Court Martial Appeal Court holds that Commodore -- Mr. -- Keat may not be retried

Ex-Commodore Kevin Keat, RNZN

In a decision handed down on November 10, 2014 (which, thanks to time zones, is tomorrow), the Court Martial Appeal Court of New Zealand has ruled that ex-Commodore Kevin John Keat, whose conviction was previously set aside, may not be retried. From the decision in Keat v R [2014] NZHC 2784:

[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.

Other matters

[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, and 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. . . .

[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. A demotion or stay of seniority would be a theoretical one. A fine would now come from Mr Keat’s civilian resources. A 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.

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

Result

[66] We decline to exercise our discretion to order a retrial.

[Footnote omitted.]