Commodore Kevin Keat, who was kicked out of the Defence Force over an affair with a civilian subordinate, has had his convictions quashed.
The Court Martial Appeal Court yesterday took issue with the way Keat's court martial last year at Trentham Military Camp was conducted.
It found failings with the legal process that were serious enough for it to label Keat's convictions "unsafe". But at the same time, the door was left open for a retrial.
Keat, 55 and married, was found guilty in October of five charges relating to a sexual relationship he had with a woman in 2008.
Chief judge of the court martial Chris Hodson, QC, dismissed Keat from the navy for failing to disclose and end the relationship, lying about it when he was asked, and using threatening language towards the woman.
But in a 71-page decision yesterday, Justice Jillian Mallon, on behalf of the appeal court, said Hodson had failed to properly direct the three-person military panel at Keat's court martial on the issue of his state of mind, and had failed to properly summarise the defence case.
Keat's convictions were quashed as a result, but the appeal court was unable to say whether or not they would have been proven if the correct process had been followed.
Because Keat's contract with the Defence Force was due to expire in February, it was unclear whether a retrial was desirable or necessary, Mallon said. Legal teams on both sides have been asked by the court to sort the issue out.
Mallon said it was established at the court martial that Keat was in an "unprofessional close personal relationship" with a female subordinate.
But the prosecution needed to prove he regarded the relationship this way, and that was not made clear to the military panel who decided his fate.
Keat claimed the relationship was casual and ended in 2010. But the woman said it continued until late 2012.
"Criminal law requires proof that a person not only did . . . an act which constitutes an offence, but also that they did so with a guilty mind," Mallon said.
The military panel was also asked to consider whether inconsistencies in Keat's evidence suggested he was lying about aspects of his relationship with the woman because he knew he was in the wrong. But this was not the only inference that could be drawn, Mallon said.
Keat's defence team presented evidence at the court martial to paint the complainant as "difficult and intimidating" in order to discredit her account of the relationship. But the relevance of this evidence was not explained properly, according to Mallon. "We note that the case was a difficult one factually and legally."
Keat's lawyer, Michael Bott, said the woman at the centre of the complaint had a history of bullying, intimidation and complaints.
The decision was the correct one as a matter of law, he said.
- The Dominion Post