PRESIDENT’S GUIDE TO COURTS OF INQUIRY

 

President and Court of Inquiry (COI) members

Assembling Authority
(Assy Auth)

Inspector General (IG)

Request support from the NZDF COI Office and access to the specific COI folder (through the respective IG). Once the report is signed, forward to the Assy Auth.

Insert comments and once the staff action has concluded forward the original signed ROP through the command chain to the IG.

On behalf of Service Chiefs and Commander Joint Forces NZ (COMJFNZ), manage the upload of the documentation and recording of recommendations; monitor trends and the status of action taken to implement agreed recommendations; and forward the original ROP to the NZDF COI Office for retention and NZDF-wide oversight of action to implement recommendations and monitoring of trends.

 

Contents 4

Glossary 8

Foreword 11

Section 1 – Introduction 13

Who is this for? 13

How to use this guide 14

Section 2 – Overview of a Court of Inquiry 15

What’s in a name? 15

Purpose of the Court of Inquiry 16

Special statutory rights and protections under a Court of Inquiry 16

Summary 17

Annex A: Cause and accountability 18

Annex B: Process map 19

Section 3 – The role of the President 21

Appointment to a Court of Inquiry 21

Functions of President 22

Annex A: Checklist guide of some key actions/resources for Courts of Inquiry 23

Section 4 – Courts of Inquiry 33

Module A: Plan a Court of Inquiry 34

Part 1: Assembling Authority 35

Part 2: General planning requirements 39

Part 3: Analyse Terms of Reference 41

Part 4: Analyse sources of evidence 42

Part 5: Sequence and schedule witnesses 43

Part 6: Review the plan 44

Annex A: Planning principles and tools 45

Annex B: Summary of principles and best practice in planning a Court of Inquiry 53

Module B: Conduct a Court of Inquiry 56

Part 1: Different types of witnesses 57

Part 2: Expert witnesses 58

Part 3: Obtaining evidence 59

Part 4: Calling a witness and administering the oath and caution 60

Part 5: Recording the evidence 61

Part 6: Questioning techniques 62

Part 7: Recognising evidential privilege 64

Part 8: Analysing the evidence 67

Part 9: Criticism of superior officers 68

Part 10: Natural justice rights 69

Part 11: Legal representation 71

Annex A: Flowchart for conduct of a Court of Inquiry 72

Annex B: President’s aide-mémoire for calling a witness 73

Annex C: Witness caution 75

Annex D: Example format for witness interview 76

Annex E: Example witness statement 77

Annex F: Example witness statement where a photograph is produced 78

Annex G: Exhibit certification of an object that has been photographed
for production as an exhibit 79

Annex H: Exhibit certification—certified true copy of a document 80

Annex I: Rights of person who may be affected by inquiry 81

Annex J: Legal representation by a person affected by inquiry 82

Module C: Write a Court of Inquiry report 83

Part 1: Why is good writing important? 84

Part 2: What does good writing mean? 85

Part 3: Examples of bad and good report writing 87

Contents

Section 5 – Topic-specific modules 91

Module D: Death and serious injury inquiries 92

Part 1: Engagement with external agencies 93

Part 2: Engagement with whānau/family 95

Part 3: Miscellaneous 99

Annex A: Example letter to whānau of a deceased releasing draft report
for comment 100

Annex B: Worksafe New Zealand/New Zealand Defence Force Memorandum of
Understanding 102

Module E: Maritime safety event 112

Part 1: Expert witnesses in an inquiry into a maritime safety event 113

Part 2: Securing and obtaining evidence 115

Part 3: Event chronology and causative factors 116

Part 4: Interim reporting 118

Annex A: Memorandum of Understanding between
New Zealand Defence Force and Transport Accident Investigation Commission 119

Module F: Aircraft accident inquiries 128

Part 1: Relationship with Accident Investigation Team and
Transport Accident Investigation Commission 129

Part 2: Composition of the Court of Inquiry and expert witnesses in an
aircraft accident inquiry 130

Part 3: Obtaining evidence from overseas 132

Part 4: Event chronology, causes and factors 133

Part 5: Interim reporting 136

Module G: Inquiries relating to munitions 137

Part 1: The Ammunition Technical Investigation and expert witnesses
in an inquiry relating to munitions 138

Part 2: Obtaining evidence from overseas 140

Part 3: Event/munition chronologies and causative factors 141

Part 4: Interim reporting 143

Section 6 – Common concerns in Courts of Inquiry 145

Checklist of common concerns 145

Concepts to improve your Court of Inquiry 146

Section 7 – External legal review 149

Circumstances warranting a Court of Inquiry report review 149

Section 8 – Forms and links 151

Forms 151

Links 151

  1. Glossary

The following are terms and acronyms relevant to a COI.

Title

Acronym

Definition

Armed Forces Discipline Act 1971

AFDA

The legislation relating to the discipline of the New Zealand armed forces and which provides for
the discipline and administration of justice within
those forces.

Assembling Authority

Assy Auth

The Chief of Defence Force (CDF) or the officer in command of a part of the armed forces involved in the matter. The Assy Auth appoints the Court, details the time and place a COI must commence, and the Terms of Reference (TOR) that must be addressed by
the Court.

Command Investigation

CI

A simple informal investigation into matters, without statutory powers or privileges of a COI.

Commander Joint Forces New Zealand

COMJFNZ

Commander responsible to CDF for the command of NZDF military operations and exercises and Defence Force contributions to domestic security tasks.

Composition of a COI

A COI must consist of no less than two members, of whom at least one must be an officer who is the President and the other(s) must be officers, warrant officers, or members of the NZDF Civil Staff of equivalent standing.

Counsel Assisting

An officer who is a barrister and solicitor of the High Court appointed by the Assy Auth to the inquiry to assist and advise the Court.

Court of Inquiry

COI

A Court established under section 200A of the Armed Forces Discipline Act 1971 (AFDA). Its purpose is to provide an officer in command with ‘an expeditious fact finding procedure so that a matter can be promptly investigated and if necessary, prompt, remedial action can be taken’. The procedure of a COI is provided for in Part 11 of the AFDA. A COI can be conducted into any matter that an Assy Auth directs. There are certain incidents where it is mandatory to conduct a COI. A COI must occur when a service person dies or is seriously injured in the course of his or her duties (unless the death or injury occurred during armed conflict, or where an incident is investigated as a disciplinary matter).

COIs have greater status in law than CIs and, therefore, offer certain protections that CIs do not.

Cross Service Court

Members appointed to a Court from different Services.

Director Legal Services

DLS

Head of Defence Legal Services.

Exhibit

Any document or real item produced in evidence to the Court.

External Legal Review Panel

A panel of members comprising Queen’s Counsel, appointed by the Judge Advocate General (JAG) to provide an independent legal assurance of significant COI, upon request of the Superior Commander.

High Profile Inquiry

An inquiry that may be the subject of significant or sustained public interest.

Judge Advocate General

JAG

Judge Advocate General of the armed forces.

Legal Advisor

NZDF legal officer.

Member

A member of a COI and includes the President.

Next of Kin

NOK

The term is not a legal construct, but concerns those nominated relative(s) or immediate family representative(s) appointed as the point of contact with a COI/Command.

Preliminary Inquiry

A disciplinary investigation that precedes the recording of a charge under the AFDA to determine whether the allegation is well-founded.

President

The President of a COI is the most senior officer and member of the COI, with responsibility for directing the procedures of the Court and ensuring the inquiry addresses its TOR.

Record of Proceedings

ROP

The record of the evidence collected by a COI and any Court report or comment of findings and recommendations.

Redaction

The separation of disclosable from non-disclosable information by blocking out individual words, sentences or paragraphs, or the removal of whole pages or sections (normally for privacy or security reasons) prior to any release of the document.

Summons

A legal notice issued by the President to compel a civilian witness to attend an inquiry and produce or provide a document or thing (item). Members of the armed forces are ordered to do so.

Superior Commander

CDF, Vice Chief of Defence Force (VCDF), Chief of Service, COMJFNZ and any officer they appoint not below the rank of Colonel or the equivalent to act as a disciplinary officer. The Superior Commander is responsible for approving any release of a COI.

Terms of Reference

TOR

The direction from the Assy Auth to the Court, stating the purpose and requirements of the inquiry that must be addressed.

The New Zealand Defence Force is a modern, professional military force designed for combat, yet capable of responding across the full spectrum of operations. As such we recognise that we will at times be required to undertake inherently dangerous tasks on operations and in training, ensuring delivery of our mission and being a force for New Zealand.

Despite our excellent training and systems, experience tells us that sometimes things will go wrong. When this happens, it is vital that we find out what happened so that lessons can be applied in a timely manner to enable our Defence Force to continue to conduct operations in the safest way for our people. That is why I place so much importance on our Courts of Inquiry system.

Courts of Inquiry provide our Defence Force with an expeditious fact-finding process to get to the heart of issues, so that we might stop similar events happening again. Indeed, Parliament has given us a responsibility to investigate the cause of incidents by empowering us to assemble Courts of Inquiry. Its role is not to determine guilt—that’s a matter for the military justice system. Courts of Inquiry are a tool for understanding the cause of incidents, and how we might do better.

As a consequence, Courts of Inquiry have some special features. As it is vital that witnesses are forthcoming and provide free and frank evidence, a Court of Inquiry provides almost unparalleled statutory powers, rights and protections that are not available to other Defence Force investigations. For example, the evidence given by people cannot be used against anyone in disciplinary or criminal proceedings. Evidence for disciplinary proceedings must be collected separately. In addition, Courts of Inquiry also ensure that anyone whose reputation may be at stake has natural justice rights. That’s an important protection, and something that our lower level command investigations can’t do.

All of this means it is the Court of Inquiry process that is generally conducted into our more complex, serious or systemic matters, or where these special protections must be provided. This is why as a Defence Force we place so much importance on the effective conduct of Courts of Inquiry. When you are appointed to a Court of Inquiry, this must be your priority as it is essential that Courts of Inquiry are conducted in a timely and effective manner.

A Court of Inquiry is a powerful tool, but we need to use it properly. In recent times we have reviewed and strengthened the training and support we provide to those involved in Courts of Inquiry. This President’s Guide is part of that. It is a practical tool to complement our Courts of Inquiry training. This recognises that Presidents and other personnel involved with Courts of Inquiry are vital to ensuring our Courts of Inquiry system is robust and delivers as intended.

Lieutenant General Tim Keating
Chief of Defence Force

Foreword

Who is this for?

The purpose of this guide is to provide practical guidance for Presidents of COIs. Other members of a COI will also find it helpful, as may Assy Auths and Commanders.

This guide does not supersede the law or orders on COIs.

The primary references are contained in DM 69 (2nd ed.) Volume 3:

DM 69 (2nd ed.) Vol 1, the Commander’s Handbook, Chapter 11, Section 1 addresses the three types of inquiry in the NZDF. Chapter 11, Section 2 addresses COIs, their assembly, conduct, use and access. Single Service Orders in DFO(F), NZAP 201, DFO(A) Volume 3, Book 2, Chapter 23, or DFO(N) provide orders relevant to service specific issues.

It is important for COIs to be conducted in a timely manner. Consequently, all officers and warrant officers are expected to have passed level 1 e-learning and have a sound understanding of COI, so they can be appointed to a COI at any time. The level 2 briefs directed by the Assy Auth build on this e-learning and form part of the planning process at the outset of a COI.

This guide is designed to be read alongside the law and orders and to complement this training. It provides practical aides-mémoire and tools designed to assist Presidents and personnel in how to plan, conduct and report on a COI.

  1. SECTION 1­ – Introduction

Consider this scenario

A NZ Army truck, driving on base at Blenheim, gets into an accident. The Corporal driving is injured, as well as some of the passengers from various Services in the back.

What happened?

Can an accident like this be prevented in the future if policies are instituted or changed?

A COI is a way for NZDF to identify the cause of an incident and any action required to prevent a recurrence.

How to use this guide

The guide is divided into sections and includes helpful checklists and aides-mémoire.

All Presidents should read Sections 1, 2, 3, 4, 6, 7 and 8. Section 5 needs only be referred to if the COI concerns that specific issue. Specific guidance for Assy Auths is at Section 4, Module A, Part 1.

Where reference is made to excerpts of the AFDA, DFOs and relevant forms and Memoranda of Understanding (MOUs), these can be accessed electronically on the NZDF intranet, including through the Directorate of Legal Services or NZDF COI Office sites. Additional public information on COIs is contained at http://nzdf.mil.nz/corporate-documents/coi/default.htm.

For further information, please speak with the NZDF COI Office, appointed Counsel Assisting or your legal officer.

What’s in a name?

In some other military jurisdictions, the equivalent of a COI is often called a Board of Inquiry. In New Zealand, it is the Inquiries Act 2013 that details civil inquiries, such as Commissions of Inquiry. A COI falls outside that Act, with COI prescribed by the AFDA.

It is a common misconception that because of the name “Court” in Court of Inquiry, that a COI is a disciplinary body. This is not correct. A COI must not determine guilt or apportion blame—that is the role of the Court Martial, summary trial or civilian court.

It is vital to dispel this misconception when introducing yourself to witnesses and conducting your duties; and that in the Court’s report you do not make any finding about whether any person is guilty of an offence.

To assist in explaining the various investigation processes, Annex A shows the three forms of Defence Force investigations and a process map is at Annex B.

Where the evidence indicates some criminal offending by any person, this should be referred to that person’s Commanding Officer (CO) for investigation.

Furthermore, as above, a COI cannot be used in evidence in any other proceedings, except in exceptional statutory circumstances, such as where a Court is required to make a declaration under AFDA s 201 that a member is absent without leave (see MD 635).

Nevertheless, administrative consequences can flow from a COI, including an administrative censure, or an offer of amends where there has been organisational wrongdoing. Consequently, in all such cases legal advice should be obtained and natural justice rights must be afforded.

Purpose of a COI

The COI has a statutory basis under s 200A of the AFDA 1971. Therefore, the Assy Auth, President and members have statutory powers and authority under Defence Force Orders when conducting their duties.

The role of a COI is similar to that of a Commission of Inquiry or a Coroner’s Court.

The Court’s role is to expeditiously inquire, collect facts and, if required, to report or comment, upon the matter under investigation, as directed by the Assy Auth in form MD 634.

It is particularly important in the NZDF to quickly determine the cause of the incident, and for witnesses to be free and frank in order to avoid unnecessary operational impact and to prevent a reoccurrence.

Special statutory rights and protections under a COI

A COI provides special statutory rights and protections as follows:

  1. A witness has special protections. Evidence is taken on oath (sworn on the Bible) or affirmed at the outset of each witness testimony (see Section 4, Module B, Annex B)
  2. A witness is cautioned (see Section 4, Module B, Annex C)
  3. Statutory protections are afforded—such as AFDA s 200N rights (see Section 4, Module B, Part 10 and Annex I and the checklist overview Section 3, Annex A) to afford rights to personnel whose character or reputation may be affected
  4. There are statutory constraints on the disclosure and use of a COI, namely:

    (a) It is only provided to those within the Service who need to know to perform their Service duties (see AFDA s 200T)

    (b) The Superior Commander of that Service must approve any release to persons who are not subject to the AFDA (see AFDA s 200T)

    (c) The evidence collected is not defined as official information under the Official Information Act 1982 (OIA) and, therefore, is not subject to disclosure under that Act

    (d) The report is subject to the OIA, but can only be released with the Superior Commander approval (under AFDA s 200T) decided on a case-by-case basis (largely due to an overriding public interest) and it will be redacted to protect privacy and security

    (e) A COI cannot be used in evidence against any person in any other proceedings1
    (R v Neave), but:

    (i) If a person is charged, he/she is entitled to a copy of the COI upon request to a Superior Commander (RP 144).

This does not mean that a COI will never be disclosed. The Superior Commander will balance the competing factors and, in nearly all cases, the evidence (witness testimony and exhibits) will be withheld. However, in limited circumstances, the Superior Commander may authorise disclosure of the report (and Order for Assembly and TOR), but it will generally be redacted for privacy and security purposes.

The statutory protections on disclosure and use, however, reflect the paramount importance of quickly determining what happened. For this to occur, witnesses must have confidence and trust in the process.

Summary

Running a timely and careful Court

While the President is a member of the COI, he or she is the senior member. In addition, the President has some additional specific powers and responsibilities, which will be highlighted.

Among them, the President ensures that the COI observes the protections afforded witnesses, is run in a timely manner, and provides cautions and encouragement to witnesses.

Unnecessary delay will impact on the ability of the Assy Auth to identify the cause of the incident and to take any remedial action. This may increase risk to personnel, impede operational effectiveness and undermine public confidence.

Appointment to a COI

A COI must consist of not less than two members, of whom at least one must be an officer and the other(s) must be officers, warrant officers, or members of the NZDF Civil Staff of equivalent standing.

Member appointed President must:

Remaining members of the Court must:

  • be an officer of the rank of Lieutenant in the Navy, Captain in the Army or Flight Lieutenant or above
  • be the senior member of the Court
  • be superior in rank to any person likely to be affected by the inquiry
  • have passed the level 1 COI e-learning training
  • complete any level 2 modules directed by the Assy Auth on form MD 634, once the COI assembles.
  • be of at least the same rank and seniority as any person likely to be affected by the inquiry
  • have passed level 1 COI e-learning
  • complete any level 2 modules directed by the Assy Auth on form MD 634, once the COI assembles
  • where practicable and consistent with suitability, security clearances and expertise, be drawn from across the Services (Cross-Service Court)
  • where practicable and where the matter concerns a part of the Service other than Regular Force, be a member of that part of the Service.

Note: Specific requirements apply for the President and members where a COI is assembled following an aircraft accident or fatality (see Section 5, Module F). Further, where there has been any fatality or serious injury, the Assy Auth should consider appointing an officer, warrant officer or member of the NZDF Civil Staff of equivalent standing who is a Health and Safety representative (see Section 5, Module D).

Functions of President

The President is, first and foremost, a member of a COI. As a member, he or she must expeditiously collect and record evidence on the TOR directed by the Assy Auth in form MD 634 (Assembly Order) and, where required, provide a report. Check the MD 634 to see if a report is required.

As a member of a COI, the President has the statutory responsibilities of other members of the COI under the AFDA.

As President, he or she also has some additional statutory responsibilities. An overview of the COI process, highlighting the President’s functions is at Annex A.

For details on how to plan and conduct a COI, and how to write a COI report, see Section 4.

Further, as the senior member of the COI, it is important that the President:

In brief, sound planning, effective conduct and report writing are core features that are addressed in the sections that follow.

Annex A: Checklist guide of some key actions/resources for a COI

The following checklist also serves as a summary of the COI process. Major steps are reinforced with good practice and reminders. However, as circumstances of each COI vary, so do the arrangements you must make. This guide does not replace speaking with your Counsel Assisting.

1. Receive form MD 634 Order of Assembly from the Assy Auth (

  • Ensure you have passed level 1 e-learning. Refresh yourself and review DM 69 (2nd ed.) Vol 1, Chap 11
  • Ensure you can give priority to the COI
  • Discuss with the Assy Auth any requirement for an external legal review (normally by exception)
  • Arrange with appointed Counsel Assisting, regional legal advisor or the NZDF COI Office to receive any specific level 2 brief at the outset of the COI, as directed by the Assy Auth.

References: AFDA 1971, Armed Forces Discipline Rules of Procedure (RP), DM 69 Vol 1, Chap 11

2. Plan the COI. Read President’s Guide and review relevant aides-mémoire

  • COI checklist
  • Planning a COI—principles and tools
  • Summary of principles and best practice
  • Conducting a COI
  • Process for calling a witness
  • Oaths format
  • Affirmation format
  • Caution format
  • Natural justice format
  • Summons format
  • Report format
  • Report writing guide.

3. Assemble at time and place directed in form MD 634

  • If unable to assemble, assemble ASAP and the President must note the reasons in ROP
  • COI sits in private unless the witness has AFDA s 200N rights and the President then permits legal representation, or if the President authorises any person (by exception)
  • The President must lay form MD 634 and the TOR before the Court
  • The President directs sitting times and places and can adjourn COI
  • The Assy Auth can direct re-assembly.

References: AFDA ss 200F to 200H, DM 69 Vol 1, Para 11.2.24–11.2.28

4. Preserve evidence ASAP. Arrange for scene and potential exhibits, such as wreckage or equipment, to be secured/retained and photographed (see DM 69 Para 11.2.22)

5. Engage with Assy Auth and external agencies

  • Consult with NZDF COI Office/Counsel Assisting regarding engagement with external agencies/immediate family, and the external legal review panel where relevant
  • You may need to coordinate interviews with those of other agencies
  • Back brief Assy Auth on the plan, expected timeframes and any interim reporting requirements.

6. Arrange administrative support to organise the following:

  • A cost centre and special purpose code
  • Venue for the Court and any waiting room(s) for the witnesses
  • Signage—Court door “Court of Inquiry in progress—private”, and “Witness waiting room”
  • Meals, water jugs, glasses
  • Stationery (folders, paper, pens, clear files, white stickers, flip charts, markers, Post-its)
  • Computer, printer and copier
  • Recording equipment, batteries, laptop microphone—ensure it satisfies the security classification and test the quality of the recording in conditions
  • Interpreter, typist, recording machine operator (impartial person appointed by Assy Auth or President)
  • Transcription:
    • Ensure the software and hardware is compatible with the recorder and satisfies any security classification.
    • Where an external agency is contracted, ensure a confidentiality agreement is signed and, identify the time span between supply and receipt of rolling transcripts, and certify receipt of the product at the end.
  • Provide transcriber with:
    • Format for ROP
    • MD 634
    • Witness and exhibit list
    • Glossary of abbreviations, ranks and specialist terms
  • Bible or other book as necessary
  • Exhibit certification stamps
  • Arrange secure storage for large items, if necessary
  • Arrange secure storage and clearances, forms, etc., to hold and carry classified material, where required
  • Travel and accommodation requirements, for Court and witnesses, including any deployment clearances/waivers
  • When witness is remote, arrange access to Skype, VTC, ensuring the witness has access to exhibits, a Bible and other relevant material.

References: AFDA s 200L and DM 69 Vol 1, Para 11.2.32

7. Identify and schedule witnesses

  • President may direct attendance of witnesses by order/summons (using a personal approach in advance) and direct witnesses to bring exhibits
  • Arrange tentative time for witnesses to return, read and sign transcripts
  • Meet timeframe requirements for witnesses
  • Witness expenses: Limited witness expenses can be paid, where the witness is not subject to the AFDA, or is subject but not a member of the armed forces.

References: AFDA s 200(I), DM 69 Vol 1, Para 11.2.29–11.2.30, Form MD 637, RP 154, Witnesses and Interpreters Fees Regulations 1974

8. Conduct the Court—Calling witnesses):

  • President swears/affirms interpreter, recording machine operator, typist
  • Call Witness: Set scene
  • Swear Witness: President swears/affirms each witness
  • Caution Witness: President must caution the witness and the caution must be recorded
  • Witness Evidence: Obtain witness evidence and ensure exhibits are produced by the witness.

References: AFDA ss 200J and 200L, RP 155–158 and RP 162–163, DM 69 Vol 1,
Para 11.2.31–11.2.41

9. Ensure natural justice rights are afforded according to AFDA s 200N

  • The President must afford the AFDA s 200N rights and record in ROP that rights have been given to a specified person
  • President must record in the ROP if that person does not wish to exercise the rights
  • President is to direct attendance of any witness sought by an affected person and make arrangements for attendance. If impractical, the President must note this in the ROP
  • Legal representation: No legal representation unless the President agrees to it upon request by the person afforded AFDA s 200N rights. Refer references for the factors to be considered.

References: AFDA ss 200N, 200O, 200P, 200I, DM 69 Vol 1, Para 11.2.52–11.2.59,
RP 143

10. Handling of witness exhibits

  • Ensure that all exhibits are introduced by a witness. The President is to mark each exhibit sequentially with a letter, sign or attach a marked and signed label, and attach the exhibit to the ROP
  • Generally, copies or extracts of original documents should be taken
  • The President must then endorse the copy of the document “Certified that I have compared this copy with the original document/book and that it is a true copy” and return the original document (if necessary, securely)
  • Large exhibits can be photographed, but the President must ensure their safe custody, pending directions of the Assy Auth for ultimate disposal, after consultation with the Provost Marshal and the Coroner (for all fatalities)
  • The President must then certify the photograph or exhibit “Certified that I have compared the exhibit with the above photograph/digital image and that it is a true likeness.”
  • Be alert to the chain of evidence and securely store exhibits and originals, particularly where a disciplinary investigation may arise. The Joint Police Unit can assist.

References: DM 69 Vol 1, Para 11.2.46–11.2.48, AFDA s 200Q

11. Use appropriate questioning techniques

  • Ensure that open-ended questions are asked and closed questions are limited
  • Although not bound by the ordinary rules of evidence, try and ensure that where possible the rules of evidence are complied with.

References: AFDA s 200K(1), DM 69 Vol 1, Para 11.2.42–11.2.43

12. Witness review of evidence

  • At the end of the interview, review the evidence and, if required, question further under oath/caution
  • Confirm a time for the witness to return, check and sign the witness statements:
  • Corrections made where necessary and alterations initialled by the witness
  • Witness signs statement on last page
  • Initials bottom right hand corner of preceding pages.

References: AFDA s 200K, DM 69 Vol 1, Para 11.2.45

13. Check for issues regarding superior officers’ conduct

  • If conduct of an officer superior in rank or seniority to any member (including the President) may be called into question, the President must report to the Assy Auth:
  • Assy Auth must consider and may dissolve the court or direct it continue
  • President must record the report and direction on the ROP and report again as required.

References: AFDA s 200M, DM 69 Vol 1, Para 11.2.49-11.2.51

14. Review plan and the draft ROP

  • Ensure the layout of the COI complies with the recommended format
  • Ensure all of the following in your ROP:
    • All TOR are addressed
    • Findings are supported by evidence.
    • Findings are correctly cross-referenced to witness evidence and exhibits
    • Court does do not make admission of liability or apportion guilt
  • All the recommendations are clear, and key recommendations are specified and able to be actioned
  • Natural justice rights. Check if any further AFDA s 200N and natural justice rights need to be afforded before the report is finalised.

References: DM 69 Vol 1 Chap 11 Annex A, DM 69 Vol 1, Para 11.2.62–11.2.65

15. Liaise with Assy Auth in advance of any provisional release of the report

  • Ensure draft is properly redacted, including privacy, security, and commercial in confidence factors
  • Ensure draft is numbered and watermarked
  • Write a caveat that the report is not to be disclosed further without the approval of the Superior Commander
  • Make sure legal advice is received and a communication plan is in place, if required.

16. Prepare briefs and an opportunity to comment on the draft

  • Personally arrange brief to immediate family/whānau/affected personnel (where relevant), with a follow up letter
  • Provide opportunity to comment on draft redacted report and arrange a realistic time period
  • Arrange a follow up meeting to discuss issues.

17. Review comments and record fact of consultation before finalising the report

18. Sign-off report

  • President and members all sign the report
  • Record any material difference of opinion
  • President dispatches ROP to the Assy Auth (leave some pages for Assy Auth comment).

References: AFDA s 200R, DM 69 Vol 1, Para 11.2.63–11.2.64

19. Insert security classification

  • Give an appropriate security classification according to the nature of the inquiry and the evidence collected and recorded
  • If the ROP does not warrant a security classification, it must be given an appropriate in confidence privacy marking.

References: AFDA s 200R, DM 69 Vol 1, Para 11.2.65

20. Assy Auth inserts comments

  • Assy Auth inserts comments after legal/staff advice and states whether he/she agrees or does not agree with the findings and recommendations
  • Assy Auth forwards completed ROP through command chain to Superior Commander for action.

References: AFDA s 200R, DM 69 Vol 1, Para 11.2.64

21. Recommendations recorded

  • Recorded in NZDF COI SharePoint for action and follow up (by IG)
  • Original ROP forwarded to the NZDF COI Office for retention and archiving.

22. Disclosure rules must be followed

  • No disclosure to personnel subject to AFDA unless required for service duties or by law
  • No disclosure to personnel not subject to AFDA unless approval by Superior Commander of the Service
  • The COI cannot be used in evidence in any other proceedings
  • Evidence and submissions to a COI are not official information
  • The report is official information but cannot be released unless authorised by the Superior Commander under AFDA s 200T.

References: AFDA ss 200S and 200T, RP 144, Official Information Act 1982, DM 69 Vol 1, Para 11.2.66–11.2.74

Module A: Plan a COI

This module is broken into six parts:

Part 1: Assy Auth

General requirements

The importance of the planning phase and sound decision-making at the outset of a COI cannot be overstated. This commences with the decision to assemble a COI under AFDA s 200A. The Assy Auth for a COI is the CDF or the officer in command of any part of the armed forces.

The Assy Auth must be alert to the fact that a COI has special rights and protections not available to lesser investigations. These include the ability to restrict access to and disclosure of the proceedings of a COI, witnesses can provide frank evidence without fear that it can be used in any other proceedings, and it is only the evidence and submissions to a COI that are excluded from the requirements of the Official Information Act 1982.

The Assy Auth has statutory responsibilities for COI under the AFDA. These range from assembling a COI and some functions during a COI, to providing comments at the conclusion of the inquiry.

Responsibilities commence with the assembly of the Court on form MD 634, specifying the composition of the Court, appointment of Counsel Assisting where required, the place and time the Court is to assemble, and directing TOR. The Assy Auth is also to state whether any report or comment is required. Further, the MD 634 can be revoked, varied or suspended at any time.

When preparing the TOR, note is to be made of any special requirements laid down in DFOs or single service publications and the Court should be alerted to these.

Timeliness

As stated in Section 3, it is essential that the Assy Auth and the Court appreciate the importance of timeliness in assembling and reporting a COI.

It is expected that the Assy Auth and President will engage on realistic timeframes, without prescribing absolute time limits, and that these may be adjusted after the Court has conducted its initial planning phase. Similarly, with enhanced planning by the Court, Assy Auths should be open to issuing amended MD 634 Assembling Orders to reflect any amended TORs.

Legal advice

The legal advisor, or Counsel Assisting where appointed, plays a key role throughout the COI process. This includes provision of advice on the requirements for the composition of the Court, any other special requirements, TOR, and identifying those level 2 module briefs that the Assy Auth should direct for the Court, on form MD 634. These briefs will generally be conducted by the legal advisor/Counsel Assisting once the Court assembles as the first part of the planning process, but they can also be provided to ships or units pre-deployment. The NZDF COI Office can also provide support and guidance.

Composition of the Court

Sound decision making by the Assy Auth in the appointment of a COI sets the scene for a successful COI, whereas a failure to appoint a legally constituted Court can have serious consequences.

In brief, a Court must consist of not less than two members, of whom at least one must be an officer and the other(s) must be officers, warrant officers or members of the NZDF Civil Staff of equivalent standing. The Assy Auth must appoint one of the members who is an officer to be the President.2 The President should be the senior member and hold the rank of Captain (E) or above.3

If a COI is appointed to inquire into the conduct of an officer or warrant officer, every member must be of at least equal rank and seniority to that officer or warrant officer; and at least one member must be of superior rank.4

Should a President subsequently find that the conduct of an officer or warrant officer who is senior or superior in rank to a member is or is likely to be called into question, the Assy Auth will need to consider whether to dissolve the Court and to reassemble a new Court.5

Where the inquiry concerns a part of the NZDF other than the Regular Force, the Assy Auth should endeavour to appoint at least one member of the Court from that part of the Service, unless it is not reasonably practicable to do so.6

Further, special orders and some specialist requirements apply in circumstances including death or serious injury (see Section 5, Module D) or an aircraft accident (see Section 5, Module F) or where detailed in single service orders.

An Assy Auth should, however, exercise care where appointing experts to the Court, to ensure that the Court collects all the evidence from the witnesses, as the risk is that the Court may unwittingly place undue reliance upon its assumed knowledge, rather than making findings based upon evidence. Appointing a Court from across the Services, where practicable, and subject to suitability, security clearances and experience, assists with mitigating this risk and any perception of lack of independence or transparency.

Requirements including training pre-requisites, availability and capacity to prioritise the COI are at Section 3, Appointment to a COI.

In summary, before appointing a COI the Assy Auth should consider the legal requirements, ranks and seniority of the Court members, and their suitability given the nature and seriousness of the inquiry, its complexity, who may have been involved with the incident, what unit, and whose character or reputation is or is likely to be affected by the COI and their respective ranks. The Assy Auth should also inform the President if at any time it appears to him or her that an inquiry affects or is likely to affect the character or service reputation of any person (whether or not the person is subject to the AFDA) so that AFDA s 200N (natural justice rights) can be afforded.7

Training

In order to be eligible for appointment, Court members must have successfully passed COI level 1 e-learning training. The Assy Auth is then to direct, on MD 634, which level 2 modular briefs are to be conducted by a legal advisor at the outset of the inquiry. Where required, these can be provided pre-deployment. Generally, it is expected that each COI will receive briefs on Modules A-C, namely Plan, Conduct, and Report. Modules D-G only apply when the topic is relevant.

Mandatory COI

It is mandatory to assemble a COI, without delay, where there has been a death or serious injury to a member of the armed forces in the course of his or her duties. The exception is if the death occurred during armed combat operations or is referred to the CO of the person for a preliminary (disciplinary) inquiry, which may disclose an offence under the AFDA by a person subject to the Act.8

Assy Auths have additional responsibilities for inquiries concerning deaths or serious injuries (see Section 5) and, in most cases, the Assy Auth will be a Superior Commander.

In these circumstances, legal advice should always be sought. The NZDF COI Office can facilitate external liaison with next of kin, the coroner and other agencies.

Health and safety representative

Where there is a death or serious injury, the Assy Auth is to consider appointing a suitably ranked officer, warrant officer or NZDF Civil Staff member trained in health and safety (see Section 5, Module D).

Aircraft accidents

Special orders apply to air accident inquiries, the composition of the Court and procedures.9 (See Section 5, Module F)

Counsel Assisting

Counsel Assisting is to be appointed where the character or reputation of any person may be affected by the inquiry; or the inquiry is likely to involve complex or serious issues of fact of law or both (this includes death or serious injury).

External legal review

The Assy Auth may consider that the circumstances of a COI are so serious and significant and/or of such high public interest that it warrants an external legal review to provide independent legal assurance. The protocol to be adopted to obtain an external legal review by the appointed Queen’s Counsel on the external legal review panel, established under the office of the JAG, is at Section 7. Both the Assy Auth and the President of a COI have functions to perform where it is intended to seek an external legal review.

Assy Auth comments

Once the Assy Auth receives the signed ROP from the President of the Court, the Assy Auth is to record his or her own opinion of the findings, sign the record and if necessary forward the report to the Superior Commander.10 The Assy Auth should record whether there is agreement with each of the findings and recommendations and, if not, the reasons for not accepting them. Further, the ROP should be legally reviewed in advance of these comments to ensure it is legally sound.

Reporting

The Assy Auth is to report the assembly of all COIs to the NZDF Inspector General (IG), through the respective IG and NZDF COI Office. The NZDF COI SharePoint database is to be used to record all relevant information. On completion of a COI, after inserting the Assy Auth comments, the Assy Auth is to ensure that the requisite information has been provided to the NZDF COI Office and IG, that agreed recommendations are documented for action, and reasons for not agreeing with any recommendations are noted.

The original ROP is to be forwarded to the NZDF COI Office, through the command chain and IG, for retention on completion of command and staff action.

Control of ROP

There are statutory constraints on the disclosure of COIs.11 Superior Commanders are required to seek legal advice before deciding whether or not to disclose all or part of the ROP outside the NZDF.

Part 2: General Planning Requirements

Planning is essential for a successful and timely COI. Presidents and Courts should review the Planning principles and tools guide at Annex A, and the Summary of principles and best practice at Annex B. It may also be helpful, as soon as you are appointed to the Court, to refresh yourself on the level 1 e-learning modules.

To be successful, it is vital that Presidents address the following concepts.

Timeliness

As stated in Section 3, it is the responsibility of the President to ensure reports are delivered in a timely fashion. Progress reports should be sent to the Assy Auth if necessary, particularly if an agreed timeframe is not achievable. This can provide useful information to enable Command to manage interaction with and the expectations of interested parties.

Resources

It is vital that a COI ensures it has appropriate resources. Experience shows that the absence of such support can derail the inquiry. Section 3, Annex A provides a helpful resource checklist. The NZDF COI Office can also provide guidance and support.

Experience shows that:

Evidence management

Some evidence is highly perishable—in such cases it is often useful for a COI, at the earliest opportunity, to have it secured or photographed in location by a witness. It is also important that the COI keeps a careful track of all the evidence, for example, through a witness schedule and exhibit list (see Annex A).

External agencies

The COI needs to engage early with interested external agencies and be aware of relevant Memorandum of Understanding (MOU), for example the MOU between NZDF and WorkSafe
New Zealand
. The first step is to liaise with the NZDF COI Office in respect of this.

Media enquiries

During the inquiry, a COI may be asked for information it has obtained by media and other agencies. COI sit in private.

Evidence given or submissions made to a COI are not official information under the Official Information Act 1982. To promote candour, which is essential to the integrity of the COI process, such evidence is not to be released outside the NZDF without Superior Commanders seeking legal advice.12 Further, the Ombudsman has directed that information within the scope of the TOR can be withheld until completion of the COI, as it is only then that an accurate assessment can be made as to whether the information held is evidence that can legitimately be withheld.

However, Presidents do need to be alert to media interest, particularly in high profile inquiries. Presidents should engage with the Assy Auth on the requirement for any progress reports, to inform Command, and enable appropriate arrangements to be made for updates or briefings.

NZDF Public Affairs can also provide support, and Presidents should also be alert to any media approaches to witnesses.

Counsel Assisting

A prudent President is well advised to use the skills of the appointed Counsel Assisting or legal advisor to their fullest extent throughout the COI, from the initial planning phases (where legal advisor/Counsel Assisting will be conducting briefs and on-the-job planning with the Court) and throughout the inquiry and into the report writing phases.

Counsel Assisting can provide advice to ensure that the findings are supported by the evidence, that natural justice rights have been reflected and, where required, that families and external parties have been engaged. It is not the role of Counsel Assisting, however, to write the report. That is the function of the Court, and all findings are recommendations are those of the Court.

Part 3: Analyse TOR

It is paramount that a COI understands and addresses all TOR directed by the Assy Auth. Additionally, as above, during the planning process the Court may identify additional TOR. These should be brought to the attention of the Assy Auth at the earliest opportunity to ensure the Court and the Assy Auth is of the same mind and so that an amended Assembling Order (MD 634) can be issued, if necessary. It is expected that amendments to MD 634 will become more frequent, after the enhanced planning by COI, so a Court or Assy Auth should not be reluctant to amend the MD 634.

A key aspect in planning a COI is to approach the matter with an open mind and to recognise the importance of avoiding tunnel vision while addressing the relevant issues.

Courts will have various levels of learning and experience in planning. The tools in this guide are simply options designed to assist. They are not the only techniques to be adopted.

TOR can be analysed using a four step process:

Step 1: Consider the purpose of your COI based on the MD 634­—don’t look at the TOR yet.

Step 2: Using the brainstorming guide, Planning principles and tools at Annex A, brainstorm the questions that should be in the TOR.

Step 3: Compare the outcome of your brainstorming with the actual TOR.

Step 4: Do you need to clarify any points or propose any amendments to the Assy Auth? Note that the TOR will generally include “comment on any other relevant matters”.

Part 4: Analyse Sources of Evidence

The Planning principles and tools handout at Annex A can be used to create a mind map that presents:

Finally, brainstorm the possible sources of the evidence required and add that to the mind map as the final layer.

Part 5: Sequence and Schedule Witnesses

Review the evidence schedule tool in the Planning principles and tools Annex A. This can be used to produce a list of witnesses with columns for name, date, time and exhibits to be produced.

Witnesses should be ordered according to when the Court wants to call them, taking into account:

  • the intended start date
  • travel and logistics
  • the need to have expert witnesses hear the evidence as to fact
  • witnesses who may need to be given AFDA s 200N (natural justice rights), see DM 69 Vol 1, Chap 11 for orders relating to natural justice
  • availability or non-availability of witnesses
  • coordination with other investigations.

The Court should contact the witnesses to inform them of the inquiry and notify them of the tentative schedule, ascertaining any periods of non-availability (and reasons).

It may be that the Court needs to travel to the witness, or where a witness is unavailable due to operational requirements, the Court should consider use of video conferencing. Note that arrangements will need to be made to record the evidence, provide access to exhibits and ensure evidence can be taken on oath and statements can be signed.

The Court should then go through all the information collected and revise the witness schedule as a team.

The President can then complete MD 637 summons or orders to attend for all witnesses.

Once the list is reviewed and finalised, it is the President’s role to direct order witnesses to attend.13 Witnesses subject to the AFDA should be ordered to attend (using normal Service protocols) and civilian witness should be summoned using a MD 637 form.

It is highly recommended that personal contact is made before issuing any summons to alleviate any unnecessary concern and explain the formality. The cooperation of the witness is paramount and the President needs to set the right tone from the outset. The benefit of the formal summons/order is it provides a lawful basis for requiring the witness to attend and what exhibits to bring. It also assists with certainty about attendance and, indeed, may provide some confidence to a witness that it is their legal duty to participate. Alternatively, without communication in advance, a summons in the mail could potentially alienate an otherwise cooperative witness.

Part 6: Review the Plan

It is important to ensure there is sufficient flexibility in the plan to adjust to unforeseen developments.

Planning and coordination is particularly important in the following situations:

Annex A: Planning principles and tools

The Australian Transport Safety Bureau reminds its investigators to:

  • focus on safety enhancement
  • be objective and fair
  • keep an open mind
  • use a team-based approach
  • analyse before writing analysis
  • recognise their potential for decision-making biases.

These principles represent international best practice and should be followed by all NZDF COIs.

The purpose of this aide-mémoire is to provide you with:

Recognising and avoiding decision-making biases

Starting with the right mind set

When you call a witness, he or she will not only hear what you say, but also read your thoughts and attitudes based on non-verbal communication. Psychologists refer to the ratio of 55/38/7. These numbers represent the percentages of importance of the varying forms of communication. Although importance varies according to context, as a starting point it is claimed that 55% of communication is body language, 38% is the tone of voice, and 7% is the actual words spoken (A. Mehrabian, Nonverbal Communication (1972).

You will also need to bear this in mind when you assess witness testimony—if you have a “feeling” that a witness is being less than candid, why is that? Are you picking up non-verbal communication from them? Or vice versa?

The fact is that a COI whose members present as open-minded, objective and fair is more likely to obtain candid, full and frank evidence from witnesses. This is absolutely critical to the value your COI can contribute to the culture of continuous improvement in the NZDF.

So what does this look like?

You will be attentive, curious and interested in what the witness is saying, because you care. It’s an attitude. One way to help you get into the mindset before hearing evidence is to answer these two questions: Am I curious? Do I care? When we are curious and caring, then we can expect to have more empathy, respect, genuineness, sincere desire to hear—and it helps to suspend judgement.

How do I develop the right mind set?

A crucial first step is to be aware of the “internal commentator” in your head—that is being aware of what you are thinking but not saying, because leaving this unattended is a block to authenticity. The “internal commentator” tends to manifest itself in the form of reactions and judgements—positive and/or negative about the witness, about yourself, about others in the room, about the content of what is being said. It includes thoughts (“What is he talking about?”), judgements (“This is rubbish”, “This is really interesting”, “I can’t do this”) and feelings (“I’m bored”). This internal dialogue is constant and can’t be turned off—so instead, listen to it and become aware. If we reset our purpose to be curious and understand, it will motivate our internal voice to ask different questions.

The reality is that we all have biases and prejudices. It is part of being human. The key to being a successful COI member is to identify those decision-making biases and endeavour to remove or minimise them. In the following sections we will look at common examples of this, so that you can recognise and endeavour to avoid them.

Individual factors

Human error

When we try to make sense of an incident, we can fall into the trap of just seeking out the “bad apple”. That is, looking for wrong or erratic behaviour, bringing to light people’s bad decisions, poor assessments and deviations from orders, and of course singling out individuals who made mistakes.

In this model there is an assumption that complex systems are basically safe and that these systems need protecting from people. It is people who are unreliable. However, like any assumption, it may be false. As a COI you need to test it by collecting and analysing evidence. If an individual did the wrong thing, why did he or she do so? There are plenty of examples where people have made catastrophic mistakes that were nevertheless reasonable mistakes based on the systems they had to use, or the training or experience they had. Sometimes an incident is caused by the negligence (or wilful misconduct) of an individual, but a COI should be slow to arrive at such a conclusion until it has eliminated other potential causes. Why? Because if we simply conclude that “it was John’s fault” without taking proper account of flaws in our systems or training, we will not learn lessons as a Defence Force, and next week Jane may well make the same mistake.

Hindsight bias

Inevitably, you will be conducting your inquiry after the event and you will have more information than individual participants in that event. From this perspective, it is easy to pinpoint what people missed and should not have missed, what they did not do but should have done. Hence the decisions, judgements, and perceptions we form about what is bad or wrong are only bad or wrong from the perspective of hindsight. By saying this or that behaviour is a failure, we are judging it from a standard we impose from the present with our broader knowledge of the mishap. We haven’t explained a thing. Hindsight biases us to the things we now know were important, that those in the mishap did not or may not have appreciated. In order to understand error, you need to investigate the larger system—the human error may be a symptom of deeper trouble inside that system.

Confirmation bias

When we are faced with lots of information, it is natural to develop hypotheses to try to make sense of things. Ideally, our chosen hypothesis should be tested by collecting and analysing relevant evidence—however, it appears that we will often seek out evidence that supports our theory and fail to attend to that which does not. Hence confirmation bias is the tendency to seek and, therefore, find evidence that confirms what one already believes to be true.

False analogy bias

This is when we rely on comparisons with situations that are not directly comparable. Hence we think that two things fit the same mental model, when they may not. (“It looks just like … so it must the same”.) To manage this it is helpful to ask yourself this question: “It looks just like … but are there any differences that would tell me that this situation is different?”

Primacy and recency effect

The primacy effect occurs because the first thing that we hear or see is likely to stick in our mind, and may outweigh more important things that we see or hear later. Recency refers to the phenomenon where what we hear or see last is often what we remember. This is especially important when you have collected a lot of evidence, as the evidence you collected in the middle of your inquiry may be given less weight, but may in fact be more important. Laying all the evidence out and assessing the importance of different pieces is important. Ask yourself this question: “Why does this piece of evidence stand out for me?”

Group factors

Group think

This is when the group becomes so cohesive that they strive more for unanimity than in realistically appraising alternative explanations. This can be exacerbated if the group is isolated from outside expert opinions and when the leader promotes his or her preferred understanding of the event. What is striking about the psychological research in this area is the extreme stated desire among group members in most cases to “please one another”, to be perceived as team players and to retain their membership in the group. To reduce the likelihood of “group think”, the President of a COI should foster open discussion of all alternatives and should avoid championing any one explanation early in discussion.

Group polarisation

This is related to “group think” and is the potential for members of a COI who broadly agree with a particular finding to “go along” with a more extreme version of that finding to stay in tune with the group. This can be avoided by the President adopting the course of action mentioned above, and also by moderating the strength with which he or she expresses views on the evidence.

Authority gradient

If the President of a COI is perceived as not welcoming of particular evidence, or new or different perspectives, other participants in the inquiry may not volunteer such insights or opinions. Presidents need to be aware of the effect that their rank or position may have in stifling healthy debate. A more democratic style of leadership is likely to produce the best results in almost all COI situations.

Planning tools

The following tools are not compulsory and you may choose to use some, all or none of them. However, you need to be aware of them. Experience suggests that high performing COIs use tools such as these and others to aid their planning and conduct of the inquiry.

Brainstorming14

Brainstorming combines a relaxed, informal approach to problem solving with lateral thinking. It encourages people to come up with thoughts and ideas that can, at first, seem a bit crazy. Some of these ideas can be crafted into original, creative solutions to a problem, while others can spark even more ideas. This helps to get people unstuck by “jolting” them out of their normal ways of thinking.

Therefore, during brainstorming sessions, people should avoid criticizing or rewarding ideas. You’re trying to open up possibilities and break down incorrect assumptions about the limits of the problem or issue. Judgement and analysis at this stage stunts idea generation and limits creativity.

Evaluate ideas at the end of the brainstorming session—this is the time to explore matters further, using conventional approaches.

Why use brainstorming?

Conventional group problem solving can often be undermined by unhelpful group behaviour. While a structured analytical process also has its place, it can lead a COI to adopt an overly “blinkered” approach to analysing the causes of an incident and possible preventative measures.

Brainstorming provides a free and open environment that encourages everyone to participate. Quirky ideas are welcomed and built upon, and all members are encouraged to contribute fully, helping them develop a rich array of creative approaches, views or solutions. It will also bring the members’ diverse experiences into play. The findings and recommendations of a COI are likely to be strengthened in this way.

What’s more, because brainstorming is fun, it helps the members bond as a team, as they solve problems in a positive, rewarding environment.

While brainstorming can be effective, it’s important to approach it with an open mind and a spirit of non-judgement. If you don’t do this, people “clam up”, the number and quality of ideas plummets, and morale can suffer. Unusual suggestions may appear to lack value at first sight—this is where the President needs to chair the session tightly, so that the group doesn’t crush these ideas and stifle creativity. Students of military history know that ideas initially scorned as “bizarre” (for example, submarines, tanks and aircraft) have often become the new orthodoxy over time.

How to use this brainstorming

To run a brainstorming session effectively, the President of a COI should follow these steps.

Step 1: Prepare the group

First, set up a comfortable meeting environment for the session. Make sure that the space you are using is well-lit and that you have the resources that you need.

When everyone is gathered, appoint a member (or Counsel Assisting) to record the ideas that come from the session. Post notes where everyone can see them, such as on flip charts or whiteboards; or use a computer with a data projector.

Step 2: Present the problem

Clearly define the problem or issue that a COI needs to resolve, and lay out any criteria that must be met. Make it clear that the session’s objective is to generate as many ideas as possible.

Give people plenty of quiet time at the start of the session to write down as many of their own ideas as they can. Then, ask them to share their ideas, while giving everyone a fair opportunity to contribute.

Step 3: Guide the discussion

Once everyone has shared their ideas, start a group discussion to develop other people’s ideas, and use them to create new ideas. Building on others’ ideas is one of the most valuable aspects of brainstorming.

Encourage everyone to contribute and to develop ideas, including the quietest people, and discourage anyone from criticising ideas.

As the President, share ideas if you have them, but spend your time and energy supporting your team and guiding the discussion. Stick to one conversation at a time, and refocus the group if people become side tracked.

Although you’re guiding the discussion, remember to let everyone have fun while brainstorming. Welcome creativity, and encourage your team to come up with as many ideas as possible, regardless of whether they’re practical or impractical.

Don’t follow one train of thought for too long. Make sure that you generate a good number of different ideas, and explore individual ideas in detail. If a member needs to “tune out” to explore an idea alone, allow them the freedom to do this.

Also, if the brainstorming session is lengthy, take plenty of breaks so that people can continue to concentrate.

Mind mapping

A mind map is a diagram used to visually organise information. It is often created around a single concept, drawn as an image in the centre of a blank landscape page, to which associated representations of ideas such as images, words and parts of words are added. Major ideas are connected directly to the central concept, and other ideas branch out from those. The British psychologist who is credited with inventing mind maps, Tony Buzan, recommends that you use colour, wavy lines and images in your mind maps, because that actually fosters creative thinking. You should also keep the word picture for each element short.

Although they are deceptively simple, mind maps can be a powerful tool when planning a COI. You could put a representation of one TOR at the centre and then break it up into its component elements in the next layer. Maybe those component elements have sub-components? Once you have broken the TOR down, you can brainstorm potential sources of evidence and link those to the relevant component. This method will allow you to visually depict relationships and record lines of inquiry that you might need to pursue. A partial example of how this might be done in respect of one of the TOR from the scenario used in your e-learning follows below:

Evidence schedule

An evidence schedule is a tool that you can use to help you schedule your witnesses and make sure that you have collected the evidence you need to support findings on each of your TOR. It is simply a table with appropriate columns, as indicated in the example below. You may prefer another format.

An evidence schedule might be something that you would populate after brainstorming the evidence you need to collect and mind mapping the results of that brainstorming session.

As you collect the evidence, you can tick it off against the schedule. It is a good idea to maintain the schedule as an electronic document, because it will inevitably need to adapt as circumstances change, or you discover new lines of inquiry or evidence that you need to obtain. Alternatively, a whiteboard works well, especially if it can be used to generate an electronic document or printout. In effect, the evidence schedule can function as the “dashboard” of your inquiry.

TOR

Fact/Issue

Witness

Exhibit

Date/Time

4

Weather conditions

LTCDR Sunny

Met Report

22 Jun 14, 1400

Dekker’s five-step model

Human Factors specialist, Professor Sidney Dekker, has suggested the following five-step model for reconstructing an incident. This model is designed to reduce the effect of hindsight bias.

Step 1: Sequence

Decide on the sequence of events you need to investigate. Bind the event with a start and a finish. Generally the start will be the first assessment, decision or action by people close to the mishap. Sometimes your TOR will give you some indication of this. Otherwise, it is a judgement call.

You may find that you need to move your “start” and “end” points to make sense of the inquiry once you have started to collect the evidence—this is something that the President may wish to discuss with the Assy Auth if in doubt. Having a sequence provides you with a base to organise your reconstruction around—it enables the
second step.

Step 2: Intersections

Identify the intersections or decision points where things took a different turn or could have taken a different turn. Locate the intersections where the important assessments, decisions, actions and changes in the process occurred and lay them out in order. You could use Post-It notes or draw a flow chart.

Step 3: Reconstruct

Reconstruct each intersection. Looking at the intersection from an objective standpoint, what was going on at that time and in that place? Another way of describing this is as the parameters of the incident. Identify the connections between these parameters and the intersections. You can now start constructing a picture or mapping the parameters over time. However, the question remains what parameters were people paying attention to?

Step 4: Identify

Identify the tasks people were carrying out while crossing intersections. This is about what data was available, where was their attention focused? This phase it is about discovering what goals people had. Operators are in the situation to get a job done, so they have goals, and it is these goals that determine where a person looks. Goals provide clues as to which cues were important and which operational demands would have received most attention.

Step 5: Context

Examine how features of people’s tools and tasks and their organisational and operational environment influenced their assessments and actions. This is about putting the picture you have built in its broader context. Consider organisational pressures, rules, policies, conflicting goals and the trade-offs they require, the resources available, supervision, culture, maintenance, roles and responsibilities, planning, morale, time of day, scheduling, training and selection, staffing, operating pressures, etc. The list goes on.

Annex B: Summary of principles and best practice in planning a COI

1. Ensure you understand your TOR and seek clarification if you need to

The reality is that TOR have to be drafted without the insights that you will gain once you start collecting the evidence. If you think the TOR could be improved, the Assy Auth will want to hear from you. If you are not sure what a TOR is seeking, it’s best to clarify that as soon as possible.

2. Keep an open mind

Remember that “a COI whose members present as open-minded, objective and fair is more likely to obtain candid, full and frank evidence from witnesses. This is absolutely critical to the value your COI can contribute to the culture of continuous improvement in the NZDF”. Being aware of your own subconscious decision-making bias is the first step—the Planning principles and tools guide that you have been provided with in Annex A of this module can help you with this.

3. Use a team-based approach

There are some duties that the President must perform, such as summoning witnesses and complying with various formalities. However, a COI will be more efficient if all members (and Counsel Assisting) play the fullest role they can. Counsel Assisting or your regional legal advisor can provide invaluable advice and support and should be engaged at the outset.

4. Use good planning tools

The Planning principles and tools handout in Annex A provides you with some examples of these. Using good planning tools will make your inquiry more effective. You may have your own tools. For example, you may want to adapt the Joint Military Appreciation Process to the task confronting you.

5. Preserve the evidence

The scene of an incident will often be vulnerable to tampering, either intentional or accidental. It may be damaged by weather or other natural occurrences. Documentary or real evidence may be lost or destroyed. Unfortunately, experience suggests that this does happen. If it does, your ability to obtain the best evidence will be compromised. You, therefore, need to factor in measures to preserve the evidence at an early stage of your planning. This might include arranging for photographs to be taken for subsequent production in evidence or for certain exhibits to be taken into custody—the Service Police have experience with this and may be able to assist you.

6. Call expert witnesses to sit in on relevant evidence about the facts

Expert evidence can be very powerful in helping you to resolve technical questions and interpret the significance of things that other witnesses tell you they saw or heard. However, an expert’s evidence is only as good as the factual material on which it is based. That means you should ensure that, wherever practicable, any expert witnesses you think you might want to hear from sit in on the evidence of relevant witnesses as to fact.

7. Use your powers under the law to ensure witnesses attend and produce the exhibits you need

Experience suggests that some witnesses (even initially cooperative ones) may try to back out or “re-arrange your schedule” at the last minute. The law gives the President power to order and summons witnesses for a reason. It is expected that he or she will use that power. If that doesn’t happen, your schedule may become unmanageable and your plan may fail.

It is not the role of a COI to hunt around for exhibits that might be useful. If it occurs to you that you should have a particular document or thing, or that a report should be prepared for you or photographs taken, the law empowers the President to summons or order a witness to attend before a COI with that document or thing. Any real or documentary evidence you wish to rely on must be produced as an exhibit by a witness.

8. Make sure you have the right facilities, administrative support and resources to record and transcribe the evidence

Failure to make arrangements for administrative support can easily derail your planning and impact on the timeliness of a COI. Initiate contact with the NZDF COI Office/Defence Shared Services at the outset to identify what support can be provided.

Recording

Evidence must be obtained verbatim, therefore, you need to obtain a recording device(s) and batteries. Always test recording devices to check the quality of the recording before using them to record the evidence. If it is impossible to hear the recording due to background noise, or for some other reason, you are unlikely to receive a very good transcript. If that happens, the whole process will take a lot longer and you may need to recall witnesses. Without a proper written record of their evidence, you will have nothing to base your findings on in your report! Another common error is failing to think about the potential for classified evidence to be heard. Once there is classified evidence on a digital recorder it must be kept in a secure container and is effectively unusable for other purposes. If you think classified evidence might be heard, you should have a separate classified digital recorder for that. Ask the witness to let you know if they intend to start giving evidence about matters that are classified.

Transcription

Don’t underestimate the time that transcribing documents and checks for accuracy against the recording can take. It is also vital that all the equipment used is compatible and meets security standards. It is helpful to provide the transcriber with all relevant material including the MD 634, glossary and names and particulars of witnesses. Where an external agency is contracted, a confidentiality agreement should be signed. Finally, ensure the witness will be available to sign his/her statement, once it has been transcribed.

Resources

See Section 3, Annex A

9. Watch out for situations where someone is being or might be criticised

Failure to afford AFDA s 200S (natural justice rights) is likely to be the principal reason for an inquiry to be reopened. Whenever you are listening to or looking at evidence, one of the questions you need to ask yourself is: “Does this evidence affect, or is it likely to affect, anyone’s character or the reputation?” Remember that “anyone” includes civilians and even companies. If you think the answer to that question is “yes”, DM 69 Vol 1, Chap 11, Para 11.2.52 onwards explains what you need to do in plain English. It is better to err on the side of caution and afford rights (generally at the earliest opportunity), rather than be required to reopen an inquiry or recall a number of witnesses.

10. Actively coordinate your inquiry with investigations by other agencies or the Service Police

It is now quite common for COIs to be inquiring into matters that are also being investigated by the Service Police, New Zealand Police, WorkSafe New Zealand, or another agency—whether of the New Zealand Government, a foreign government or an international organisation. This is unavoidable and, in some cases, is provided for in an MOU between the NZDF and the other agency. Each of these investigations will have its own TOR and/or legal framework, which will be different to yours.

Experience suggests that the best way to avoid conflicts with other investigations is to establish early liaison and actively seek to coordinate your activities with theirs. The NZDF COI Office/Counsel Assisting can assist with external agency management. Normally, you will not have any particular precedence with respect to these other investigations. Cooperation is the best course of action.

However, in cooperating with other investigations, you need to remember the legal constraint that applies to evidence you collect—it may not be used in evidence against any person in any proceedings, judicial or otherwise. You cannot share any part of your report without the approval of the relevant Superior Commander. If you are unsure of the parameters that apply to your relationship with another investigating agency, seek legal advice as soon as possible.

11. Actively engage with whānau and affected personnel where there has been a fatality or serious injury

Counsel Assisting will be appointed where a COI is assembled into a death or serious injury and the Superior Commander may seek an external legal review. The importance of liaison with Command and personal contact with the whānau and affected personnel cannot be overstated. Specific guidance is provided in level 2 briefs and at Section 5, Module D.

12. Remain flexible

This is a principle that applies to every aspect of Service life, but particularly so in the case of duty as a member of a COI. Even the best plan you make for the conduct of your inquiry is likely to require constant revision as new evidence comes in and new lines of inquiry open up. You need to remain focused on your TOR, but if an issue comes to light that is not covered by the TOR but that is of significance for the NZDF, the Assy Auth needs to be advised at an early stage.

Module B: Conduct a COI

Conducting a COI is a regulated process. An overview of the COI process is in the checklist in Section 4, Module A, Annex A

This section has 11 parts:

Part 1: Different Types of Witnesses

The two witnesses in the scenario represent two types:

Expert witnesses

Expert witnesses who were not involved directly with the incident, but owing to their expertise and experience, have specialist knowledge about the relevant topic.

For example, a trained air accident investigator, a health and safety representative, a technical investigator, qualified engineer in the relevant field, a medical professional, psychologist, flight data analyst.

Witnesses as to fact

Witness as to fact are those witnesses who have relevant evidence and can tell you what they saw, heard, did in relation to a particular incident.

Warrant Officer Damage is the Fleet Nuclear Biological and Chemical Defence Instructor. He knows a lot about fires on board ships.

Petty Officer Wilkins was on duty on the ship, and led the damage control efforts.

Part 2: Expert Witnesses

It is important not to confuse the roles of a Court member appointed to the Court for his or her specialist knowledge and the expert witness who provides testimony to the Court. Each has a distinct function.

Expert court member

Expert witness

Hears the evidence along with his or her fellow members and makes the findings based upon this evidence produced to the Court.

The benefit of a specialist member is that it assists the Court with identifying and understanding relevant evidence produced by a witness.

The risk is that undue reliance may be placed upon this member’s knowledge, without a witness producing the evidence to the Court.

The President in particular needs to be alert to ensure that all findings are based upon evidence that is produced to the Court by a witness, and not by the Court member.

The expert witness is not a Court member; therefore has none of the rights of the Court, but all the protections of a witness

The role of the expert witness is simply to provide evidence to the Court for the Court’s consideration.

At the outset, an expert witness needs to identify his or her expertise and specialisation and the information upon which the evidence is based.

An expert may either give oral evidence based on the evidence as to fact they have heard, or in some cases, may produce a report for presentation to the COI.

A report would often be desirable where the witness has conducted investigations outside the COI, for example, for an air accident investigator.

It is important to recognise that the members of a COI cannot produce the evidence on which the COI relies to make its findings. That evidence must be produced by the two types of witnesses above.

It follows that, where there are insufficient experts in the particular discipline (for example, diving, tanker operations) to provide both a member of the COI and an expert witness, the priority is to provide an expert witness. Regardless of expert Court members or expert witnesses, the Court will need to make its own findings based on the evidence. The Court may draw a different conclusion than an expert, for example, by giving greater or lesser weight to a witness than the expert has.

Further material on expert witnesses in specific cases is at Section 5.

Part 3: Obtaining Evidence

As part of its inquiry, the Court will probably want to admit a lot of documentary evidence and possibly also some real evidence.

It is often useful to have plans/charts/photographs produced by a witness early on that can then be used as visual aids for subsequent witnesses. If the Court wants the witness to mark on the exhibit, that needs to become a new exhibit, so be prepared to have fresh copies available.15

In some cases, the Court might want an expert witness to prepare a report, for example, a crash investigation report, human factors/psychological report, engineering report, etc., if such a report has not already been prepared.

How do you get that material in front of your COI?

Part 4: Calling a witness and administering the oath and caution

It’s very important that witnesses are properly sworn and cautioned before they start to give evidence.16 If that’s not done, it might affect the reliance you can place on their evidence. Some notes and references follow:

Part 5: Recording the evidence

A COI must record or arrange to be recorded in writing the evidence of every witness:17

Each witness may read over the record of his or her evidence and may ask that any necessary corrections be made to it. He or she must initial all alternations and must then sign the record of his or her evidence at the end and initial each page of it.18

Prior to conducting an interview it is prudent to conduct a few checks to ensure the interview is recorded and of a sound quality to enable it to be accurately and quickly transcribed.

Part 6: Questioning Techniques

There are two different types of questions:

Open

Closed

Open questions tend to commence with words like “what”, “who”, “when”, “how”, “where” and “why”. They do not suggest an answer.

Closed questions are much tighter in their construction and will often suggest an answer, for example, “Did you see the chicken cross the road?” Compare this with an open question, “Who did you see crossing the road?” or “What was the chicken doing when you saw it?”

There are advantages and disadvantages to both question types:

Open questions give more space for the witness to give his or her version—they tend to produce more candid and complete evidence. However, witnesses may “ramble” off the topic of most importance to the COI.

Closed questions allow a COI to focus the witness’s testimony. The danger is that the witness/COI may lose sight of something that is relevant and/or the COI may suggest answers to the witness rather than getting the witness’s authentic perspective.

Best practice at the start of the evidence is to invite the witness to tell his or her story, and then explore this before following up with more specific questions. These, along with all the witnesses’ testimony, should be recorded and transcribed verbatim.

The risk with starting with questions is that it can inadvertently inhibit witnesses from raising relevant information, as the witness may incorrectly conclude that he or she need simply respond to your questions rather than volunteering information.

At all costs, avoid the outcome where you hear later that a witness with valuable information says: “They didn’t ask me about it, so I didn’t think to tell him” or “I didn’t think that’s what they wanted to hear”, as they felt influenced or guided by questions from the Court.

It also helpful at the end of the statement to ask the witness if he or she has anything else to state.

Good practice is then to ask the witness to step out, and for the Court to review the testimony and ensure all relevant evidence and exhibits have been produced before releasing the witness. If further evidence is required, remind the witness he is still under oath and caution—or if there is a delay in recalling any witness, re-issue the standard oath and caution.

Part 7: Recognising Evidential Privilege

Although a COI is not bound by the ordinary rules of evidence, they must comply with the law of evidence concerning privilege.19

The law of privilege is relatively complex. Therefore, the safest course is for the President to seek legal advice whenever a question of privilege is raised by a witness.

As a guide, the issue of privilege most commonly arises in COIs in the following types of situation, where a witness claims:

Witnesses have the privilege against self-incrimination and this is specifically brought to their attention in the caution given by a COI. However, that privilege only arises if their answer “would be likely to incriminate the person under New Zealand law for an offence punishable by a fine or imprisonment” (Section 60 of the Evidence Act 2006).

In this case, the evidence raises a possibility that ASA Leaf has committed an offence in relation to the lost stores. The privilege should be granted and the COI should not press Leaf to answer the question. However, the COI would be entitled to note the earlier evidence and Leaf’s claim of privilege in its report. It can be expected that the COI would recommend the matter be investigated by the Joint Policing Unit.

Medical privilege under section 59 of the Evidence Act 2006 only applies in criminal proceedings. It does not apply to a COI. In a COI, a doctor would have to rely on the overriding discretion to exclude confidential information in section 69 of the Evidence Act. However, section 22C(2) of the Health Act 1956 provides that a doctor may disclose health information to any member of the NZDF for the purposes of administering the AFDA or the Defence Act 1990.

In Chief Executive of Department of Child, Youth and Family Service v W [2001] NZFLR 389, Judge Adams held that, where the information is sought within the terms of the particular paragraph of section 22C(2), it “can be supplied regardless of any medical privilege”. It follows that the President has legal authority to require the doctor to answer the questions mentioned in the scenario and no question of privilege arises.

However, specific advice would need to be sought from Counsel Assisting or another NZDF legal officer.

The COI should consider the application of section 69 of the Evidence Act 2006. The President would need to consider whether the public interest in the disclosure of the information is outweighed by the public interest in preventing harm to the relationship of trust and confidence between AHAs and members of the NZDF.

When considering whether to give a direction under section 69, the President must have regard to the:

Part 8: Analysing the Evidence

A COI is not bound by the ordinary rules relating to the admissibility of evidence and, therefore, may admit in evidence any matter of hearsay or any other matter that would be admissible in law.20 If the Court admits evidence of that kind, it is for the court to determine the weight to be attached to that evidence.

A COI must put any questions to a witness that it considers desirable to:

In all cases, when analysing evidence, the Court should also assess:

Weight of evidence

To test for reliability, the Court can ask questions of this or other witnesses and look for consistency between witnesses and with real evidence. Unreliable evidence can generally be disregarded in favour of the more reliable evidence, however, you need to be clear in the report why you favoured one over the other.

Sufficiency of evidence

Is the evidence obtained sufficient to make a solid finding on each TOR? Or does more evidence need to be gathered before there is an evidential basis for a finding? The finding needs to be established on the balance of probabilities­—i.e. more likely than not.

Part 9: Criticism of Superior Officers

AFDA s 200M states:

Assy Auths can mitigate the risk of this situation occurring by anticipating who may likely be affected by a COI during the pre-planning stage, particularly concerning the junior member’s rank and seniority. This will assist with determining the ranks required for the composition of the Court.

Where a report is made to the Assy Auth, the President should record in the ROP, the fact of the report and the Assy Auth’s direction.22

Part 10: Natural Justice Rights

AFDA s 200N states:

Ensuring that AFDA s 200N (natural justice rights) are afforded is a critical feature of COI. Any failure to observe the rules of natural justice can have serious consequences and, therefore, Presidents and members must be watchful of this issue when conducting COIs.

The President must afford AFDA s 200N (natural justice rights):

The President should read out the rights verbatim and may also wish to provide a written copy to the witness to read and consider.

Regardless, the President must take care to note in the ROP:

  • that the rights have been afforded to the specified person (in the statement of compliance with AFDA s 200N)
  • the rights, in detail, that the person has decided to exercise and how those rights were afforded
  • if the person notifies the Court that he or she does not wish to exercise those rights.

The transcript of the witness testimony should also record the detail of the affording of the rights and the response. Where any adverse finding or comment is made, the report should reflect that the rights were afforded.

The requirement to afford these rights may be identified by the Assy Auth or by the Court at any time. However, most frequently it will occur:

In some cases, however, it may not become apparent to the Court until it is preparing its findings and about to draft the report. Even so, the Court should call or recall the relevant witness and ensure that the AFDA s 200N rights have been afforded.

Regardless of the stage of the proceedings, the key is to ensure the rights are afforded.

Failure to do so could result in a COI having to be re-opened to rectify the omission or, in extreme cases, it could result in a judicial review (see Module C).

Part 11: Legal Representation

The COI sits in private and there is no right of legal representation.24

Legal representation is only permitted upon request, and if the President approves, to personnel who are affected or may be affected by the inquiry and who are, therefore, afforded AFDA s 200N (natural justice rights).

In making this decision under AFDA s 200O as to whether a person affected by the inquiry may be legally represented, the President must take into account the following matters, which are attached at Annex J:

A decision not to grant legal representation may be subject to judicial review by the High Court. It should be taken after receiving legal advice from Counsel Assisting or a NZDF legal advisor. If in doubt, the President should err in favour of granting legal representation.

If a party before a COI is legally represented, Counsel Assisting must be appointed, and the Counsel Assisting will need to take more of a leading role (subject to the authority of the President) to ensure that the proper procedure is followed and the external counsel does not dominate the COI inquiry.

The appointment of counsel to represent a party is a clear warning signal that the report of a COI may be legally challenged; it follows that Counsel Assisting and the President and members will need to be particularly scrupulous in complying with procedural rules, especially natural justice.

Annex A: Flowchart for conduct of a COI

Invite witness to be seated before the Court.

President: “We are assembled as a COI to collect evidence relating to [insert subject of inquiry]. There are some formalities that we need to go through, but before I do that, I will explain to you how the process works.”

President introduces himself or herself and the other members of the COI.

President: “It is our job to hear all the evidence and answer the TOR that we have been given. That means we need to ask you some questions. The evidence has to be given on oath, or you can make a solemn affirmation instead if you prefer.”

[If Counsel Assisting has been appointed.] “We are assisted by [name of Counsel Assisting]. He/she is a lawyer and it is his/her role to advise us on law and procedure. He/she may also ask you questions to help clarify things for us.”

President confirms witness’ understanding.

President: “It is important that you realise that this COI is focused on finding out what happened so we can try to prevent a repeat. It is not a disciplinary body. The evidence you give cannot be used against anyone in any subsequent proceedings. It is not official information and, therefore, is not subject to release under the Official Information Act 1982. It can only be released under explicit provisions of the AFDA 1971. I will also give you a caution that you do not have to answer questions that might incriminate you. Do you understand that?”

If witness was required to bring one or more exhibits by the summons or order requiring attendance, the President confirms that the witness has brought those exhibits before the Court.

President indicates to witness that he or she will now start the digital recording and does so.

President: “Could you please state your full name, address and occupation.”

President: “Do you wish to take the oath or affirmation?”

President administers the oath or affirmation in the proper form, as prescribed by
DM 69 Vol 1, Para 11.2.34–11.2.39.

Standard Christian oath or affirmation procedure is on following page. Different procedures apply for persons of Jewish faith, those who wish to take the Scots form of the oath, and children25

Oath

Affirmation

Preliminary

Witness removes headdress, unless religious objection to this.

Witness takes Bible, Old Testament or New Testament in right hand.

Witness raises right hand.

President

“Do you swear by Almighty God that the evidence you will give before this COI will be the truth, the whole truth, and nothing but the truth?”

“Do you solemnly, sincerely, and truly declare and affirm that the evidence you will give before this COI will be the truth, the whole truth, and nothing but the truth?”

Witness

“I do.”

“I do.”

President: “Before you give evidence, I must inform you that you may refuse to answer any question the answer to which may tend to incriminate you or to expose you to any penalty or forfeiture. It is for you to raise the objection and for the Court to decide whether your objection is well-founded and whether you may, therefore, refuse to answer the question.”

President confirms the witness’ understanding.

Annex C: Witness caution25

After a witness has been sworn or affirmed, the President is to caution the witness as follows26

“Before you give evidence, I must inform you that you may refuse to answer any question the answer to which may tend to incriminate you or to expose you to any penalty or forfeiture. It is for you to raise the objection and for the Court to decide whether your objection is well-founded and whether you may therefore refuse to answer the question.”

The President is to ensure the witness understands the caution and is to record that the caution has been given.

The giving of the caution is to be recorded in the ROP in the format prescribed in Annex A to
DM 69 Vol 1, Chap 11
as follows:

WITNESS 1

…………………...........................................………………………………………

[state name, address occupation and service particulars] having been duly cautioned in accordance with DM 69 (2 ed.) Vol 1, Chap 11, Para 11.2.40 states on oath:

[Followed by text of statement]

WITNESS 1

Leading Seaman Combat Specialist William Rocky Te Vaka C1107896 of HMNZS WELLINGTON, naval rating, having been duly cautioned in accordance with DM 69 (2 ed.) Vol 1, Chap 11, Para 11.2.40, states on oath:

Q1: Leading Seaman Te Vaka, what was your job on the RHIB on the day of the collision?

A1: I was the coxswain, sir.

Q2: Can you tell the Court what happened leading up to the collision?

A2: Well sir, Dinger Bell and me—that is, I mean Able Communications Operator Bell and me—were detailed off to do a stores run to shore to pick up some spare parts for the Engineer. As I say, I was the coxswain and Dinger was the bowman. It was a bit of a rush job, because the stokers needed these parts to fix some part of the main engines that was going to stop us sailing the next day. Anyway, we headed away from the ship towards town at about 0900...

Q3: What speed would you say you were doing through the water?

A3: Ah, once we got clear of the ship, probably about 20 knots, sir.

Q4: Thank you. So what happened next?

A4: Umm, we were just coming round the point heading into the main channel into the port. Everything looked good. I couldn’t see any obstructions. Then, smack, we hit something pretty hard. It felt like whatever it was had hit us on the starboard bow, because it pushed me right off course and we almost stopped dead. I thought “shit, what the f... was that”. Excuse me sir. I looked over the side and I could just see this big white thing floating just under the surface of the water. It looked like a shipping container like you get sometimes. That’s what I think it was.

Q5: What happened to ACO Bell?

A5: Ah, sir, he got thrown aft by the impact. Not too hard though. He was OK. Just a bit “what the f...”, you know sir.

Q6: What was the weather like?

A6: Typical day in the tropics, sir. It was fine and sunny, about 28 degrees I think. There was no swell to speak of.
...

Q21: Thank you, Leader. Is there anything else that you think this COI should be aware of in relation to this incident?

A21: Ah, no sir.

[Signature of witness]
[Date]

WITNESS 2

Able Communications Operator Matthew Graham Bell W1120823 of HMNZS WELLINGTON, naval rating, having been duly cautioned in accordance with DM 69 (2 ed.) Vol 1, Chap 11, Para 11.2.40, states on oath:

Q1: ACO Bell, what was your job on the RHIB on the day of the collision?

A1: I was the bowman, sir.

Q2: Had you done that duty before?

A2: Yes sir. Three or four times.

Q3: Can you tell the Court what happened leading up to the collision?

A3: Sir, I got in the boat with Rocky, I mean LSCS Te Vaka. We had to do a stores task, so we had to take the RHIB into port. Rocky was in a real hurry to get away...

Q4: What time was that?

A4: I don’t know sir. It was a while after colours, but... probably around 9 o’clock thereabouts.

Q5: And what happened?

A5: Well sir, we had to go round a point to enter the port. We were going pretty quickly I thought. And we went really close to the land. I could see some breakers on the reef nearby. Next thing I knew we hit and I got thrown backwards. I think we hit the reef.

Q6: What speed would you say you were doing through the water?

A6: Ah, once we got clear of the ship, probably about 30-40 knots, sir.

Q7: Anything else you can tell us?

A7: Ah, not really sir.

Q8: What was the weather like?

A8: It was a nice day, sir. Warm and sunny. The sea was very smooth.
...

Q15: Thanks ACO. Is there anything else you think we need to be aware of relating to this incident?

A15: Umm, well I don’t want anyone to think that I don’t have confidence in Leading Seaman Te Vaka as a coxswain, cos I do.

Q16: OK, thank you ACO Bell. That’s all for now.

[Signature of witness]
[Date]

WITNESS 3

Chief Petty Officer Marine Technician Alison Mary Spanner R9997823 of HMNZS WELLINGTON, naval rating, having been duly cautioned in accordance with DM 69 (2 ed.) Vol 1, Chap 11, Para 11.2.40, states on oath:

Q1: Petty Officer Spanner, what is your appointment in HMNZS WELLINGTON?

A1: I am the Deputy Engineering Officer, sir. I am responsible for the maintenance of the ship’s boats.

....

Q6: Did you take a photograph of the damaged RHIB once it had been hoisted back inboard?

A6: Yes sir.

Q7: Could you now produce that as an exhibit?

A7: Sir.

Q8: That is admitted as Exhibit G.

.....


[Signature of witness]
[Date]

Annex H: Exhibit certification—certified true copy of a document

Annex I: Rights of person who may be affected by inquiry

The following applies at any time it appears to an Assy Auth or to a COI that an inquiry affects or is likely to affect the character or the reputation of any person (whether or not the person is subject to the AFDA):26

The President must

Ensure that the person is given adequate notice of the time, place, date, and nature of the inquiry and a reasonable opportunity to exercise the rights set out below.

Exception

The inquiry is under AFDA s 201 into the absence of a member of the armed forces.

The rights of a person who may be affected by inquiry are as follows:

The President is to note in the ROP which rights the person has decided to exercise and how those rights were afforded. If the person notifies the Court that he or she does not wish to exercise their right, the President must also note the ROP to that effect.

Annex J: Legal representation by a person affected by inquiry

When a person is likely to be affected by the inquiry, the person may apply for the President’s approval to be legally represented at the inquiry.

When this happens, the President must take into account the following matters in determining whether that person should be legally represented at the inquiry:27

Calling of witness by person affected by inquiry28

If a person who is affected or likely to be affected by an inquiry tells the President that he or she wishes to call a witness, the President must:

If it is impracticable to secure the attendance of a witness, the President must note that fact in the ROP.

If the attendance of a witness is requested under DM 69 Vol 1, Para 11.2.54d and the COI is satisfied that the attendance of that witness is not properly required by that person, any cost incurred by the Crown in procuring the attendance of the witness may be charged to, and recovered as a debt due by, the person affected or likely to be affected.

Module C: Write a COI report

In the MD 634, the Assy Auth directs a Court to collect and record evidence. In general, the Assy Auth will also direct the Court to report and comment.29

The format for the courts report is at DM 69 Vol 1, Chap 11, Annex A.

This module has three parts:

Part 1: Why is good writing important?

1. It strengthens your findings and recommendations.

A well-written report is likely to be more persuasive. This is a question of form and substance. This means your findings must be supported by evidence cited in the report. If your draft findings adversely affect anyone’s reputation or character, you must give them a chance to make a submission on those findings and take it into account before you finalise the report. Submissions can be invaluable in correcting an unintended mistake. A well-written report will document that process—it can save a lot of time and angst later on.

2. It demonstrates your professionalism.

For most officers, the report of a COI is the most important document you will ever write. The findings must be sound and supported by evidence, and the report must be accurate, logical and easily understood by a broader audience. A poor quality report will reflect badly on the NZDF. It could result in the inquiry being challenged or re-opened and may jeopardise the expeditious implementation of remedial action.

Part 2: What does good writing mean?

Plain English

Evidence-based

Make sure your findings are actually supported by the evidence! If you have had to resolve a conflict in the evidence, indicate that and how you’ve resolved it.

Comprehensive

Your headings should address each TOR.

Where can I get help?

DM 69 (2 ed.) Vol 1, Chap 11, Annex A provides a proforma that you can follow for your report.

Counsel Assisting does not sign the report and is not responsible for the findings, but can provide significant help in structuring and writing the report.

Part 3: Examples of bad and good report writing

The bad

TOR 1: When, where and at what time did the incident occur (enclose maps and photographs if available)?

1. The incident took place at approx 1045 hrs on 19 Jun 14 at Old Renwick Road near BLENHEIM.

...

TOR 5: Who was driving the truck?

15. On balance, we think that the truck was being driven by CPL MCLAREN , but some evidence suggested it was SGT GUNNY.

TOR 6: Describe the driver’s activity in the 24 hours prior to the incident.

16. The Court was told by one of the witnesses, CPL A.F. FRAME T1109998 AVMECH, that he was pretty sure CPL MCLAREN had an early night the night before doing the driving task, but “the lads” were at the pub and CPL FRAME was “hammered”, although when the Court considered the other evidence such as the ROs issued by the OC JIOT Det and the oral evidence given by the OC, SQNLDR BOSSMANN, the Court came to the view that it was more likely that CPL MCLAREN was not at the pub that night.

  1. The headings need to reflect the TOR, but should be concise and do not need to follow the wording of the TOR exactly.
  2. Use of abbreviations is inappropriate in a COI report— this is a piece of formal writing.
  3. Full capitalisation is the written equivalent of shouting. It is not necessary here.
  4. There is no footnote indicating the evidence on which this finding is based.
  5. Not formal; “The Court finds” or “we find”, not “we think”.
  6. Passive verb—the active form would be better plain English.
  7. There is insufficient explanation and evidence on how the Court came to its finding. This leaves the finding vulnerable to challenge.
  8. These abbreviations are undefined.
  9. This sentence is far too long. It should be broken up into a series of sentences. No evidence has been indicated to support the findings.

The good

General

1. The inquiry was carried out over the period 21 June to 4 July 2014. Evidence from 15 witnesses was considered.

Circumstances of the incident

2. The incident took place at approximately 1045 hours on 19 June 2014 at Old Renwick Road near Blenheim.1

The driver of the truck

15. The Court heard conflicting evidence on the identity of the driver of the truck at the time of the accident. The Court finds that Sergeant Gunny and Corporal McLaren were both in the cab at the time of the crash. Sergeant Gunny gave evidence that he was in the cab and that Corporal McLaren was driving.2 This is supported by the evidence of Lieutenant M.E. Black, RNZN, who stated that she saw Corporal McLaren in the driver’s seat of the truck when it left the unit that morning.3 This evidence was corroborated by the Operational Order (OPORD) issued for the activity by the Officer Commanding, Squadron Leader Bossmann.4 The OPORD stated that Corporal McLaren was duty driver for the task. Corporal McLaren is still unconscious and, therefore, was unavailable to give evidence.

16. The Court also heard evidence from Corporal A.F. Frame T1109998 AVMECH, who is a friend of Corporal McLaren. Corporal Frame gave evidence that Corporal McLaren had told him that, although McLaren was duty driver for the truck in the OPORD, Sergeant Gunny had told him he was going to drive the truck because he was “going to give the officer cadets a few bumps to harden them up”.5 The suggestion that Sergeant Gunny was driving is supported by the evidence of V998765 Sergeant P.T. Fitness, NZAPTC, who stated that he saw Sergeant Gunny driving the truck. Sergeant Fitness was out for a run when the truck passed him on Old Renwick Road at about 50 kilometres per hour.6

  1. This first section complies with the proforma in
    DM 69 Vol 1,
    Chap 11, Annex A.
  2. This heading will permit a COI to blend in its findings on TOR 1 with TOR 2, “What activity was the truck being used for at the relevant time?”, and TOR 3 “How many personnel were in the back of the truck?”
  3. The footnote indicates the evidence supporting this finding.
  4. These two personnel would be identified by their full Service descriptions earlier in the report.

Continued overleaf

17. Having heard this evidence, the Court afforded Sergeant Gunny natural justice rights under AFDA s 200N. Sergeant Gunny decided to give further evidence. He did not deny saying what Corporal Frame alleged, but stated that he was joking when he said it.7

18. On the balance of probabilities, the Court finds that Sergeant Fitness was mistaken in his identification of Sergeant Gunny as the driver and accepts the explanation given by Sergeant Gunny. The Court finds that Corporal McLaren was driving the truck when it crashed.

1 Witness 4, Q8–10; Exhibits C, D and E.

2 Witness 5, 24 June 2014, Q3–7.

3 Witness 8, Q4–6.

4 Exhibit G.

5 Witness 2, Q5–9.

6 Witness 9, Q4–12.

7 Witness 5, 28 June 2014, Q2–6

  1. The footnote uses a date for the witness evidence, because the witness was called more than once.
  2. Explanation of how the COI has resolved the conflict of evidence and arrived at its finding.

Module D: Death and serious injury inquiries

Introduction

Module D provides guidance on some particular considerations for COIs into deaths or serious injuries.

It is mandatory to assemble a COI, without delay, in every case where a member of the armed forces dies or is seriously injured in the course of his or her duties, unless:30

Where a COI is assembled, the TOR are to be drafted by a legal officer and Counsel Assisting is to be appointed.

In all cases, the NZDF COI Office is to be involved from the outset and legal advice is to be obtained.

Module D has three parts:

Part 1: Engagement with External Agencies

Commanders are responsible for reporting and notification of death and injuries through the command chain to WorkSafe New Zealand and relevant agencies. Where death or serious injury occurs, however, the COI Office at HQNZDF is also to be notified. This is so the NZDF COI Office can notify the coroner and, after initial command reporting, liaise with WorkSafe New Zealand,31 the Police, and/or other relevant agencies as the case requires to facilitate coordination with the COI. In the case of deployed forces, the duty of immediate notification of coalition command elements and/or UN agencies will fall on the New Zealand senior national officer.

It is important for COIs to realise that, in cases of this type, there will inevitably be a number of different investigating agencies with a legitimate interest in the matter. The President should be alert to the need to coordinate investigations. Their parameters will often be quite different to those of a COI. For example:

Best practice when dealing with a coroner

When dealing with the coroner, the best practice is to provide him or her with a copy of the COI report. This is simply to inform the coroner of the inquiry undertaken and may assist with any decision as to what further action the coroner wishes to take. This aspect will be handled by the NZDF COI Office, in consultation with command.

It is subject to the following considerations:

  • Disclosure to the coroner requires the prior approval of the relevant Superior Commander;37
  • The report cannot be disclosed to any other person by the coroner without the approval of that Superior Commander.
  • The report cannot be used in evidence against any person. If the coroner decides to make a finding on the papers, instead of proceeding to an inquest, NZDF can provide an additional statement which can be relied upon. Alternatively if an inquest is conducted, witnesses may be called afresh.
  • The copy to be disclosed must be examined to ensure that any information requiring redaction on the grounds of national security is redacted, unless security arrangements are in place with the coroner’s office.
  • The version disclosed to the family should also be provided.
  • If the person who has died is a member of a visiting force, special rules apply to cooperation with the coroner, and specific legal advice will need to be sought in every case.38
  • If it is decided that the NZDF will assemble a COI into the death of, or serious injury to, a member of a foreign force, best practice is to offer the parent Service of the deceased the opportunity to nominate a suitable officer to be appointed a member of the COI.39 It is also possible that the foreign force will conduct its own inquiry.

36 37 38

Part 2: Engagement with whānau/Family39

If a person is seriously injured, it may be helpful to engage with his or her family or whānau. However, the permission of the injured person must be obtained before doing so, unless that would not be practicable due to his or her injuries. In a case of doubt in respect of the person’s capacity to make this decision, the opinion of the medical practitioner treating the person should be sought, as should specific legal advice.

In the case of a deceased person, the COI must seek the direction of the Assy Auth in respect of engagement with the family/whānau, during its planning process.

Who provides advice to the Assy Auth?

  • COI Office
  • Defence Legal Services
  • Defence Public Affairs
  • Casualty Liaison Officer (CLO)
  • Family Liaison Officer (FLO)
  • Chaplaincy41

Proper consultation with the whānau/family is a very time-consuming process—it cannot be rushed. All engagement with the whānau/family must be approached with empathy; if this is not done well, the outcome is likely to be even more time-consuming, hurtful to the whānau and damaging to the NZDF’s reputation.40

Consistently with this, all approaches to the whānau or family, even if necessarily in writing, must be preceded or accompanied by empathetic personal contact.41

It is also important to communicate equally with all immediate family members within the family (where an agreed representative has not been appointed) and across all families in cases of multiple casualties.

Experience has shown how important it is to maintain continuity of contact with the whānau. A small team approach has proven most successful, so the President can focus on the inquiry and withdraw on completion, yet continuity is maintained. While it is recommended that the President and Assy Auth take an active part in briefings during the inquiry, if this aspect is to be handled by the CLO or FLO, it is vital that he or she is well briefed on the inquiry and provided with specialist support.

Who is the whānau/family?

In determining who comes within the definition of whānau/family for the purpose of this engagement, the starting point is the definition of immediate family in section 4 of the Victims’ Rights Act 2002:

Immediate family, in relation to a victim:

(a) means a member of the victim’s family, whānau, or other culturally recognised family group, who is in a close relationship with the victim at the time of the offence; and

(b) to avoid doubt, includes a person who is –

(i) the victim’s spouse, civil union partner, or de facto partner; or

(ii) the victim’s child or step-child; or

(iii) the victim’s brother or sister or step-brother or step-sister; or

(iv) a parent or step-parent of the victim; or

(v) a grandparent of the victim.

Lessons learnt indicate that reliance on next of kin records alone is dangerous. Careful and thorough enquiries need to be made to ascertain the key members in the deceased person’s family or whānau—this can be a complex matrix in modern New Zealand.

The whānau/family should be invited to appoint one person to represent them in this engagement, however, that may not always be practicable or appropriate, so a degree of flexibility is necessary.

What rights does the whānau/family have?

The President of a COI should give the whānau/family an initial brief following the planning of the COI (the intent to assemble a COI is generally headlined in initial communication with the family). This brief should address the purpose of the COI, including what it will not do; the inquiry process; the Court’s responsibilities and include guidance on what rights they have to participate in the process, namely:

It is important that the Assy Auth is aware of, and comfortable with, whatever steps a COI proposes to take in engaging with the whānau/family of a deceased or seriously injured person. The reason for this, based on lessons learnt, is that a misstep in this area can cause unintended strategic consequences, including reputational damage.

The initial contact sets the tone for the relationship and it is vital that the immediate family/whānau are engaged consistently throughout on an equal basis; that they are regularly updated and that all practicable steps are taken to inform them in advance of any media engagement.

Findings

Noting that the purpose of a COI is not to attribute blame or make a finding of guilt, nevertheless, the fundamental purpose of the inquiry is to establish the facts. It may be that the facts as found have clear and adverse implications for one or more persons, including a deceased person. For example, it may be a finding of the Court that a crash occurred because the driver was going more quickly than was safe for prevailing weather conditions. Where such a finding can properly be reached, it is important that it is stated clearly.

The Court should, however, avoid language that is emotive or that is judgemental beyond what is necessary to establish the relevant events and causes. The Court must ensure that AFDA s 200N (natural justice rights) are afforded to living personnel, in their own right, and to the family of a deceased as described above.

Publication of a COI report

In many, if not most COIs into death or serious injury, there will be pressure to publish the report of the COI in order to demonstrate transparency. With this in mind, the consultation with the whānau/family should include discussion on their views about such publication. These views must be forwarded to the Assy Auth. However, the whānau/family’s view will not necessarily be determinative of whether or not the report is published—they need to be made aware of that.

The President, acting through the CLO or FLO, is to ensure that the whānau/family are assisted to attend any release of the COI findings, if they wish to do so.43 The whānau should also be offered the support of a media liaison representative. Similarly, the Court should plan for and address with the Assy Auth, timeframes and requirements for internal communication, and an external legal review prior to the release of the report.

Part 3: Miscellaneous

Health and safety representatives

Where a COI involves a death or serious injury, CDF has directed that a health and safety representative should be involved. If you do not have a NZDF health and safety expert as a member of your COI, you must summon/order a health and safety representative as an expert witness.

Well-being of COI, witnesses and affected personnel

The President should seek a brief from a NZDF psychologist at the outset of the inquiry on issues to be alert to. A similar de-brief at the conclusion is also desirable and should be offered to the court and witnesses.

Cultural and religious factors

A COI into a death must always be conscious that the customs, protocols and beliefs of the deceased person’s whānau/family with respect to death may not be the same as those of the COI members.

To avoid this trap, a COI needs to obtain as much information as it can regarding any such customs, protocols and beliefs as part of the planning process. Both the cultural and religious background of the deceased person and his or her whānau/family need to be considered. Assistance may be sought in this respect from the NZDF Manager Equity and Diversity in HQNZDF.44

NZDF is committed to biculturalism under the Treaty of Waitangi. NZDF Māori Cultural Advisors can assist with advice and support on tikanga Māori.

Example of cultural awareness

In many Pasifika cultures, there is such a strong tradition of respect and deference to palagi authority figures, that family members may appear unwilling to contribute even though they may wish to. The danger is that feelings may be hurt without the COI even realising it, if the cultural context is not properly taken into account.

Annex A: Example letter to whānau of a deceased releasing draft report
for comment

[Include appropriate letterhead]45 [File ref]

Mr and Mrs B. Nelson
40 Trafalgar Square
LONDON

Dear Mr and Mrs Nelson,46

COURT OF INQUIRY INTO DEATH OF HORATIO NELSON

I wish to take this opportunity to pass on my sincere condolences for the loss of your son, Horatio.

I would also like to offer you the opportunity to participate in the efforts that the Navy is making to learn whatever lessons we can from his tragic death.

A few weeks after Horatio’s death, I assembled47 a Court of Inquiry to get to the bottom of what happened. The Court conducted its proceedings over a four month period and has recently produced a draft report for my consideration. The Court interviewed a total of 20 witnesses, including yourselves.

Under the law, it is my duty to comment on the findings of the Court. Before I do that, I think it is important to consult with you48 and seek your input. Accordingly, I have decided to release the draft report to you, less the statements of evidence and exhibits (which must be protected by law). The purpose of this is to allow you an opportunity to comment on the findings of the court and to enable you to provide any additional evidence that may be relevant to the inquiry.

As the report is still in draft, it is important that you treat the draft findings as confidential until I advise otherwise. Under section 200T of the Armed Forces Discipline Act 1971, this document must not be disclosed to anyone outside the NZDF without my permission.

While Horatio was only with us in the Navy for a relatively short period of time, he made many friends and was part of our military family. In this way we share your loss and our thoughts and sympathy are with you, especially at this time of the year.49

If you have any queries in relation to this letter, please do not hesitate to contact me.50

Yours sincerely,

C. LORD
Captain, RNZN
Assembling Authority

Enclosure:

1. Draft copy of Court of Inquiry Report into the death of E106563 Midshipman H. Nelson, RNZN dated 31 November 20xx.

Annex B: WorkSafe NZ/NZDF MOU51

Module E: Maritime safety events

Introduction

Module E builds on the preceding sections and provides guidance on some particular considerations for COIs into maritime accidents.

Where death or serious injury occurs, this module should be read in conjunction with Module D.

Module E has four parts:

Part 1: Expert witnesses in an inquiry into a maritime safety event

Notwithstanding the requirement to appoint a Cross-Service Court where practicable, it is beneficial for one or more members of a COI into a maritime safety event to have sound knowledge of sea safety.

However, it is important to recognise that the members of a COI cannot produce the evidence on which the COI relies to make its findings. That evidence must be produced by witnesses as to fact and expert witnesses (see Section 4, Module B, Part 1). It follows that, where there are insufficient experts in the particular maritime discipline (for example, diving, tanker operations) to provide both a member of the COI and an expert witness, the priority is to provide an expert witness. The COI must ensure that the expert witness has expertise in the particular field and that he or she details the evidence or material upon which his or her evidence is based. Therefore, the President may allow an expert witness to view or read all relevant evidence before preparing a report and giving evidence. It remains, however, the role of a COI to make its findings—this is not the role of the expert witness.

In addition to experts from within the NZDF,52 a COI should consider whether it is prudent to call an external expert witness to examine the evidence collected by the COI to provide an assessment of the likely cause(s) of the accident. This may be useful in areas where other Services or agencies have particular expertise and has the advantage of demonstrating independence.

External expert witnesses could be sought from agencies such as the Transport Accident Investigation Commission (TAIC), Maritime New Zealand (MNZ), an allied sea service,53 or the Merchant Service in appropriate cases. In all cases, the Court should ensure there is no conflict of interest and identify that the evidence of the COI is solely being disclosed for the purposes of informing an expert opinion, and cannot be used in evidence in any other proceedings. The Court should also be alert to variations in equipment, training and resources.

If the maritime safety event involves a civilian vessel or craft as well as a warship or naval boat, TAIC will be involved pursuant to the MOU between NZDF and TAIC, and the court must familiarise itself with the terms of this MOU (see Annex A).

When determining an appropriate person to be called as an expert witness on the causes of a maritime safety event, a COI should ensure that the expert selected has relevant qualifications, experience and current knowledge in the specific field. For example, it would be expected that an expert on navigation or ship-handling would have significant sea service in command or as a Head of Department. Equally, it may be the Chief Bosuns Mate of another ship who has the expertise on the relevant seamanship issue. The COI may need to call expert witnesses in a range of disciplines. A non-exhaustive list of examples would include experts in:

When recording the evidence of an expert witness, it is important that an evidential foundation is laid to substantiate that witness’s expertise. An example of how such evidence might be recorded is indicated below:

WITNESS 1

Commander Bram Stoker, RNZN of Wellington, Director Marine Engineering

having been duly cautioned in accordance with DM 69 (2 ed.) Vol 1, Chap 11, Para 11.2.40, states on oath:

I am currently serving in Capability Branch at Headquarters New Zealand Defence Force as Director Marine Engineering. In this role I am responsible for...

I hold a Bachelor of Engineering (Mechanical) with first class honours from the University of Auckland. I have completed marine engineering application courses in the Royal Navy and have qualified as a charge marine engineering officer on both ANZAC class frigates and the fleet tanker. I have completed two periods as Marine Engineering Officer, one in HMNZS TE KAHA, and one in HMNZS ENDEAVOUR, making a total of six years as a head of department at sea, over the past eight years. I have also held various marine engineering appointments ashore at Devonport Naval Base.

At the request of the Court of Inquiry, I have examined all the evidence collected by the Court into the failure of propulsion systems on board.

Based on this evidence, in my opinion...

Part 2: Securing and Obtaining Evidence

Securing evidence at the scene

Experience indicates that real and documentary evidence at the scene of a maritime safety event is particularly vulnerable to unwitting tampering, destruction or loss. It is vitally important to the integrity of the process that the COI ensures all such evidence is secured and/or recorded (for example, by making a photographic record) as soon as possible after the event. Service Police have experience in preserving incident sites and evidence, and they have facilities for securing the evidence. They represent an invaluable resource that a COI may be able to use to preserve the evidence until the COI is able to take control of it.

Obtaining evidence from overseas

If a witness required by a COI is a member of the armed forces who is deployed overseas, the witness can still be ordered to give evidence. The COI has the power to sit overseas. However, a COI may be able to receive the evidence by VTC, Skype or teleconference, provided that it can be sure that:

There may be circumstances where a COI needs to call evidence from a civilian who is located overseas. An example might be the representative of a manufacturer of naval ordnance or equipment parts. In such cases, while the aforementioned technology can be used to obtain the evidence, the COI cannot serve a summons on a person who is outside New Zealand and is, therefore, reliant on the witness’s cooperation.

Part 3: Event Chronology and Causative Factors

Subject to the TOR, a COI into a maritime safety event can usefully consider each step in the accident using the event chronology provided below. The President may wish to discuss this with the Assy Auth. As the COI examines each step in the chronology, it should identify the causative factors that may have a bearing on that step. A non-exhaustive list of causative factors is also provided.54

Event chronology

  • Tasking
  • Context of the ship’s deployment / training cycle
  • Last port call
  • Other ship’s activities being conducted contemporaneously
  • Ship’s preparation to conduct the task, including hazard / risk identification and management
  • Relevant circumstances leading up to the event, including those immediately prior to the event
  • Event
  • Post-event actions
  • Seaworthiness55
  • Any other relevant steps.

Possible causative factors56

Human factors

Technical factors57

  • Training
  • Experience
  • Medical factors (for example, fitness for sea)
  • Currency in relevant maritime skills/recency
  • Competence
  • Psychological factors.
  • Design flaws
  • Maintenance record.

External factors

Organisational factors

  • Environment
  • Weather
  • Sea conditions (for example,
    sea state, temperature)
  • Other environmental constraints (for example, rocks, reefs, shoals)
  • Adequacy of charts and other nautical information
  • Other marine traffic.
  • Command oversight
  • On board supervision
  • Training and experience level of department/ship’s company
  • Level of audit and inspection at fleet level
  • Orders, instructions and procedures:
    • Fitness for purpose
    • Ambiguity
  • Organisational processes, expectations and pressures
  • Culture of the ship or unit and the fleet in general.

55 56

Part 4: Interim Reporting

A maritime safety event will sometimes raise the prospect of a technical factor that could require one or more ships, or a unit like the Operational Dive Team, to cease operations pending rectification. This may have huge implications for the Navy’s ability to deliver its outputs. It is, therefore, not surprising that COIs of this nature typically produce a tension between command’s need to obtain critical information as quickly as possible, and the time that is required to conduct a complex inquiry in a thorough and responsible manner.

The solution to this tension lies in interim reporting. As soon as the COI has completed its initial planning, the President should make an appointment to speak with the Assy Auth about a timeframe for interim reporting. It is quite likely that the Assy Auth will require successive interim reports on a regular basis as the inquiry proceeds. The Assy Auth will undoubtedly require immediate notification if the COI receives evidence suggesting an imminent risk to the safety of any operations still being conducted by the Navy.

Interim reports do not need to be formatted in a formal manner like the final report. They can be provided in any format that meets the Assy Auth’s requirements, including dot-point briefs or PowerPoint presentations.

Every interim report should address:

  • factors that have been discounted and the reasons for doing so
  • the current focus of the inquiry
  • key activities for the next period.

If necessary, the interim report may also address the adequacy of resources currently devoted to the inquiry. The ROP, however, must address all issues and reference interim reporting.

Annex A: MOU between NZDF and TAIC57

Module F: Aircraft accident inquiries

Introduction

Module F builds on the preceding sections and provides guidance on particular considerations for COIs into aircraft accidents.

Where death or serious injury occurs, this module should be read in conjunction with Module D.

Special orders apply to inquiries into aircraft accidents that must be followed. These are contained in DM 69 Vol 1, Para 11.2.19 and NZAP 201 Chapter 6.

Ideally, the COI will receive a brief from a Directorate of Air Force Safety and Health (DASH) representative at the outset of the COI, in tandem with a legal briefing. This should also address safety guidelines when accessing sites.

Module F has five parts:

Part 1: Relationship with AIC and TAIC

In the immediate aftermath of an aircraft accident, DASH will dispatch an AIT to the crash site. The AIT will be led by a qualified air accident investigator. The AIT investigation will be one of possibly several investigations that occur in tandem with the COI.

The AIT investigation does not, however, have the legal powers and protections of a COI. The AIT must make that clear to any witnesses it interviews.

It is, therefore, highly desirable that the COI is assembled expeditiously into the accident, so statutory rights and protections can be afforded to the witnesses and the evidence. This should encourage witnesses to be forthcoming, mitigate any operational impact and ensure that safety lessons are addressed.

It is also important, however, that from the outset the President of the COI closely liaises with the AIT leader, to co-ordinate the investigations and discuss the balance to be struck between the work of the AIT and that of the COI, noting the COI must collect all relevant evidence.

Consequently, ideally the first witness to be called after the COI has assembled should be the AIT leader. At his or her first appearance before the COI, after being sworn in and cautioned in the normal manner, the AIT leader should give the COI a brief on the progress of the accident investigation to date.

Subsequent to this initial call the following should occur:

Noting that the AIT may be conducting its investigation at a site that is remote from the location where the COI is sitting, the President should ensure that suitable telecommunications facilities are in place to enable the regular recall of the AIT leader through virtual means. A good method of doing this is for the COI to have a telephone with a speaker capability as part of its administrative set-up. This will allow the AIT leader to give evidence by telephone, which all members of the COI can hear and that can be recorded using a digital recording device.

As a general rule, once the AIT has completed its report, that report will be produced in evidence to the COI by the AIT leader.

If the aircraft accident involves a civil aircraft as well as a military aircraft, TAIC will be involved pursuant to the MOU between NZDF and TAIC (see Annex A). The COI will need to be familiar with the application of the MOU.

Part 2: Composition of a COI and Expert Witnesses
in an Aircraft Accident Inquiry

Notwithstanding the requirement for a Cross-Service Court where practicable, the Assy Auth is to request that the Air Component Commander nominates a member who has expertise in aircraft investigations, and it is mandatory for the President to be a qualified aircrew officer. Further, if the inquiry involves a fatal aircraft accident, the President is to be an officer not below the rank of lieutenant colonel (equivalent) unless an officer of that rank cannot be made available without delay.58

It is important, however, to recognise that the members of a COI cannot produce any the evidence on which the COI relies to make its findings. That evidence must be produced by witnesses as to fact and expert witnesses (see Section 4, Module B, Part 1 on witnesses). It follows that, where there are insufficient experts on aircraft accident investigation to provide both a member of the COI and an expert witness, the priority is to provide the expert witness.

The COI must ensure that expert witnesses are able to view or read all relevant evidence before preparing their reports and giving evidence.

In each case, the COI should consider whether it is prudent to call an external air accident investigator, additional to the AIT leader, as an expert witness, to provide expert opinion/assessment on the likely cause(s) of the accident.

Expert witnesses of this type may be sought from the TAIC, the Civil Aviation Authority of New Zealand (CAA NZ), or an allied force, providing there is no conflict of evidence and it is made clear that the evidence provided is solely for the COI and cannot be used in evidence in any other proceedings. The President should consult with the Assy Auth in advance of any such approach.

When determining an appropriate person to be called as an expert witness on the causes of aircraft accidents, the COI should take into account the following DASH guidelines as to the qualifications for such a witness.

In addition to aircraft accident investigation experts, the COI may need to call expert witnesses in a range of other disciplines. Such experts may be available within the NZDF, for example the Defence Technology Agency, or may need to be sourced externally. A non-exhaustive list of examples would include experts in:

When recording the evidence of an expert witness, it is important that an evidential foundation is laid to substantiate that witness’s expertise. An example of how such evidence might be recorded is indicated below.

WITNESS 1

Mr James Bigglesworth of Auckland, aircraft accident investigator

having been duly cautioned in accordance with DM 69 (2 ed.) Vol 1,
Chap 11, Para 11.2.40, states on oath:

I am currently employed by the Transport Accident Investigation Commission (TAIC) as a senior aircraft accident investigator. In 2009 I completed the six-week Aircraft Accident Investigation course at Cranfield University in the UK. Since then I have been employed full-time by TAIC as an aircraft accident investigator and have investigated about 20 aircraft accidents.

Prior to joining TAIC, I was a P3 Orion pilot in the Royal New Zealand Air Force. I have about 3000 hours on type.

At the request of the Court of Inquiry, I have examined all the evidence collected by the Accident Investigation Team and also by the Court itself. Based on this evidence, in my opinion...

While expert testimony can be collected by the COI, it is important that the COI ensures that it, the COI makes the findings based on all the evidence it collects, affording appropriate weight to the witness evidence as it sees fit.

Part 3: Obtaining Evidence from Overseas

There may be circumstances where a COI into an aircraft accident may need to call evidence from a person who is located overseas. An example might be the representative of a manufacturer of aircraft or aircraft parts. In such cases, it is useful to note that:

Part 4: Event Chronology, Causes and Factors

The RNZAF uses the James Reason model of organisational accidents as a framework to assess and investigate the incident or accident.60 This is a model that describes an accident in terms of a ‘trajectory’ and describes two types of failure, or condition. Active failures are those at the ‘sharp end’ of the system, in other words at the human-system interface. Their effects are immediate and relatively short-lived. They are often what, at first glance, precipitate the accident.

Latent conditions, on the other hand, may be present for many years before they combine with local circumstances and active failures to penetrate the system’s many layers of defences. They arise from supervisory, managerial and top level strategic decisions made within the organisation. However, they may also arise as a result of decisions made in agencies that have an interaction with RNZAF, for example government and related agencies, regulators, manufacturers and designers.

The role of the AIT is to investigate the accident in an effort to expose both the active and latent failures responsible for the accident.

It is recommended that an aircraft accident COI considers each step in the accident using the event chronology provided below. If the TOR for a COI constrain this in a manner that undermines the robustness of the inquiry, it may warrant a discussion between the President and the Assy Auth. As the COI examines each step in the chronology, it should identify the factors that may have a bearing on that step. A non-exhaustive list of factors is provided below.

NZAP 201 provides that once a factor has been identified, the COI is to determine which of the following categories it falls into:61

The cause(s) are the trigger(s) on the day for the resultant accident, whereas the factors are considered to be issues that collectively resulted in defensive weaknesses. If there is any doubt about whether an issue is a factor then it should be described as a probable factor or possible factor. A factor may be assessed as a probable factor by analysis of precedents, trends, or other data sources. If the COI cannot positively exclude a factor then it should be referred to as a possible factor.

Event chronology

  • Tasking
  • Squadron preparation to conduct the task, including preparation by the operations and maintenance flights
  • Specific mission planning
  • Authorisation of the task
  • Pre-flight
  • Engine start through to departure
  • En route prior to event
  • Specific circumstances immediately prior to the event
  • Event
  • Post-event actions
  • Crashworthiness62
  • Any other relevant steps.

62

Possible causative factors63

Human factors

Technical factors64

  • Training
  • Experience
  • Medical factors
  • Currency and recency
  • Competence
  • Psychological factors.
  • Design flaws
  • Maintenance record.

External factors

Organisational factors

  • Air traffic control
  • Meteorology
  • Environment/terrain
  • Bird strike
  • Other air traffic
  • Adequacy of charts and other navigational information
  • Other air traffic.
  • Command oversight
  • Supervision on the squadron
  • Orders, instructions and procedures
    • Fitness for purpose
    • Ambiguity
  • Organisational processes and pressures
  • Squadron culture.

63 64

Part 5: Interim Reporting

An aircraft accident will often raise the prospect of a technical factor that could require the grounding of all aircraft of that type pending rectification. Such a grounding may have huge implications for NZDF or other forces’ operations. It is, therefore, not surprising that aircraft accident COIs typically produce a tension between command’s need to obtain critical information as quickly as possible, and the time that is required to conduct such a complex inquiry in a thorough and responsible manner.

The solution to this tension lies in interim reporting. As soon as the COI has completed its initial planning, the President should make an appointment to speak with the Assy Auth about a timeframe for interim reporting. It is quite likely that the Assy Auth will require successive interim reports on a regular basis as the inquiry proceeds. The Assy Auth will require immediate notification if the COI receives evidence suggesting an imminent risk to the safety of any aircraft being operated by the NZDF or any other organisation operating that type of aircraft (that is, not including any type that has been grounded already).

Interim reports do not need to be formatted in a formal manner like the final report. They can be provided in any format that meets the Assy Auth’s requirements, including dot-point briefs or PowerPoint presentations.

Every interim report should address:

  • factors that have been discounted and the reasons for doing so
  • the current focus of the inquiry
  • key activities for the next period.

If necessary, the interim report may also address the adequacy of resources currently devoted to the inquiry. The ROP proceedings, however, must address all issues and reference interim reporting.

When the COI begins writing its final report, it needs to bear in mind that that report must comply with NZAP 201, Chapter 6, Annex A.65

Module G: Inquiries relating to munitions

Introduction

Module G builds on the preceding sections and provides guidance on some particular considerations for COI’s relating to munitions.

Where death or serious injury occurs this module should be read in conjunction with Module D.

Module G has four parts:

Part 1: The ATI and Expert Witnesses in an Inquiry Relating to Munitions

Notwithstanding the requirement to appoint a Cross-Service Court where practicable, it is beneficial for one or more members of a COI relating to munitions to have a sound knowledge of such munitions.

However, it is important to recognise that the members of a COI cannot produce the evidence on which the COI relies to make its findings. That evidence must be produced by witnesses as to fact and expert witnesses (see Section 4, Module B, Part 1 on witnesses). It follows that, where there are insufficient ammunition technical experts to provide both a member of the COI and an expert witness, the priority is to provide the expert witness.66

It is the COI, however, that remains responsible for making its findings—this is not the role of the expert witness.

In the immediate aftermath of an incident or accident involving munitions, SO1 Ammunition and Explosives at Defence Munitions Management Group will appoint an Ammunitions Technical Officer (ATO) or SNCO to conduct an Ammunition Technical Investigation (ATI) in respect of the particular munition or munitions. The purpose of the ATI is to determine whether that munition type and batch was and is safe for use by the NZDF. In most cases, it is likely that the ATI will be completed before the COI is able to assemble.

Therefore, the ATO or SNCO who has conducted or is conducting the ATI should be called as the first witness to provide the COI with a good starting point for its inquiry. The ATO or SNCO will be an expert witness.

In cases involving specialist munitions, such as missiles, the COI should consider whether it is prudent to call an external expert witness to examine the evidence collected by the ATI and the COI collectively, and provide an assessment of the likely cause(s) of the accident or incident.

Expert witnesses of this type may be sought from allied forces or manufacturers of munitions. When determining an appropriate person to be called as an expert witness on the causes of a munitions incident or accident, the COI should consider whether the person has appropriate qualifications and experience. For example, for an ATO or SNCO to be considered sufficiently “expert”, SO1 Ammunition and Explosives would normally require him or her to have:

The President should enable the expert witness to view or read all relevant evidence before preparing their reports and giving this evidence.

When recording the evidence of an expert witness, it is important that an evidential foundation is laid to substantiate that witness’s expertise. An example of how such evidence might be recorded is indicated below.

WITNESS 1

Captain Guy Fawkes, RNZALR of Trentham Defence Area, Ammunition Technical Officer

having been duly cautioned in accordance with DM 69 (2 ed.) Vol 1,
Chap 11, Para 11.2.40, states on oath:

I am an Ammunition Technical Officer and currently hold the appointment of SO3 Ammunition in Defence Logistics Command.

I joined the Army as a soldier in the Royal New Zealand Army Logistics Regiment (RNZALR) in ... , specialising as an ammunition technician. I completed all professional courses in the ammunition technician trade up to the rank of sergeant. In .... I was commissioned in the rank of lieutenant and successfully undertook the Ammunition Technical Officers’ Course with the British Army. Since returning to New Zealand in ...., I have been continuously employed in ammunition technical appointments, both at 1st (NZ) Explosive Ordnance Disposal Squadron and at Defence Logistics Command.

On ...., SO1 Ammunition appointed me to conduct an Ammunition Technical Investigation (ATI) into ...

At the request of the Court of Inquiry, I have re-examined the evidence collected by my ATI and examined the evidence produced to the Court. Based on this evidence, in my opinion....

Part 2: Obtaining Evidence from Overseas

If a witness required by a COI is a member of the armed forces who is deployed overseas, the witness can still be ordered to give evidence. The COI has the power to sit overseas. However, the COI may be able to receive the evidence by VTC, Skype or teleconference, provided that it can be sure that:

There may be circumstances where the COI needs to call evidence from a civilian who is located overseas. An example might be the representative of a manufacturer of specialist munitions. In such cases, while the aforementioned technology can be used to obtain the evidence, the COI cannot serve a summons on a person who is outside New Zealand and is, therefore, reliant on the witness’ cooperation.

Part 3: Event/Munition Chronologies and Causative Factors

Subject to the TOR, a COI relating to a munitions can usefully consider each step in the incident or accident using the event chronology and the relevant munition chronology provided in Section A below. The President may wish to discuss this with the Assy Auth. As the COI examines each step in the chronology, it should identify the causative factors that may have a bearing on that step. A non-exhaustive list of causative factors is provided below.

Causative factors

In conducting an inquiry into a munitions incident or accident, a COI must always bear in mind that all munitions incidents and accidents will normally fall into one of the following two categories:

The factors that may be causative of misuse or malfunction are many and varied. They include the following.

Possible causative factors67

Human factors

Technical factors68

  • Training
  • Experience
  • Currency
  • Competence
  • Psychological factors.
  • Design flaws
  • Storage procedures and inspection programmes.

External factors

Organisational factors

  • Weather, climate and humidity
  • Terrain.
  • Command oversight (for example, OIC of the activity)
  • Supervision (for example, by the Range Conducting Officer)
  • Orders, instructions and procedures:
    • Fitness for purpose
    • Ambiguity
  • Organisational processes and pressures
  • Unit culture.

67 68

Part 4: Interim Reporting

An incident or accident involving munitions will sometimes raise the prospect of a technical factor that could compel the NZDF or other forces to withdraw that munition type from service pending rectification. This may have implications for the NZDF’s ability to deliver its outputs. In most cases, a COI regarding munitions can be completed quickly. However, occasionally the complexity of the inquiry will result in tension between command’s need to obtain critical information as quickly as possible and the time that is required to conduct such an inquiry in a thorough and responsible manner.

As a reflection of this tension, COIs assembled by Army into a munitions accident or incident are required to forward their reports through normal command channels to Army General Staff (DTC), LCC and SO1 Ammunition and Explosives within 28 days of the accident or incident.69

The solution to this tension lies in interim reporting. As soon as the COI has completed its initial planning, if it is apparent that the inquiry may take longer than might be anticipated by command, the President should make an appointment to speak with the Assy Auth about a timeframe for interim reporting. It is quite likely that the Assy Auth will require successive interim reports on a regular basis as the inquiry proceeds. The Assy Auth will undoubtedly require immediate notification if the COI receives evidence suggesting an imminent risk to the safety of personnel using particular munitions.70

Even if no requirement for interim reporting is identified at the outset, the President should always consider seeking direction from the Assy Auth on this point if the inquiry starts to take longer than first thought.

The ROP proceedings must, however, ultimately address all issues and reference interim reporting.

Every interim report should address:

  • factors that have been discounted and the reasons for doing so
  • the current focus of the inquiry
  • key activities for the next period.

If necessary, the interim report may also address the adequacy of resources currently devoted to the inquiry.

The ROP however must address all issues and reference interim reporting.

Take care of the common concerns

Most COIs are conducted to a high standard. Those that weren’t were derailed by some of the areas below. They are common. It’s easy to forget a legal detail or have a piece of recording equipment breakdown. Take care with these matters and you will have a much better chance of a smooth, robust COI.

Checklist of common concerns

Planning

Conduct

Findings and writing the report

Concepts to improve your COI

1. Planning

Assy Auths and Courts are to place greater emphasis on planning at the outset of an inquiry, together with the Counsel Assisting, if appointed.

2. Timeliness

Timeliness is essential if a COI is to achieve its purpose. COIs are to be afforded a high priority, with the inquiry the principal focus, to enable them to be completed expeditiously. Before appointing suitable personnel to the Court, an Assy Auth is to assess any competing priorities, so that the Court can focus on the inquiry. Witnesses are to be made available, as a priority, as required by the Court.

3. External legal review

In those cases of an unexpected death or serious injury, any other serious incident, or incident that exposes NZDF to serious reputational risk, the Assy Auth is to consider obtaining an independent legal review from the panel of Queens Counsel appointed to the External Legal Review Panel. The matter is to be reported at the outset of the incident to the office of the JAG and DLS.

4. Transparency and Independence

Wherever it is practicable, having regard to the seriousness of the particular COI, the environment, security, and available levels of expertise, an Assy Auth is to appoint a Court comprising personnel from more than one service. All commanders are to co-operate, to facilitate cross service courts.

5. Counsel Assisting

Assy Auths are to consider appointing Counsel Assisting more frequently than simply those mandatory cases prescribed in DM 69 Chap 11. Courts are also encouraged to make greater use of Counsel Assisting from the outset of the COI, particularly in the planning and design, as well as during the COI.

An ELR is to be sought when it is considered that an independent legal assurance review of a significant COI is desirable. The ELR will consist of a review by one of the external counsel (Queens Counsel) appointed to the panel established for that purpose by the Office of the JAG.

This ELR will constitute legal advice and will be subject to legal professional privilege.

Circumstances warranting a COI report review

The circumstances warranting this review will depend upon the particular case, and will largely need to be assessed on a case-by-case basis. The following circumstances are examples of when an external review may be appropriate.

In most cases, the ELR will be conducted after the ROP has been signed by the Court, but in advance of the Assy Auth comments.

In exceptional circumstances, CDF can direct an external legal review of a draft report.

The protocol to be adopted is as follows:

1. If the Assy Auth is a Superior Commander, the first step is to notify DLS and the Executive Officer to the Judge Advocate General (EO JAG) at the time of the COI assembly that an external legal review may be sought.

2. If the Assy Auth is not a Superior Commander, the Superior Commander’s approval must be obtained prior to approaching DLS and EO JAG. The notification must include a copy of the TOR and comment on the likely security classification of the report, to assist EO JAG in identifying the most suitable external counsel panel member.

3. In cases of this type, in addition to the President’s usual obligation to keep the Assy Auth apprised of progress in the inquiry, the President is also to provide the same information to the EO JAG. This communiqué is to include an indication of the likely time frame for completion once the planning of the COI has finalised. The COI will not be bound by this indication, but every effort should be made to be as accurate as possible.

4. Any ELR will be sought after the Court has signed and forwarded its ROP to the Assy Auth for comment, but before the Assy Auth records his or her comments.

5. Before the Assy Auth seeks an ELR, however, he or she is to seek DLS advice on whether the COI ROP should be sent for ELR. If so, DLS conducts a “gross error” legal review, with any remedial action, before the Assy Auth seeks an ELR.

6. If the Assy Auth decides to proceed with an ELR, the Assy Auth is to either seek the approval of his Superior Commander to release the COI or alternatively the Superior Commander, grants approval. Any grant of approval is to be recorded.

7. The Assy Auth is to then request the EO JAG (through DLS) to obtain an ELR.

8. On receipt of the ELR, and after engagement with DLS, the Assy Auth will either record his Assy Auth comments and sign the record, or re-assemble the COI, for any remedial action, and then record and sign his final comments once the amended and completed COI is referred back to him by the President of the Court.

This protocol ensures the ELR is independent of the COI and is not actively contributing to the COI while the COI is in session and preserves the absolute integrity of both the COI and the ELR process.

If there are any substantive issues to address, however, the Court will need to be re-assembled and this will may impact on timeliness.

  1. SECTION 8 – FORMS AND LINKS

Forms

The following forms apply to COI, and are found as part of DM 69 (2 ed.) Vol 1, Chap 13,
Para 13.2.1
:

MD 634 – Order for the Assembly of a Court of Inquiry

MD 635 – Declaration by Court of Inquiry on Absence of a Member of the armed forces

MD 637 – Summons to Civilian Witness to Attend a Court of Inquiry

Format for Record of Proceedings of a Court of Inquiry – Chapter 11 Annex A

Links

MOU between WorkSafe and NZDF (see Section 5, Module D, Annex B)

MOU between TAIC and NZDF (Section 5, Module E, Annex A)

DM 69 (2nd ed.) Volume 1 and Volume 3

1 AFDA s 200S and R v Neave (1995) 1 NZCMAR 230, 248 (CMAC).

7 References: AFDA s 200N

8 References: AFDA s 102

9 References: DM 69 Vol 1, Para 11.2.19 and NZAP 201

10 References: DM 69 11.2.64 and AFDA s 200R(3)

13 References: AFDA s 200I

14 This material has been adapted from material published at mindtools.com.

18 References: AFDA s 200K(5)(6)

19 References: DM 69 Vol 1, Chap 6, Sect 4 on evidential privilege.

20 References: AFDA s 200K(1)

24 References: DM 69 Vol 1, Para 11.2.56

32 The only exception to this is where the death or serious injury occurs in a foreign State and the deployed force is operating under a Status of Forces Agreement or Arrangement which excludes local jurisdiction, or such jurisdiction is precluded under customary international law (for example, where a death occurs on board a warship alongside a foreign port). If immunity exists, it will not be waived without specific direction from CDF/COMJFNZ. However, NZDF Service Police will still have jurisdiction in such cases.

33 References: HQ JFNZ SOP 433, Paragraph 433.60.

34 References: Section 113(1) of the Coroners Act 2006.

35 References: Sections 69 and 70 of the Coroners Act 2006

37 References: See sections 19 and 20 of the Visiting Forces Act 2004

38 The NZDF has consistently taken the view that, with respect to the definition of “officer” in AFDA s 2(1), “unless the context otherwise requires” permits a foreign officer to be appointed a member of such a COI.

39 References: See DFO 3 Part 12, Chapter 8 (currently in draft).

40 References: For the application of empathy and other principles to COIs into deaths, see DFO 3 Part 12, Chapter 8 (currently in draft).

41 It is important to be alert to and sensitive to important dates for the family, including the anniversary of the death, birthdays, holidays, etc. and if possible avoid them or at least acknowledge the timing.

42 References: DFO 3 Part 12, Chapter 8 (currently in draft).

43 References: DFO 3 Part 12, Chapter 8 (currently in draft).

44 References: DFO 3 Part 12, Chapter 8 (currently in draft).

45 Contact details must be included in the relevant letterhead.

46 If the family has not identified a representative, ensure that letters are written to each of the key members of the immediate family, for example, each of the parents (where separated), partner, etc.

47 If the President sends the letter, after consulting with the Assy Auth, amend the content accordingly.

48 Identify if letters have been sent to other members of immediate family.

49 It is important to be alert to and sensitive to important dates for the family, including the anniversary of the death, birthdays, holidays, etc., and if possible avoid them or at least acknowledge the timing. The FLO can assist.

50 Contact details must be included in the relevant letterhead.

51 Note: the The Schedules are available separately on the NZDF intranet.

52 Including, for example, the Defence Technology Agency.

53 This could include, for example, an experienced officer of the Royal Marines or the USMC in an inquiry touching on the conduct of amphibious operations.

54 In this context, this consists of an assessment of the response by the ship’s safety systems following the event.

55 This list is not intended to be exhaustive; there may be other causative factors of which a COI may become aware.

56 These factors need to be examined in the context of related examples on that and other platforms

57 Note: the The Schedules are available separately on the NZDF intranet.

59 The Australian Transport Safety Bureau (ATSB) has significant capability in this area.

60 References: James Reason, Managing the Risks of Organizational Accidents (Ashgate, 1997).

61 References: NZAP 201, Chapter 6.

62 This consists of an assessment of the response by aircraft protective systems and devices following the event.

63 This list is not intended to be exhaustive; there may be other causative factors of which the COI may become aware.

64 These factors need to be examined in the context of related examples on that and other platforms.

66 References: DFO(A) Volume 2, Book 1, Part 4, Chapter 1, Section 2, Paragraph 4013b for orders specific to Army pertaining to this.

67 This list is not intended to be exhaustive; there may be other causative factors of which the COI may become aware.

68 These factors need to be examined in the context of related examples on the same or similar munitions.

69 References: DFO(A) Volume 2, Book 1, Part 4, Chapter 1, Section 2, Paragraph 4013d.

70 References: DFO(A) Volume 2, Book 1, Part 4, Chapter 1, Section 2, Paragraph 4013c also requires immediate notification to SO1 Ammunition and Explosives in such a case.

Section 2 – Overview of a court of inquiry

A COI is established to collect and report facts, NOT to determine guilt or apportion blame.

Consider this scenario

CPL Collins witnesses a truck accident at RNZAF Base Woodbourne. Collins was out late the night before with CPL McLaren, the driver of the truck.

“Oh no”, he thinks. “Am I responsible for this accident? I kept McLaren out late last night…”

A COI into the accident calls on CPL Collins as a witness. He’s nervous.

“Will I be in trouble? Should I tell them we were out late?”

In brief, the answer is that a COI is NOT a disciplinary court. It’s a fact-finding one. Potential witnesses like CPL Collins need to be assured of this.

Annex A: Cause and accountability

Annex B: Process map

Section 3 – The Role of the President

Section 4 – Courts of Inquiry

Consider this scenario

While preparing the COI for the truck accident at RNZAF Base Woodbourne, you neglect to account for schedule conflicts among some of the key witnesses. Therefore, the COI meets, but CPL Collins doesn’t show up.

Regardless of any legal right or wrong, the Court is delayed, and as media coverage around the incident continues the Defence Force is left without the ability to answer questions with facts.

Failure to plan, as they say, is planning to fail.

The importance of planning a COI inquiry cannot be over emphasised. You will need common sense and a good plan as you coordinate with external agencies and analyse the sources of evidence.

Annex B: President’s aide-mémoire for calling a witness1

1 References: DM 69 Vol 1, Para 11.2.34–11.2.39

Annex D: Example format for witness interview

Annex E: Example witness statement

Annex F: Example witness statement where a photograph is produced

Annex G: Exhibit certification of an object that has been photographed
for production as an exhibit

Exhibit G

I have certified that I have compared the exhibit with this photograph and that it is a true likeness

ABC

LTCDR, RNZN

President

  1. Section 5 – Topic-specific modules

Consider this scenario

A fire on a vessel results in the death of a sailor. His family, stricken with grief, wants to know how it happened. What caused the fire? Can action be taken to reduce risk in the future? This section deals with specific topics concerning death and serious injury, incidents involving vessels, aircraft and munitions, and the engagement with affected personnel and external agencies.

  1. Section 6 – Common Concerns in Courts of Inquiry
  1. Section 7 – External Legal Review