A hearing ahead of the espionage trial of a New Zealand soldier and far-right extremist grappled with upholding open justice and balancing acute national security concerns, Marc Daalder reports
Analysis: Chief Judge Kevin Riordan says secret courts aren’t compatible with New Zealand’s justice system, but now finds himself presiding over one of the most secretive trials in recent memory.
The judge voiced his opposition to secrecy at a hearing at Linton Military Camp on Monday, which dealt with issues of name suppression and open justice ahead of the court martial trial of a New Zealand soldier facing 17 charges, including espionage. Yet he also made wide-ranging suppression orders, covering the names and job titles of certain expert witnesses, the names of the accused spy and his partner and the name of the country the espionage charges relate to.
The inconsistency highlights the tensions at the centre of this case, which is expected to involve a significant amount of classified material but which will also be the focus of immense public interest. It is New Zealand’s first ever espionage trial and the defendant’s ties to far-right groups – first reported by Newsroom when he was arrested in December 2019 – will only increase the attention on the case.
While some of the suppression orders related to hardship and mental health, which is not uncommon, Judge Riordan said others were justified because the information could pose a threat to the “defence and security of New Zealand”. That included the decision to suppress the name of the country that the espionage charges relate to.
Two previous attempts to hold the pre-trial hearing earlier in 2021 had been cancelled at late notice. The registrar of the Court Martial told Newsroom in July that the delays were “necessary due to the existence of complex legal and procedural issues that need to be resolved before the key applications for orders at the pre-trial can be considered by the court”.
“This is due, in part, to the implications of presenting evidence before the court which may give rise to concerns relating to the defence and security of New Zealand. Some of these matters have not been dealt with by any court in this country before.”
Another delay arrived on Monday, when the trial itself was postponed to an undecided date. It had been scheduled to start on October 6 as there are matters yet to be resolved around how the Crown will present some of its evidence at the trial.
That evidence was the subject of extensive discussion at the Monday hearing between Judge Riordan, military prosecutors and lawyers for the media. Due to the classified nature of much of the evidence, the Crown had sought an order from the court requiring media to be vetted by police if they wished to hear all of the evidence. Judge Riordan declined to make that order, saying he would instead decide on a case-by-case basis whether a given piece of evidence might be harmful to New Zealand and require excluding the media.
Counsel for media outlets Stuff, RNZ and NZME also argued strenuously against an extension of interim name suppression for the accused soldier, who has been unable to be named in the media since his arrest. Judge Riordan granted the defence’s request for the extension in the end, but said it would be reviewed again at the soldier’s next appearance before the court – likely to be another pre-trial hearing to sort out the remaining evidentiary matters.
The basis for the suppression was the man’s mental health, which Judge Riordan was seeking more information on.
Mental health issues were also the reason the soldier didn’t attend the hearing in person, the judge said. The accused instead attended via Zoom.
The hearing itself took place under Delta Level 2 conditions, with fewer than 25 court staff, lawyers and reporters occupying socially distanced tables in a gymnasium-like room at the Linton Cultural Centre in the heart of the country’s largest army base. The tukutuku panels lining the makeshift courtroom provided an ironic backdrop for the court martial of a man whose house was decorated with Nazi and Confederate flags when it was raided by law enforcement in December 2019.
Newsroom has reported previously on the man’s far-right activism. After his arrest, he ran a racist and homophobic Twitter account on which he identified as a “Nazi”. He was also active on the encrypted chat app Telegram, a hotspot for right-wing extremists, as recently as July 21.