Sunday, March 20, 2016

First hung Court Martial in New Zealand

On Wednesday 16 March, the Court Martial of New Zealand recorded its first "hung panel".  This is a consequence of section 55(1) of the Court Martial Act 2007, which provides that neither a conviction not an acquittal may be entered unless the (usually three) military members of the Court Martial are unanimous.  The requirement for unanimity was a novel development when New Zealand's military justice system was overhauled in 2009 (with the work required to achieve that starting about six years earlier).  It picked up one of the recommendations made by Mr Justice Lewis in the report of the Army and Air Force Courts Martial Committee, 1946 (Cmd. 7608), which reported to the British House of Commons following concerns about the fairness of military justice during World War II.  That recommendation was not adopted at the time by Her Majesty's Government in London, nor by any of Britain's Commonwealth partners, including New Zealand.

The philosophical starting point for section 55(1) of the Court Martial Act is that all of the military members are by definition qualified, experienced and reasonable persons.  Accordingly, no finding should be recorded in respect of which one of them does not agree.  In terms of the criminal standard of "beyond reasonable doubt", it is perhaps especially important that no accused person is convicted if one of the military members harbours such a doubt.

The process to be followed following a "hung panel" is that the presiding Judge must refer the charge back to the Director of Military Prosecutions ("DMP") by way of a memorandum under seal covering the charge sheet.  It is a matter for the DMP to decide whether to trigger a new trial by re-laying the charge sheet before the Registrar of the Court Martial.

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