DEFENCE FORCE INVESTIGATIONS: cause and accountability
Understanding the Cause of the Accident
A Court of Inquiry (COI) is designed to provide an officer in command with an expeditious fact finding procedure so that a matter can be promptly investigated and if necessary, prompt, remedial action can be taken. It does not determine guilt. A COI may be assembled to collect and record evidence on any matters referred to the court.
A COI is mandatory where a member of the armed forces dies or is seriously injured in the course of his or her duties, unless the death or injury occurred during armed conflict/armed combat operations, or where it is investigated as a disciplinary matter.
A COI does not replace other inquiries, such as those conducted by Police; Ministry of Business, Innovation and Employment; Coroners.
A COI must consist of not less than two members, of whom at least one must be an officer and the other or others must be officers, warrant officers, or members of the Civil Staff of equivalent standing. The Assembling Authority must appoint one of the members who is an officer to be the president. The Assembly Authority may appoint a barrister or solicitor of the High Court to assist the COI; and must appoint Counsel Assisting, if the inquiry is complex or serious or likely to affect the character or reputation of any person.
The record of proceedings and any evidence is not admissible in evidence against any person in any other proceedings, judicial or otherwise, unless charged with specific offence of making a false statement or perjury; or where a declaration has been made of desertion/ absence without leave.
An Assembling Authority orders the assembly of a COI. The Assembling Authority is normally the officer in command of that part of the Defence Force involved in the matter. The composition of the court, the place and time at which the court is to assemble, and the terms of reference of the court are all specified. For a mandatory COI the terms of reference must be drafted by a legal officer.
Record evidence of witnesses
A COI sits in private and records the evidence of every witness. The COI can require production of evidence and compel witnesses to attend; evidence is given on oath. Witnesses have statutory privileges and protection and Natural Justice must be must accorded, where adverse findings may result.
Initial findings of the COI
The COI must address all terms of reference in the findings. The COI cannot determine guilt or innocence. The COI can make recommendations The record of proceedings must, at the conclusion of the inquiry, be signed at the end by each member.
Natural justice process
The draft of the COI Report is discussed with relevant interested parties and their feedback is then considered by the Assembling Authority.
Assembling Authority comments
The president must forward the record of proceedings to the Assembling Authority who must put on the record his or her own opinion of the findings, sign the record, and if necessary, forward the record to a superior commander.
Only then is the Report of the COI considered complete.
Understanding who is Responsible
Where there is an allegation of offending by a person subject to the Armed Forces Discipline Act 1971 (AFDA), a disciplinary inquiry is conducted to determine whether the allegation is well-founded. If the commanding officer does determine that there is a well-founded allegation then it is mandatory to either record it as a charge or refer it to the Police or other civil authority.
A preliminary inquiry is conducted by or on behalf of the CO, to enable the CO to determine whether the allegation is well founded. The investigator could be any member of the Armed Forces or a member of the Military Police.
Once the allegation has been recorded in the form of a charge, it is then formally investigated by a Disciplinary Officer.
At the summary proceeding which is a military tribunal, the Disciplinary Officer will take a plea and hear evidence, before determining whether the matter will be tried summarily or be remanded for trial by the Court Martial.
At this stage there are no legal representatives. However, appropriately ranked certified officers or non-commissioned officers (NCOs) are appointed to the roles of defending and presenting officers.
The matter is determined by the Disciplinary Officer and there is a set of maximum punishments that can be awarded, dependant upon the rank of the accused.
Summary Appeal Court of NZ
If an accused is found guilty, the charge and or punishment can be appealed to the Summary Appeal Court of NZ.
Sits in open court, other than deliberations in closed court. The accused may be represented by a defence lawyer. Presided over by a Judge appointed to the Court Martial, and appointed military members perform a role very similar to a jury. Appeals may be made, in certain circumstances to the Court Martial Appeal Court, the Court of Appeal or the Supreme Court.
The officer in command of any part of the Armed Forces may order a command investigation into any matter within his or her command.
Command Investigations would normally occur for less serious matters that do not require a COI.
The investigation is a simple, informal process with the aim of ascertaining what has occurred in a particular situation, without the expenditure of resources or the formality inherent in a COI.
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