SAS soldier's appeal successful
A Special Air Service soldier has overturned a court-martial conviction for stealing army property and trying to sell it to an Auckland gun store.
A three-person Court Martial Appeal Court, sitting in Wellington, threw out four convictions against the soldier known as "S".
Extensive suppression orders have been issued around the judgment.
They ordered that a single charge that the soldier pleaded guilty to of failing to obey a written order. relating to a firearm found in his barracks room, be sent back to the court martial and that no further action be taken.
The court martial on 12 charges sat late last year at the SAS base in South Auckland.
On the day the soldier turned 30 he was found guilty and fined $4700 for unlawful possession of service property and three offences of stealing service property. They related to rifle sights, a rifle charging handle and thunderflashes or noise grenades.
The victory came too late for S who was forced out of the SAS and has now left the army.
Through his lawyer, Melinda Mason, he said he was relieved justice had been done "but it is has been an exhausting process".
Ill-treatment from SAS management during the investigation, the hearing and since the hearing had made him feel he needed to leave the army and New Zealand to take a break from what he had endured.
He appreciated the support of his fellow soldiers in the unit who he continued to have respect for. He hoped this case had not affected or detracted attention from the hard work that SAS soldiers did, S said.
The court martial had painted a picture of New Zealand's top soldiers in Afghanistan scavenging through discarded US military equipment they could use from the US base at Bagram.
S, who had two tours of duty in Afghanistan, was accused of selling J Points or optical rifle sights to South Auckland's Serious Shooters retail store.
He also tried to sell a charging handle for a rifle and a pistol holster.
After the shop alerted the army, military police searched S's barrack room, car and a garage.
A firearm was found under a couch in his barracks room. It was for this that S pleaded guilty to disobeying a written order not to keep weapons in the barracks.
A search of a garage produced a 200-gram block of Semtex explosive, a few rounds and the thunderflashes.
The appeal court said that J Points had serial numbers on them, but that the SAS had bought directly from the United States and sent them to Afghanistan without recording the serial numbers.
Soldiers returned to New Zealand and handed the J Points back.
Defence Force records showed all had been accounted for.
S had acquired at least three J Points and had "definitely traded for a couple" from Australian counterparts.
S's troop commander confirmed that soldiers were getting equipment from the US discard bin.
The appeal court said there was no evidence S had lied.
There was no record of any missing sights, S's kit was all accounted for and it was not possible to tell whether the J Points shown to Serious Shooters were military equipment.
Evidence also showed S was a loyal, trustworthy and "good round bloke".
The court found much the same on the case of the charging handle that is attached to a firearm to pull back the bolt to load it.
S had said he had acquired his own on the internet for US$70 (NZ$80) and produced visa card statements of the purchase.
The military was not missing any charging handles.
The appeal court said the guilty verdicts had been unreasonable.
On the thunderflashes, the appeal court said the court martial judge had not made it clear that if something was in a garage which a person leased that that meant the person had possession of it.
"The verdict of guilty was not a reasonable one on the evidence."
The appeal court quashed the convictions the military panel had found S guilty of.
It did not quash the firearms charge which he had pleaded guilty too.
But it said he had been convicted on that linked to the other charges and as a result it needed to be referred back to the court martial.
The appeal court said the proper course would be to take no further action on that minor charge.
"Indeed, S may not even have been charged at all if the only matter was that he had improperly stored a firearm for reasons which he explained at the time."