Part 6: Secondment of Officer 4, and the Military Police's investigation and report

Inquiry into New Zealand Defence Force payments to officers seconded to the United Nations.

6.1
In this Part, we describe Officer 4's secondment and what happened after the UN found out that Officer 4 was not declaring his accommodation assistance. We discuss:

Secondment of Officer 4

Officer 4 had previously been the Military AdviserB to New Zealand's UN mission in New York. He understood the UN's requirements and knew that previously seconded officers had made false declarations. At the time NZDF seconded him to the UN, NZDF was aware that allegations had been made of financial irregularities during his term as Military Adviser.

6.2
Officer 4 had been the Military AdviserB in the New Zealand Permanent Mission to the UN in New York from January 2002 until July 2006. He was nominated for a position within the Department of Peacekeeping Operations at the UN in 2006. He started a six-month appointment with the UN in October 2006.

6.3
On 19 September 2006, before Officer 4 was seconded to the UN, the new Military AdviserC wrote to the Chief of Defence ForceC about alleged financial irregularities at the Military Adviser's post that had occurred during the term of the Military AdviserB from January 2002 until July 2006. The Military AdviserC also advised in that letter that he had been visited by a US Customs representative from the State Department about a large delivery of duty-free goods made to the Military AdviserB in July 2006. The Military AdviserC advised that the State Department official inferred that the goods had been sold or gifted in the US or had been exported.

6.4
The Military AdviserC wrote to the Vice Chief of Defence Force in late February 2007 and again raised concerns about Officer 4's behaviour after he had ceased to be Military Adviser.

6.5
We were told that the then Vice Chief of Defence Force reviewed the letter sent by the Military AdviserC and determined that no action was necessary. So far as we know, this assessment was not communicated back to the Military AdviserC.

Why Officer 4 did not declare his accommodation assistance

Like the officers seconded before him, Officer 4 believed that NZDF expected him to sign the UN's declaration and receive the UN's rental subsidy.

6.6
Having previously been the Military AdviserB, Officer 4 was aware of the issues about the UN's rental subsidy that the other seconded officers had dealt with. He signed the rental subsidy application form stating that he was not receiving any accommodation assistance from his home state. This was untrue, because NZDF was paying him accommodation assistance.

6.7
Officer 4 believed that NZDF expected him to sign the declaration to receive the UN's rental subsidy, which would be used to offset the accommodation assistance that NZDF paid. When we interviewed Officer 4, we discussed with him the email he had received from the Director of Services in November 2002 about the conditions of service for Officer 2. Officer 4 noted that this email had been sent to the Assistant Chief PersonnelB and Deputy Assistant Chief PersonnelB and neither had advised him to do other than he was being advised to do by the Director of Services. He considered that Personnel branch and Services directorate staff were well aware of this issue.

6.8
Officer 4 was also aware from discussions with Personnel branch staff amending the Defence Force Order in 2004 and 2005 that they knew that the seconded officers were not declaring their accommodation assistance and knew that this breached the UN's requirements.

6.9
In April 2007, Officer 4's secondment was extended for a further six months. In July 2007, the UN became aware that Officer 4 was receiving accommodation assistance from NZDF that he had not declared to the UN. NZDF was also alerted to the matter at about the same time through New Zealand's diplomatic channels. The UN's Office of Human Resources Management asked Officer 4 to explain in August 2007, and he sought advice from NZDF about how to deal with this.

Military Police's investigation and report

NZDF sent a Military Policeman to New York to investigate Officer 4's false declaration and alleged financial irregularities during his term as Military Adviser. The Military Policeman's report identified that three other officers may also have made false declarations, and that NZDF had paid accommodation assistance to the seconded officers in accordance with a Defence Force Order.

6.10
In August 2007, NZDF sent a Military Policeman to New York to investigate the alleged false declaration made by Officer 4 to the UN and other matters involving Officer 4.

6.11
In September 2007, the Military Policeman, in his report to the Vice Chief of Defence Force, identified that Officer 4 had been paid accommodation assistance in accordance with Defence Force Orders. He also stated that there had been three other NZDF officers who had also been similarly paid while seconded to the UN.

6.12
The Military Policeman also identified several matters of concern relating to Officer 4's conduct while Officer 4 had been the Military Adviser or shortly after he had ceased being the Military Adviser. In particular, these matters included the alleged purchase of a large amount of duty-free alcohol on behalf of another person, which breached US Federal Regulations. In his report, the Military Policeman advised that he considered that there was sufficient information to lay several charges against Officer 4, including one in relation to the false declaration he had made to the UN. The other charges related to Officer 4's conduct during his term as the Military Adviser or shortly after.

6.13
The US Department of the Treasury, Alcohol and Tobacco Tax and Trade Bureau had been investigating the allegations that Officer 4 had purchased duty-free alcohol and cigarettes and supplied them to a third party. Directorate of Legal Services staff told us that US Federal officials had indicated to them that they would ordinarily have sought to prosecute Officer 4. They agreed not to on the basis that he would be dealt with by NZDF and removed from the US at the end of his secondment to the UN. Officer 4 returned to New Zealand in October 2007.

6.14
Once Officer 4 returned to New Zealand, he was posted to his service but was, in effect, placed on leave. In October 2007, the Vice Chief of Defence Force directed that an audit be carried out of the General Ledger of the Military Adviser during Officer 4's tenure in that role. This was done and the Military Policeman then carried out further interviews as a result of the audit. In December 2007, the Military Policeman prepared a further report recommending the laying of further charges against Officer 4.

Charges laid against Officer 4

NZDF did not lay any charges against Officer 4 relating to the false declaration he had made to the UN.

6.15
The charges that the Military Policeman had recommended be laid against Officer 4, in his first and second reports, were referred to the Directorate of Legal Services for legal advice to determine whether they could be laid. Under the Armed Forces Discipline Act 1971, where it is alleged that a service member has committed an offence against that Act, the service member's commanding officer must charge them with that offence unless they determine that the allegation was not well founded.

6.16
To determine whether a charge is well founded, the commanding officer must first determine that there is sufficient evidence, in relation to the allegations made to support charging the service member with that offence. The commanding officer must also determine that there are no other reasons, such as a valid defence, that would not support charging the service member with that offence.

6.17
In January 2008, Directorate of Legal Services staff reviewed the list of proposed charges and advised Officer 4's commanding officer that the proposed charge relating to the false declaration that Officer 4 had made to the UN was not well founded and that Officer 4 should not be charged in relation to the false declaration.

6.18
Directorate of Legal Services staff advised that Officer 4 could rely on claim of right6 in his defence to a charge in relation to making the false declaration, and therefore such a charge was not well founded and a charge relating to that allegation should not be laid. This advice resulted from the realisation that Personnel branch staff knew that seconded officers had not been declaring their accommodation assistance to the UN and that Officer 4 had been acting in accordance with tacit or explicit advice from Personnel branch staff.

6.19
On 7 February 2008, Officer 4 met with his commanding officer and was told which charges he would face. These did not include any charges relating to the false declaration to the UN. He was advised at that meeting that he would not be charged with any offences relating to the false declaration.

6.20
NZDF held a court martial for Officer 4 at the end of June 2008. He was not charged with any offences relating to making a false declaration to the UN. He pleaded guilty to two charges under the Armed Forces Discipline Act that relate to bringing discredit to the Armed Forces and was reprimanded and fined $1500.

6.21
None of the four seconded officers have been charged with offences relating to the UN allowances. In the next Part, we explain that this issue was examined through a military Court of Inquiry, after which each officer received a letter of censure from the Chief of Defence ForceC.

6.22
The court martial of Officer 4 related solely to the other matters that had arisen while he was posted to New York and shortly after his posting ended. In this regard, it was clearly appropriate that he was treated differently from the other seconded officers.

6.23
In relation to the false declaration made to the UN, he was treated differently primarily because it was his declaration that brought the problem to light and because it was initially intertwined with the investigation into his conduct during his time as the Military Adviser and shortly after. Once NZDF determined that it was not going to lay any charges against Officer 4 in relation to the UN allowances in February 2008, it treated Officer 4 in a similar manner to the other officers.

6: Claim of right is defined in section 2(1) of the Crimes Act 1961 as "a belief that the act is lawful, although that belief may be based on ignorance or mistake of fact or any matter of law other than the enactment against which the offence is alleged to have been committed".

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