The veil of secrecy still shrouding a first-of-its-kind military prosecution for attempted espionage could soon be lifted when the suppression orders are re-examined.
A soldier, whose name is still suppressed for now, was sentenced to two years of military detention at the Burnham camp after admitting he tried to spy on New Zealand.
But the soldier, who has links to far-right groups, was instead caught by New Zealand authorities in an undercover sting.
The Court Martial Appeal Court, in late October, will hear appeals about the soldier's suppression and his sentence.
At the same time, RNZ will ask the court to hear its appeal against the decision to suppress the name of the foreign country the soldier thought he was dealing with.
Harm to NZ: 'Could mean anything'
The country at centre of the failed spying attempt wasn't mentioned once during the soldier's three-day court martial at Linton Military Camp near Palmerston North in August.
There, Judge Kevin Riordan ordered its permanent suppression.
Retired Auckland University law professor Bill Hodge told RNZ that although courts martial were open hearings, judges had lots of power to suppress names and evidence.
"One of the reasons is that it would be useful to an enemy. Who's the enemy? Well, that's not necessary. All the judge has to find is the other clause - that it would be otherwise harmful to New Zealand," Hodge said.
"That could mean anything. It could be economic. It could be trade. It could be tariffs."
Such is the secrecy that the lawyer representing RNZ, Robert Stewart, KC, and RNZ's general counsel Luke Bodle were police vetted, and were required to give an undertaking not to disclose the affidavits containing the reasons why the Crown sought suppression of the name of the country concerned.
The undertaking required them to keep the restricted information "secured in a locked cabinet, drawer or container at all times" when not being used.
Hodge said what the court martial judge heard about the consequences of naming the country was unknown.
"There's a wonderful statement by the chief of the army, Rose King, explaining what happened. There was a guilty plea - three charges. It was not espionage. It was attempted espionage. That's good. They got a two-year sentence down at, I used to call it, the Stockade."
That statement from King said: "The offender sought to disclose official, including classified, information to a foreign entity. The prejudice to New Zealand's national security was assessed by an independent expert to be significant."
Hodge said: "The appeal, of course, will be, well, who was it, and who was the foreign jurisdiction? Interestingly, she doesn't use the term foreign country. [RNZ] did. She uses the term foreign entity. That could be an international organisation. It's deliberately vague, I think, but the statute gives them the power to suppress that."
Public naming 'part of the deal' when crime committed
To the undercover agent, the soldier passed information such as passwords to the Defence Force communications system, his identity card, access codes to Linton Military Camp and Ohakea air base, and phone books.
He also possessed a copy of a video of the Christchurch mosque attacks, and the terrorist's manifesto - both of which are banned in New Zealand.
The soldier came to the attention of authorities after the March 2019 attacks through his involvement in nationalist groups Action Zealandia and the Dominion Movement, and because he expressed a desire to defect from New Zealand.
He later said he felt unfairly targeted when the police were scrutinising people with far-right links.
The soldier is the first person charged with espionage or attempted espionage in a New Zealand military court.
Judge Riordan declined an application to permanently suppress the soldier's name, but because the soldier's lawyers appealed this, his identity has stayed secret.
Hodge would like to see the soldier named.
"I don't see the value in suppressing the name. And indeed the public obloquy, to use an old-fashioned term, is part of the punishment, so that the person is known in the community, and that's part of the deal when he committed the crime."
Security concerns a high threshold
Retired Court Martial Appeal Court judge John Billington, KC, said the main difference between courts martial and general courts were matters of security.
"The court martial court is a court by definition and as such its powers of suppression, or non publication, are identical to any other court. They are set out in the Criminal Procedure Act and largely relate to undue hardship and extreme hardship - extreme hardship to the offender, undue hardship to associated parties and to victims.
"The extension under the Armed Forces Discipline Act goes to matters of what I would broadly describe as national security, so I agree with Professor Hodge, but that may involve personnel, operational matters - so matters that will affect the safety and welfare of defence personnel or our national security collectively as a nation or aspects of it."
Billington said he could only remember security being raised once in his 12 years on the appeal court.
"In most respects the court martial jurisdiction pretty well mirrors that of the civilian jurisdiction, with some extra offences that are otherwise available - they're military-centric.
"Other than that, it would be a high threshold to be concerned about matters that may affect the welfare and security of our nation or people who are taking care of it."
Courts would sometimes require lawyers not to disclose documents to anyone else and introduce requirements to allow that, such as the measures RNZ's lawyers were complying with.
Security vetting was normal in such cases, Billington said.
"Refugee cases are another example where material is filtered in that way to enable the court and counsel to properly understand the issues, and then if the decision is to open it up, it gets opened up. But if not, then at least there is an understanding as to why," he said.
"Open justice is still the paramount consideration, and the legislation makes that very clear. The court is an open court, except for what largely are exceptional cases."
Soldier wants to avoid jail
The Defence Force has appealed against the sentence imposed on the soldier - two years' military detention before he's kicked out of the armed forces - saying it's "manifestly inadequate".
The Court Martial Appeal Court can change his sentence to one in civilian prison, something the soldier wants to avoid.
Hodge said military detention wasn't easy.
"The convict will still be subject to military discipline and it won't go quickly. So on one side it's going to be tough two years," he said.
"On the other hand, two years doesn't seem like a long sentence for attempted espionage, so that will be subject to the appeal."
Whatever happens, Hodge said he was impressed by the process. It seemed fair and in accordance with the Bill of Rights.
Billington said military detention, of which two years was the maximum, sat under imprisonment in a civilian jail in the hierarchy of sentences.
After a short period in military custody, the soldier spent 2076 days under open arrest before his court martial, with varying conditions over time.
As the soldier's commanding officer summarised for the court martial hearing, the soldier said his open arrest conditions were restrictive.
"Alongside being unable to work or study he had to check in at the camp four times a day and could not use any communications or internet-enabled devices," the commanding officer said of the soldier's statements.
To a report writer, the soldier said: "When my wife was heavily pregnant with our first child I wasn't allowed to call her or be contactable in any way. So, she could have gone into labour and I would have had no way of knowing."
The military had a different perspective, saying the reporting requirements were relaxed over time.
"There was no express prohibition on [the soldier] not having a phone that was not a smart device. In an open arrest condition signed on 29 May, 2020, he was expressly permitted to have a cell phone that was not a smart phone. At no time were the conditions preventing [the soldier] from contacting his wife," the commanding officer said.
The soldier didn't speak at the court martial, but in a statement read to the hearing he said he regretted his involvement in far-right groups, albeit organisations he described as just collections of like-minded friends.
