For the first time, reports from the NZDF to the Attorney-General have been obtained and can be publicly disclosed.

The New Zealand Defence Force (NZDF) operates its own distinct justice system, designed to uphold discipline and address wrongdoing within its ranks. Central to this system is the office of Director of Military Prosecutions. This office is held by the Director of Defence Legal Services, currently a Brigadier, who exercises this function an independently and decides who faces trial in the Court Martial of New Zealand and on what charges.

Annual reports from the Director of Military Proceedings to the Attorney-General offer a unique window into the types of offences prosecuted, the challenges faced, and the evolution of military justice. An analysis of these reports from the year ending June 2019 through to June 2024 reveals significant trends and recurring issues.

The Court Martial Caseload: A Steady Stream

While the reports consistently state that serious offending remains “relatively rare” as a percentage of total personnel, the number of cases reaching the Court Martial saw a notable increase after 2019. Following this rise, the caseload has remained relatively consistent in subsequent years.

One key factor cited for this sustained level of activity is a 2019 decision by the Armed Forces Discipline Committee (AFDC) – a body responsible for overseeing the military discipline system – which lowered the threshold for offences that must be tried in the Court Martial rather than being dealt with summarily by commanding officers. This change ensures more serious or complex matters automatically proceed to Court Martial.

Spotlight on Serious Offences: Drugs, Violence, and Misconduct

Across the six years reviewed, certain types of serious offences appear frequently in the Court Martial:

Drug Offences: From cannabis to MDMA and even Class A drugs like LSD and cocaine, drug use, supply, and procurement have been persistent issues leading to Court Martial trials. Cases like R v Davies and Fairbank (2019), involving multiple charges and significant sentences including detention and dismissal for RNZAF members, and R v Onehi (2021), concerning the supply and use of LSD resulting in a 24-month detention sentence (later partially remitted) and dismissal from the NZDF, underscore the seriousness with which drug offending is treated. Admissibility of evidence, often linked to searches of phones or premises, has also been a point of legal contention in several drug cases.
Assault and Violence: Charges range from common assault to more severe acts like wounding with intent, injuring with reckless disregard, strangulation, and assaults involving subordinates or recruits. The 2024 report detailed the R v D’Ath case where a recruit was convicted of strangling fellow recruits during training.
Sexual Misconduct: Indecent assault charges are a recurring feature, often arising from incidents at social functions, in barracks, or during overseas deployments, sometimes involving personnel from allied forces. Cases like R v Stewart (2021), where PTSD from operational service was raised in mitigation for indecent assaults, and R v L (2021/2022), involving sexual violation and indecent assault charges against colleagues while posted overseas leading to retrial and eventual conviction, highlight the complexity and seriousness of these cases.
Dishonesty and Fraud: While less frequent than assault or drugs, serious instances of fraud have been prosecuted, such as the 2020 case of R v Mailatu and Tana, where two Army Corporals faced 42 charges related to false claims and attempting to pervert the course of justice.
Espionage: Perhaps the most unusual and serious matter highlighted is the case against a member of the Armed Forces facing 17 charges, including five counts of espionage. First mentioned in the 2021 report, this complex case was still awaiting a trial date as of the June 2024 report, with the individual remaining in service under open arrest conditions.

Navigating Justice: DMP Discretion and Procedures

The DMP holds significant discretionary powers that shape how cases proceed:

Stays of Proceedings: This power allows the Director of Military Proceedings to halt a prosecution. It has been used sparingly but for compelling reasons, such as preventing oppression when an accused faced significant mental health challenges or extreme personal circumstances (like the 2019 case involving a Lance Corporal grieving the death of her child while deployed), or when excessive delay made continuing low-level charges inappropriate, or where a key complainant withdrew.
Waiver of Court Martial: A key procedural development allows the Director of Military Proceedings to waive the mandatory Court Martial requirement for certain offences if they are deemed low-level and likely to attract a sentence within a Commanding Officer’s summary trial powers. Introduced following AFDC approval reported in 2021, this power has been increasingly utilised, particularly for less serious indecent assaults or minor dishonesty cases, streamlining the process. However, the Director of Military Proceedings can, and does, decline waivers if the alleged offending warrants Court Martial consideration.
Referral Back to Lower Level: The Director of Military Proceedings can also refer cases back to disciplinary officers with directions, sometimes leading to dismissal if the evidence is insufficient or prosecution isn’t in the public interest.

Appeals, Sentences, and Reviews

The military justice system incorporates avenues for appeal and review:

Appeals Courts: The Summary Appeal Court of New Zealand (SACNZ) hears appeals from summary trials, though its caseload showed a declining trend in later years. The Court Martial Appeal Court (CMAC) reviews decisions from the Court Martial, handling appeals on conviction, sentence, and pre-trial rulings. CMAC decisions have led to retrials (L v R) and adjustments to sentences (Stewart, D’Ath).
Sentencing Outcomes: Dismissal from the NZDF is a common penalty accompanying convictions for serious offences like drug supply, significant fraud, or sexual misconduct. Detention in the Services Corrective Establishment is also frequently imposed. Sentences can be significantly discounted for guilty pleas or other mitigating factors, but factors like deterrence and victim views are also weighed, as seen in Reconsidering Authority decisions.
Reconsidering Authority: This body acts similarly to a parole board, reviewing sentences of detention. It has the power to remit (reduce) sentences based on factors like conduct and rehabilitation, but can also decline remission.

System Evolution: Adapting to Challenges

The reports demonstrate a system undergoing continuous refinement. The AFDC has been active in amending rules and guidelines related to sentencing principles (especially for sexual offending), procedural thresholds, investigative independence, and name suppression.

A 2021 external review by the Crown Law Office concluded that military prosecutions were generally conducted well, while also recommending areas for improvement, such as clarifying the application of prosecution guidelines and managing the potential conflict of interest inherent in the Director of Military Proceedings also holding the role of Director of Defence Legal Services.

Conclusion: A System Under Scrutiny

The annual reports of the Director of Military Prosecutions from 2019 to 2024 paint a picture of a justice system actively addressing a range of serious misconduct within the NZDF. Trends show a consistent focus on drug offences, various forms of assault including sexual misconduct, and the emergence of unique challenges like the ongoing espionage case.

The system demonstrates adaptability through procedural reforms like the Court Martial waiver system, aiming for efficiency while ensuring serious matters receive appropriate judicial scrutiny.

Through the independent oversight of the Director of Military Proceedings (although the degree of perceived independence has been scrutinised), the decisions of appeals courts, and ongoing procedural reviews, the NZDF continues to navigate the complex task of maintaining discipline and delivering justice within its ranks.