Until recently, it was common for service people who were witnesses in a disciplinary investigation to be required to attend an interview and answer questions. Often, this requirement was framed as an order.
This has now changed. In a recent Court Martial case, the Judge issued the following ruling:[1]
Nor I am not persuaded that [a witness] can be lawfully commanded to make a statement. At best he could be ordered to attend on the military police. However, if it is a normal and routine method employed by investigators of senior rank to have unwilling witnesses of lesser rank answer questions in a disciplinary investigation, by ordering them to do so it should not be. A “lawful” command is one that is not contrary to New Zealand law (including armed forces law) or international law. Giving a command to a member of the NZDF to make a statement thereby circumventing their right to silence would be, to my mind, contrary to New Zealand law. And NZDF personnel are not expected to follow commands that are unlawful. I consider that the right to silence is a proper limitation on the power of command.
The concept of a witness having a “right to silence” is new, previously it was only suspects or people who might incriminate themselves that had a right to silence.
There is some ambiguity in the relevant part of DM 69 (2 ed) Vol 1, which states that an investigator must not suggest that it is compulsory for a person to answer questions – but this restriction is under the heading “Questioning of Suspects”.[2] The Court Martial addressed this point, stating:
While paragraph 3.1.2 falls under the section headed “Questioning Suspects” I do not agree with [defence counsel] that the rights referred to therein are confined only to those suspected of committing an offence. The rights of a suspect and the appropriate caution to be advised to a suspect by an investigator are set out in a separate paragraph. While the overall scheme of the manual, including its headings, can be helpful in interpreting the words in paragraph 3 .1.2, the words need only be given their natural or ordinary meanings. Paragraph 3 .1.2 pertains to rights and duties in connection with “any person” questioned by an investigator as part of an inquiry in the collection of evidence. “Any person” means exactly that. The words are not limited to a suspect; in fact, the use of the words “including any suspect” which refers back to “any person” is intended to convey that the former group is wider than the latter description used. It follows that care must be taken with “any person” questioned (be it a complainant, potential witness, or suspect) not to create in their mind the impression that they must provide answers such is their general right to silence.
This ruling was supported by submissions made on behalf of the Director of Military Prosecutions, who has an obligation to act as a model litigant in all prosecutions. It would not be fair for the Director of Military Prosecutions to argue one approach when it suits a particular case, but not adhere to the same position when it is not convenient.
What Does this Mean for You?
We consider that the Director of Military Prosecutions now has an obligation to maintain the legal position that a witness cannot be ordered to answer questions, and advise the Military Police and wider NZDF accordingly.
Witnesses should be clearly told that they do not have to answer any questions, and that they may leave the interview at any time.
Particular care will need to be taken in a training environment where there is a significant power imbalance between trainees and instructors who are investigating an alleged offence.
If information provided by a witness who has been ordered to answer questions, or is under the impression that they were required to answer questions, this could be a reason for an application to exclude that evidence at Court Martial.
If you are spoken to by the Military Police, ask if you have to answer their questions. If they say yes, make sure that this is noted in any interview notes that are taken.
If you think that you might be in trouble, you don’t have to answer any questions. If you are cautioned (being “read your rights”) you should talk to a lawyer before deciding whether to answer any questions. The NZDF have a list of lawyers you can speak to for free, which includes us.
You can contact Frontline Law on 0800252748 and speak with a lawyer experienced in military discipline matters.
Frontline Law is a team of talented lawyers, most of whom have previously served in the Armed Forces, New Zealand Police, and other uniformed organisations.
The first step in getting support is to talk with a lawyer from Frontline Law about your situation and see what options we can offer you. Contact Frontline Law for a free initial consultation.
[1] R v M (pre-trial ruling) [2024] NZCM 2249, at [13]
[2] DM 69 (2 ed) Vol 1, at [3.1.2]
