Former soldier convicted of attempted espionage named after losing suppression bid

Jack Alexander Captein, a former New Zealand Army private convicted of attempted espionage, can now be named. The Court of Appeal refused him leave to bring a second appeal against the refusal of name suppression, in a decision released this week. The New Zealand Herald then named him for the first time.

Justice Christine French gave the court's decision. The court found it "not seriously arguable" that the public interest in open justice was outweighed by the interests in favour of keeping his name secret, the Herald reported.

The bar for a second appeal is high. Justice French said the court was "not persuaded" that any of Captein's grounds raised an issue of general principle that would justify one. "Further, we consider the merits of the proposed name suppression appeal to be weak," she said, according to the Herald.

The court had already dismissed Captein's first suppression appeal in May. On that occasion it held that the consequences of publication did not amount to extreme hardship, and that the public interest in publication outweighed the interests against it.

Captein argued that naming him would put him and his family at risk of retaliation from the foreign power he thought he was helping. He also said he would be at risk from some prisoners in a civilian prison, and that he would "unjustly face public scrutiny" without being able to reply using classified details of the covert operation that targeted him.

The court rejected the safety arguments on the evidence. Justice French said there appeared to be no evidence that the claimed risk to Captein or his family existed, and that what evidence there was pointed the other way. The court found that any risk from other prisoners could be adequately managed by the protective measures the Department of Corrections commonly uses. The Herald's report does not say whether Captein plans to ask the Supreme Court for leave to appeal.

Captein pleaded guilty in the Court Martial of New Zealand to a representative charge of attempted espionage, a charge of accessing a computer system for a dishonest purpose, and a representative charge of knowingly possessing an objectionable publication. He tried to defect and passed restricted military information to someone he believed was a foreign agent. The offending came to light after an undercover operation in December 2019. The Court Martial dismissed him from service and sentenced him in August last year to two years in a military detention facility. It also refused him permanent name suppression.

The Crown appealed that sentence.

In May, the Court of Appeal allowed the Crown's appeal. It found that a sentence of two years' military detention did not adequately reflect the seriousness of the offending and was an insufficient deterrent. It cited cases from other countries that treat general deterrence as the main aim when sentencing for espionage.

The court set a starting point of at least four years and three months' imprisonment. It called the Court Martial's discounts "generous" but left them in place. It credited the eight months Captein had already spent in military detention and arrived at an end sentence of 15 months' imprisonment.

That sentence is not yet settled. Because of a technicality in the law governing Court Martial appeals, the judgment got Captein's sentence start date wrong. The Crown has confirmed it will apply to recall the judgment and reissue it, the Herald reported. Until the court rules on that application, it isn't clear when his prison term formally began.