission of that offence, and the charge may be tried by the Court Martial.

(2) On the recording of the allegation in the form of a charge, the person charged shall be deemed—

(b) to hold the same status and rank as he held immediately before he ceased to be a person subject to this Act.

(4) Where a person to whom this section applies is convicted by the Court Martial of an offence and sentenced to a term of imprisonment or detention, he shall be deemed to be subject to this Act until he has

served his sentence or is lawfully released in due course of law from imprisonment or detention, as the case may be.

[45] The respondent submits that s 18(2) provides jurisdiction in respect of the retrial of the charges brought against Mr Keat. The respondent says that s 18(2) can be read on its own. The respondent says that, because an allegation in the form of a charge has been recorded, Mr Keat is deemed to be subject to the Act until the charge is disposed of.

[46] We do not accept the respondent’s submission. Subsections within legislation must be read in context and in light of their purpose.²⁷The words of s 18(2) begin with “on the recording of the allegation in the form of a charge”.²⁸What then is “the allegation” referred to? That is answered by s 18(1), which refers to a type of allegation: namely, that “a person who has ceased to be subject to this Act has committed an offence while he was so subject.”²⁹Read in context, “the allegation” in s 18(2) is the same allegation referred to in s 18(1). Read together, s 18(1) permits a type of allegation to be made and s 18(2) provides that, if it is made, the person

remains subject to the Act until the charges are disposed of. Section 18 is therefore another example in the Act which extends jurisdiction to someone who would otherwise no longer be subject to the Act.

[47] Does this extension apply to Mr Keat? He contends that it does not. His counsel submits that s 18(1) is concerned with the bringing of a charge after someone has ceased to be subject to the Act. He says it does not apply to a person who was subject to the Act when the charges were brought, but who has ceased to be subject to the Act before the charges are disposed of. We agree and consider that would be a strained interpretation of the words. We note that the respondent did not seek to contend that s 18(1) did apply to Mr Keat.

[48] The opening words of s 18(1) provide the circumstances in which the section applies. Specifically it applies “[w]here it is alleged that a person who has ceased to be subject to this Act has committed an offence...”. The section goes on to provide

_{that the person can be charged in respect of that allegation and the
charge may be}

tried by the Court Martial subject to s 20 (which imposes various time limits). Section 18(2) then provides that “[o]n the recording of the allegation in the form of a charge” the person is deemed to be subject to the Act until the charge is disposed of and to hold the same status and rank he held immediately before ceasing to be a person subject to the Act. Section 18(2) is therefore framed as though the person has already ceased to be subject to the Act when the allegation is recorded in the form of a charge. That is not the case in relation to Mr Keat.

[49] Section 20 of the Armed Forces Discipline Act provides time limits within which charges must be brought and tried or otherwise dealt with. In summary:

(a) There are certain offences that can be tried at any time after their alleged commission (these are concerned with assisting an enemy, spying, mutiny and desertion, and all could be described as matters of serious dereliction of duty and loyalty specific to military service).³⁰

(b) Offences which are also offences in the ordinary criminal jurisdiction are subject to the time limits that apply in that jurisdiction.³¹

(d) In respect a person who, by virtue of s 18 is deemed to be subject to the Act or who has ceased to be employed in full-term service, the charge must be referred to the Director of Military Prosecutions within six months after the person ceased to be subject to the Act

[50] None of these provisions bring Mr Keat within the jurisdiction of the Act. They would be relevant if Mr Keat was still subject to the Act and a charge was

brought against him.³⁴They might also have been relevant if new charges were to be brought against him – any such charges (other than of the kind referred to in [49](a) or (b)) were time-barred by 1 August 2014.³⁵The provisions are, however, indicative of an intent to be specific as to the limits of the jurisdiction conferred by the Act. Sections 21 and 22 are also in that vein. They ensure that a person cannot be tried under both the Armed Forces Discipline Act and in the ordinary criminal jurisdiction for the same act or omission and that a person cannot be tried for offences already disposed of.

[51] There is a provision pursuant to which a member of the regular forces may be required to await the outcome of disciplinary proceedings. Section 57 of the Defence Act 1990 provides:

(a) a member of the regular forces is facing disciplinary proceedings if any proceedings (including any proceedings on appeal or review or by way of confirmation) against the member are continuing or pending under the Armed Forces Discipline Act 1971; and

(b) a member of the regular forces is serving a sentence of imprisonment or detention if the member is serving such a sentence imposed under the Armed Forces Discipline Act

(2) Notwithstanding subsection (3) of section 52, if a member of the regular forces who,—

(b) having given notice under that section, subsequently faces disciplinary proceedings,—

that member's period of service shall not be deemed to have been completed until the proceedings have been completed, and the member has served any sentence of imprisonment or detention imposed as a result of those proceedings.

(3) Notwithstanding subsection (3) of section 52 but subject to subsection (2)(b) of this section, if a member of the regular forces who is serving a sentence of imprisonment or detention gives notice under that section, that member's period of service shall not be deemed to have been completed until the member has served that sentence.

[52] Section 57 is, therefore, another example of the legislation expressly conferring jurisdiction over a person who would otherwise have ceased to be subject to the Armed Forces Discipline Act. It is concerned with a person who gives notice under s 52 of the Defence Act while facing disciplinary proceedings or who,

subsequent to giving notice, faces disciplinary proceedings.³⁶The effect of s 57 is

that, despite the notice, that person’s service is deemed not to have been completed until the disciplinary proceedings have been completed and any sentence of imprisonment or detention imposed is completed.

In this case the NZDF did not invoke section 57 because it adopted the view that Mr Keat’s release from the Armed Forces would not preclude a retrial. The Crown’s position is that it would have been impractical, costly, unfair, and potentially an abuse of process to invoke section 57 solely on the basis there is a possibility of a successful appeal.

[54] However, at the oral hearing, counsel for the respondent agreed that s 57 did not apply.³⁷These provisions do not apply to Mr Keat because he did not give notice under s 52. Rather his service came to an end when his existing offer of service expired on 1 February 2014 and no further offer of service was made and his reserve liability was waived.

[55] There is no other statutory provision which extends a person’s service pending extant disciplinary proceedings. Counsel for Mr Keat contended that his

release could have been deferred pursuant to Chapter 16, Section 4 of the Defence

16.65 Deferred Release is release from the Regular Forces after being required to:

[56] However, if deferred release under 16.65(e) applies to a member of the Regular Forces whose period of service has come to an end, it is contrary to the terms of s 38 of the Defence Act. As discussed, that section requires the discharge or release to be effected without delay and no express exception is made for extant disciplinary proceedings.³⁸In our view it does not apply to such a person.

[57] We note that each of the grounds in 16.65 corresponds with a statutory provision which enables release to be deferred.³⁹Deferred release while awaiting ongoing disciplinary proceedings (16.65(e), above) corresponds with s 57 of the Defence Act. That becomes apparent from other parts of Chapter 16, Section 4 as follows:

16.72 When the Regular Force Service member is facing any continuing or pending disciplinary proceedings, or proceedings on appeal or review under the Armed Forces Discipline Act 1971, a Regular Force Service member’s period of service will be deemed to have not been completed. In accordance with Section 57 of the Defence Act 1990, his or her release will therefore be deemed to be deferred until:

16.73 The provisions of paragraph 16.72 of this Section includes situations when the Regular Force Service member submits an application for release:

16.74 A Regular Force Service member whose release has been deferred under this Section is to be released immediately [sic] the period of extended service, as required by the appropriate approving authority (in the case of war or emergency, overseas service and critical manning) or due to disciplinary proceedings, has been completed.

[58] Elsewhere, the DFOs recognise that release cannot be deferred for disciplinary proceedings when a person’s service comes to an end. The current version of DFO 4, Chapter 2, Section 2, provides:

2.43 Where a Regular Force member, subject to incomplete disciplinary proceeding, reaches the end of the fixed term engagement period, his/her statutory right to release or discharge means that the individual may not simply be retained in the Regular Force until those proceedings are complete. In all instances of this nature, early legal advice is to be sought.

[59] The end result is that if the NZDF wished to retain jurisdiction over Mr Keat pending the completion of disciplinary proceedings, they needed to offer him a further period of service or transfer him to the reserve forces. They did neither. As a result he is no longer subject to the Act and the Court Martial no longer has jurisdiction to try him on the charges brought against him. On that basis we decline to direct a retrial.

[60] Does this lead to an unfair or perverse outcome? In our view it does not. Whether a retrial is ordered is always a matter of balancing all the interests,⁴⁰and the balance alters when a person is no longer subject to the Act.

[61] The respondent considers that a retrial is important from the perspective of the military. We are told that the Director of Military Prosecutions wished to proceed with a retrial because, even if the effect of punishment on Mr Keat is minor, “it may have a personal deterrent effect and it will likely have a collective deterrent effect.” It is said that a conviction and sentence “will demonstrate the significance of the offending to the wider military community.”

[62] There are a number of points that arise from that. First, we acknowledge that the NZDF considers the prosecution of these charges to be very important (concerned, as they were, with trust and integrity at a senior level). Regardless of the limits there now are on penalty, if a retrial resulted in convictions that would send an important message to the wider military community. However, we note that the NZDF has already shown that it takes the allegations made against Mr Keat very seriously. It was prepared to bring charges and on conviction it considered the appropriate penalty was dismissal. General deterrence objectives were met by those actions regardless of whether there is a retrial. By declining to order a retrial on the grounds that there is now no Court Martial jurisdiction over Mr Keat, we do not intend to undermine the NZDF’s view of the serious nature of the alleged offending.

[63] Secondly, a retrial is not necessary for personal deterrence. Mr Keat is no longer subject to Defence Force Orders. Moreover, we expect that if there were lessons to be learnt by Mr Keat, a retrial is not necessary for that purpose. As was said by Henry LJ when deciding not to order a retrial in R v Booth, Wood and

nine months’ imprisonment. If they have not learnt their lesson from all that has happened since their arrest, then that will be an aggravating factor in any crime they may commit. But we are prepared to accept that the lesson has been learnt and in all the circumstances do not think it necessary to order a new trial.

[64] The third point is that, by releasing Mr Keat from the service, the Court Martial can no longer impose what it considered to be the appropriate penalty (namely dismissal). He is no longer part of the service in order to be dismissed from it.⁴²A demotion or stay of seniority would be a theoretical one. A fine would now come from Mr Keat’s civilian resources.⁴³A reprimand could hardly add to the experience Mr Keat has already been through, with being charged, convicted and sentenced to dismissal in the Court Martial.⁴⁴

[65] In short, if the respondent wished to keep Mr Keat subject to the jurisdiction of the Armed Forces Discipline Act pending the outcome of the appeal, in order to retry him on the charges in the event that the convictions were quashed, with the

_{purpose of sending a message to Mr Keat personally or the military
generally about}

range of available penalties is therefore limited. However in these cases the member has agreed

to be subject to the rules of the disciplinary body and the rules have either provided expressly that a disciplinary complaint not disposed of when a person ceases to be a member can be considered and determined or the rules are interpreted as implicitly applying providing for this. See, for example, Harding v Institution of Professional Engineers New Zealand Incorporated [2014] NZHC 2251; Re O’Leary, Disciplinary Tribunal of the New Zealand Institute of Chartered Accountants, 15 April 2014; Re Gray, Disciplinary Committee of the Institute of Chartered Accountants in England and Wales, 15 July 2014; compare with Taub v Investment Dealers Association of Canada 2009 ONCA 628, (2009) 98 OR (3d) 169 where Law Society disciplinary proceedings against a Judge, in respect of his conduct as a lawyer, could not be brought.

how it viewed the alleged conduct,⁴⁵it could have done so. The respondent did not do so. Instead Mr Keat was released.⁴⁶The charges are military specific. Mr Keat is now a civilian. That is the end of it.

⁴⁵Or, for example, because it considered it important that he no longer hold the title Commodore

⁴⁶Counsel for Mr Keat contends he was intentionally “functionally dismissed”. The respondent

disputes this. It is not necessary for us to resolve this (and we could not do so without evidence).

High Court of New Zealand Decisions

Keat v R [2014] NZHC 2784 (10 November 2014)