Courts boss faced military prosecution

ANDREA VANCE
Last updated 05:00 09/08/2014
Karl Cummins
KEVIN STENT/ Fairfax NZ
SOLDIERING ON: Karl Cummins has swapped a uniform for a suit.

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A former SAS commander, now in charge of some of the country's courts, backdated a search and seizure order after drugs and weapons were found at a military camp.

Lieutenant Colonel Karl Cummins, 44, was cleared last week of four counts of negligence and of making false documents at a military summary trial. He admitted signing two minutes, which authorised the search and seizure operation two days after it took place.

In a legal first, Fairfax Media yesterday overturned a suppression order granted by a military disciplinary officer banning the publication of Cummins' name.

Fairfax lawyers argued that his new job as Ministry of Justice deputy secretary - overseeing the running of courts and tribunals - meant the public had an interest in scrutinising his conduct.

He was not stood down from the job, which he took up in March. On leave from the Defence Force, he was approached by Justice Secretary Andrew Bridgman about the two-year appointment last year.

The trial heard Cummins verbally authorised the search at the SAS base in Papakura in April last year. It was carried out within a week, but the military police paperwork did not reach him until two days later.

The minutes authorising the search and seizure were mistakenly dated with the month of April for the search, with a blank space for the date, the tribunal heard. Cummins admitted signing the minutes two days after the operation had been carried out, because he says he was told this was standard practice.

His counsel, Lieutenant Colonel Steve Watt, said he was a scapegoat, and was given bad advice. The tribunal heard the Defence Force is reviewing the practice.

Prosecuting officer Lieutenant Colonel Phil Halligan argued Cummins was responsible for the content of the documents he signed.

Brigadier Charles Lott cleared Cummins of four charges, two of making a false official document and two alternative charges of negligently performing a duty.

However, he said there was a breach of "mechanical and technical process".

"I accept and assess that your actions were not false," he said. "They weren't negligent and, in the accepted sense of the word, they were not fraudulent . . . in saying this, I do, however, need to make clear that people like ourselves in positions of trust and responsibility must at all times carefully consider the consequences of their actions with regard to the transparency and audit ability of documentation supporting actions against an individual."

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Cummins' backdating of the minutes has already been the subject of criticism by the Court Martial Appeal Court after the trooper who was the subject of the search and seizure order successfully appealed against his court martial. That part of the appeal court's judgment was itself suppressed until the charges against Cummins had been disposed of.

The appeal court said the documentation authorising the search and seizure was very poor and amounted to "unacceptable practice".

"On their face, the documents purport to record a written authority to search made in advance of the search taking place. In fact they were prepared ex-post facto in order to provide documentary authority for items that had already been seized.

"We were informed that steps have been taken to ensure that this does not happen again. It is important that it does not."

The appeal court accepted the backdating of the minutes did not mislead anyone.

After receiving notice of Fairfax's intention to challenge name suppression, the disciplinary officer hearing the charges made a further suppression order before hearing Fairfax's submissions.

In a hearing yesterday, lawyer Robert Stewart, for Fairfax, argued an acquittal did not automatically mean suppression should be granted. Cummins' new job - in a "crucial arm of government" - meant the public should be entitled to debate and comment on his conduct.

Watt argued permanent name suppression should be granted because the process was an internal disciplinary matter and publication would cause "disproportionate harm" to his reputation.

Lott did not accept the statutory criteria for a permanent suppression order had been satisfied, and agreed to revoke the suppression.

Bridgman was informed of the charges against Cummins in May.

"This was an employment matter with the New Zealand Defence Force. The ministry has an obligation as a good employer not to prejudge the outcome of a disciplinary matter involving the NZDF," a spokesman said.

A NZDF spokesman said: "This matter has demonstrated that the NZDF military justice system is effective and fit for purpose, and that it is conducted fairly and as transparently as possible, given the special considerations of the military environment."

- The Dominion Post

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