Outside the court martial at the naval base in Devonport, with replenishment vessel (a floating petrol station) Aotearoa II in background. Photo / Steve Braunias
Outside the court martial at the naval base in Devonport, with replenishment vessel (a floating petrol station) Aotearoa II in background. Photo / Steve Braunias
Steve Braunias reports on a military court martial for alleged indecent assault at the Devonport naval base.
To attend a military court martial this month at the Devonport naval base HMNZS Philomel was to experience so many layers of weirdness that it was like justice operating as a series ofRussian dolls. Each intricately weird doll held within itself another intricately weird doll. Probably this also serves as a good metaphor for the everyday chain of command within the Royal New Zealand Navy, held together by ritual, tradition, bellbottom pants and caps with stiff brims, all of which were on display at the court martial, held in a former cinema with beautiful rimu panelling. But the root case of it was merely the same shabby kind of behaviour of civilian life. A junior rating was accused of two counts of indecent assault. “A bad thing happened,” said the complainant.
No one of right mind expects the defence force to hold to a higher moral standard than the rest of us or to maintain some bygone age of chivalry. What our defenders of the realm do on a Saturday night is their own business. The point of the court martial, though, was to very precisely exhume the to and fro of a Saturday night, in a portrait of the Royal New Zealand Navy as crewed by blind drunk twentysomethings staggering around the North Shore.
The events concerned activities on February 16, 2024. A woman with name suppression alleged that able electronics technician Liam Tupola Kolaamatangi Muller indecently assaulted her in her room at the naval base. A trial was held in October. The jury – in a court martial, formed by three senior military officers – were unable to reach a unanimous verdict. The Crown demanded a retrial, held over two days in March. In October, it had taken the jury, all men, four hours to declare they were hung; in March, the jury of one man and two women took precisely 58 minutes to return with a verdict of not guilty.
I interviewed a relieved and tearful Muller immediately afterwards. He wore his summer uniform whites and talked about Jesus. Raised by his Tongan family in Mangere, he affirmed he has become closer to God, and faithfully attends Anglican church services. “The Bible teaches about not having pre-marital sex,” he said, “and I have not had sex with another person since that time.”
The complainant did not attend the trial. It was surely a profound and life-changing event for her as well as the defendant. But nothing about the case would have attracted media attention if it were a civilian matter. District court trials for indecent assault are routinely ignored. They take place in a kind of oblivion. The trial at the pretty seaside base of Philomel was different; its military setting gave it a special flavour, a dark attractive point of interest. Even so, only two reporters bothered attending, and one of them, from Radio New Zealand, hoofed it on the morning of the first day, never to return. He missed out on a really good provided officer’s lunch of cuts of hot roast lamb on a bed of rice with string beans and roasted beetroot. A navy sails on its stomach.
The security gates at HMNZS Philomel in Devonport. Drunk crew swiped through at 4:27am on a Saturday night last year in the lead-up to criminal charges.
And so it was never really all about the case itself. The court martial was an opportunity to observe military justice. It played out like a strange, vaguely familiar species of criminal law, at once formal and informal – for better and worse, there is no other court like it.
A cannon used to be fired to signal the opening of a military court martial. The military prosecutor used to wear a sword. When sentence was declared, the sword used to be pointed at the guilty party. Such fabulous pomp and ceremony, and small, captivating traces of it remained in place during the court trial at Philomel in March, on days of radically different weather. Day one was held beneath blue skies with bright sunshine glinting on the gray metal hull of the navy’s 173m workhorse, the Aotearoa II petrol tanker, weeping rust from its portholes. The temperature dropped rapidly on Day two. Heavy rain thumped on the courtroom roof. It felt like we were at sea, braving a terrible storm; the captain was Judge Brooke Gibson, resplendent in a purple tricolour sash draped around his black robe; but the only disaster was that court staff ate all the navy-provided Cameo Cremes.
Philomel is based at the western end of the Devonport foreshore along the seafront boulevard of Queens Parade. Its existence in one of the most expensive suburbs in New Zealand is just one of these incongruous Auckland things, like the dear old caravan park taking up valuable real estate in nearby Takapuna. The naval base gives Devonport a certain kind of character. It belongs there, not in any severe or even very serious way, more like a quaint feature of the landscape, with its old gray tubs at dock, and its hardly imposing security gates decorated with a metre or two of barbed wire. The razors are only called into action to prettily puncture drops of water flung up at high tide.
I was followed everywhere I went on base by a naval escort. On Day two, the elected escort was petty officer Fraser Robertson, who plays tuba in the Royal New Zealand Navy Band. A musician in regular employment: he was one of the happiest people I’ve ever met. In any case I only went as far as across the road from the courthouse to Fernleaf, the navy café that sold the worst sausage rolls in New Zealand and supplied a limited and eccentric range of goods – bobby pins, Sunlight soap, biltong and quite a lot of shoe polish.
Hours at district and high courts are strict. They conform to 10am starts and afternoon sessions at 2.15pm sharp. At Philomel, Judge Gibson sloped in through a side door and got things going at 8:56am; unlike district or high court judges, who perch up high, elevated and remote, he was content to take a desk on the same level playing field as everyone else. The strange democracy of military justice also included a long table for the jury of three, all heavily medallioned and who stood to salute the judge.
Black bolts of cloth were pinned to the walls. The New Zealand flag and the navy ensign flag were displayed behind the judge. Crown prosecution was led by Sam McMullan, who wore a Three Amigos suit and socks as loudly patterned as Philip Polkinghorne; he was assisted by Lieutenant Luca Barfucci, who wore a ceremonial outfit of army officer number ones, leather gloves, and a Sam Browne belt with supporting strap. Defence was led by Matthew Hague, ex-navy, weapons engineer turned military lawyer, assisted by Megan Fitness, ex-Knox Halls, Otago University. The two sets of lawyers sat side by side, in another twist on civilian criminal courts which put Crown in front and defence breathing down their necks in the row behind.
A court martial at Linton Military Camp, with Matthew Hague seated at right. Photo / RNZ, Jimmy Ellingham
There were brass coathooks on the walls. The kitchen was next to a steep little staircase which led to the former cinema projections room. There were various court staff, one whose job seemed to be keeping the door open next to the press bench. I kept closing it. She kept opening it. The door on the harbourside was reserved for the jury. They marched in, and the open door allowed a view of the point and purpose of the Royal New Zealand Navy: water. Next to the courtroom was the Chapel of St Christopher. A stained glass window depicts Jesus at the helm of a ship, with the message, “I dwell in the uttermost parts of the sea.”
The problem was partying on land. Saturday night to Sunday morning, February 16-17, 2024, was relived at the retrial, and in one crucial instance it was repeated word for word. The complainant’s evidence was filmed at the first trial in October. To save her the mental distress of having to go through it a second time at the retrial, the film was screened. It was a sensitive solution but her evidence felt remote, and lacked the raw feeling of appearing in person. She cried at one point and her support person appeared on screen asking for a break. The film resumed the very next second with the complainant in a slightly different position. Nifty editing but it meant the jury were unable to see or experience the emotional period inbetween for themselves.
The two charges of indecent assault were heard under the Armed Forces Discipline Act. Muller was accused of touching the woman’s breast, and touching her genitalia. Lt Barfucci said in his opening address that Muller had hit on the complainant at a party, and followed her into her cabin at the Philomel base at about 4:30am. He took his shirt off. He asked her to do the same. She refused. He climbed on top of her, and groped her.
Muller’s plea of not guilty indicated he would argue there was consent. But he went a lot further than that. Hague’s opening address argued that Muller and the woman had sex, twice, at her initiation. It was only her remorse, and her fear that her partner would find out, that led her to make up the story of harassment and indecent assault, according to Hague.
That was the central dispute, the she-said, he-said; much of the rest of the evidence at the court martial was a record of naval crew at play, drinking themselves insensate. Muller was shown on CCTV arriving at the naval base at 4:27am. He staggered, stumbled, weaved, and banged into things. It seemed a wonder he didn’t fall into the harbour.
A witness, able writer Irinieta Toduadua, talked about the party that night: “Aw I drank too much, eh.”
McMullan: “How much is too much?”
“Like a whole box.”
“Of what?
“A 12 pack of Gordons.”
“And is that like an RTD?”
“Aye. Gin.”
There were two parties that night. The first ended around midnight, after noise control shut down the music. The complainant said Muller pestered her throughout that evening, and asked a friend at the party, able weapons technician Angus McMahon, to keep him away from her. She went to another navy party, at Narrow Neck, with Toduadua and Muller, and again he asked her what she was doing afterwards. (“He tried to conversate with me,” she said in evidence.) She left the party with Toduadua to drive to a McDonald’s on the North Shore. Muller asked if he could come too. She refused. Toduadua, though, put on “peer pressure”, and she agreed. He sat in the back of the car and touched her shoulder.
But Hague’s cross-exam produced contradictions. None of the witnesses at the party saw Muller bothering her. McMahon denied she asked him to keep Muller away from her. Toduadua denied she asked her to give Muller a ride and said that he was asleep the whole time in the back seat. An image from a security camera was shown in court. It caught Muller fast asleep in the car, his hand curled around a bottle of Steinlager low carbs.
McDonald’s in Belmont was closed. They drove further north, to McDonald’s in Glenfield. The three of them arrived back at Philomel, waving their passes through security at 4:27am. Irinieta Toduadua went to her cabin in Cruiser block, and Muller followed the complainant to her cabin, next door to his in the same B2 barracks.
Navy frigate HMNZS Te Kaha, where Muller was posted
The complainant cried when she described how he forced her into her bed and tried to kiss her. The film was stopped. When it resumed, she was sitting on the far left of the frame, next to a wide blank space. She said, “And he took his shirt off and I was telling him to get off me and he was just saying, ‘Be quiet’, and then he moved his hand down my body and I managed to get him off and he kind of just stood there with a smirk on face and I told him to leave and he finally left and as he was leaving he made the smirking remark, ‘Say hi to your partner for me’ and that he was going to go around telling people we hooked up.”
The next day, she said to a friend on the naval base, ordinary marine technician Anahera Peita, “A bad thing happened last night.”
The next day, Muller said in evidence, he got challenged to a fight.
He said in court, “I was approached by a rating in my accommodation block. I know him to be the partner of the complainant but I didn’t know who he was at the time.”
Hague: “What did he say?”
Muller: “He asked me if I was with his girlfriend on Saturday night. I said ‘no’ because I didn’t know who he was talking about.”
“What happened next?”
“And then he was persistent that I was, and a little bit intimidating and that. And because of his persistence I kind of clicked that it was [the complainant] he was talking about. And then he said he wanted to have a fight with me and he wanted to arrange one at 4 o’clock that day, 1600 that day at the street next to the main gate carpark. And then I told him that I can’t get off ship until maybe like 1630. I left ship 1620 and got to the location but I didn’t see him there.”
The fight that wasn’t, between two junior ratings, at the Royal New Zealand Navy base HMNZS Philomel, scheduled sometime after 1600 hours – it was the longest monologue Muller made in the witness box, his tongue moved by stories of conflict and retribution. His answers to questions about his behaviour with the complainant were brief and muttered.
Naval crew from HMNZS Philomel at the Treaty Grounds, 2015. New Zealand Herald Photograph by Jason Oxenham
No, he did not make advances on her at the party. No, he did not interact with her other than shaking her hand when they were introduced. Yes, he did interact with another guest: “Me and AWTR [able writer] Grace Winter, we kissed. She was daring these other two people to kiss, and then they said, ‘Oh you should kiss Grace.’ She came to me and said, ‘We should kiss’, and then we kissed.”
No, he did not touch the complainant when he was in the car; he was asleep. No, he did not force her onto the bed; she asked him, “What about a hug?” Yes, he asked her for sex; she said, “Yes.” He watched her take off her clothes and then he took his clothes off and they had sex. She moved her hips, and said, “Baby.” Afterwards, she said not to tell anyone, because she was seeing someone.
Hague: “And what happened after that?”
Muller: “I sat up on the bed, and then I started to finger her.”
“And what was she doing while you did that?”
“She put her fingers in as well and was moaning.”
“And what happened next?”
“I asked her if she wanted another round of sex and then she said, ‘No.’ So I got up to leave and then she said, ‘Okay then.‘”
“And what happened next?”
“I got back on top of her and started to have sex again.”
“And what happened next?”
“The next is I just remember waking up because I fell asleep.”
“When you say you fell asleep, is this while you were having sex?”
“Yes.”
It’s always easier for a defendant to answer questions from their own lawyer than the prosecutor but the expressively suited and socked McMullan made it even more difficult by using fifty-dollar words. In his cross-exam of Muller, he asked, “Would you agree that it was a sort of inconsequential consensual sexual encounter?”
Muller: “Say that again?”
“Would you describe what happened in the room, on your evidence, to be an inconsequential sexual - sorry. An inconsequential but consensual sexual encounter?”
“I don’t know how to answer that question.”
“On your account, there wasn’t anything untoward that happened in that room, was there?”
“I’m sorry?”
McMullan tried another approach. He shed the “inconsequential” and the “untoward”, and asked, simply, “Was there any particular reason for you to remember what happened in that room that morning?”
“Yes.”
“Why?”
“We had sex.”
He had got through to Muller but the answer wasn’t helpful to his cause. Muller, sometimes, had the gift of saying things which sounded a lot like the plain truth. It happened again towards the end of the cross-exam. Just as Hague had asked the complainant whether she was making it up, McMullan asked Muller, “You’ve made up this story that’s contained within your evidence to cover up what you did inside of that room that morning, haven’t you?”
No, Muller said, he had not. No, he said, he did not tell her that morning in her room that he was going to go around saying that she wanted it. Yes, he said, the “tone of her voice” had remorse in it when she spoke to him after they had sex: “I now think that she was remorseful because she knew she had a boyfriend and she shit on him.”
It was not just an eloquent reply; the delivery was passionate. Throughout, Muller presented himself well in the witness box, in the big wooden building, with the rain hitting the roof and a cold harbour breeze whooshing through the door. The complainant was confined to a screen.
Closing addresses took 20 minutes; the judge’s summing up was about half-an-hour; court staff barely had time to stretch their legs before the jury came back, saluted the judge, and delivered their unanimous verdict. “Not guilty,” said a warrant officer, immaculate in white.
Afterwards, Muller wiped away his tears, and took deep breaths. His ordeal was over. He had been suspended for a year on full pay. He kept himself busy in the garden and with housework: “I got everything spic and span.” He yearned to be on navy warship Te Kaha, where he had been posted before his suspension. “It’s where I’m meant to be,” he said outside the courtroom, looking towards the Waitematā, and beyond it, to the uttermost parts of the sea.
