The hearing is at Devonport Navy Base in Auckland. Photo: RNZ

A senior navy officer is facing a court martial over their behaviour during an operation in Fiji in March 2023, where they allegedly encouraged a junior officer to kiss them.

The hearing is sitting at the Devonport Navy Base in Auckland.

The senior officer has pleaded not guilty for doing an act likely to prejudice service discipline.

Judge William Hastings has declined an application for interim name suppression, saying that the threshold for extreme hardship for the defendant and undue hardship for their family members hasn't been met.

However, the defendant's name cannot be published yet pending an appeal.

A military panel of three senior NZDF officers are sitting on the case, acting in a similar capacity as a civilian jury would, and will be determining the verdict and penalty.

A former junior officer, called as the first and only witness for prosecution, told the court that the interaction happened on the night when the ship docked at a port in Fiji, when he'd just joined the same New Zealand Navy ship that the senior officer worked on.

He said officers on the ship, including himself, were given leave for a few days, and had headed to the town to look for a bar to socialise at and have drinks.

He said many of the officers had already had drinks on the ship before hitting the bar in the early evening.

Judge William Hastings presiding over the trial of a senior Navy officer, for their conduct during an overseas operation in Fiji in 2023.  Photo: RNZ/Lucy Xia

The officer said he was standing outside a bar with another junior officer when they heard the senior officer tapping on a glass pane and pressing their lips to the glass to gesture for a kiss.

He said his colleague obliged and kissed the glass pane.

He said the senior officer then gestured with their hand for them to come inside the bar, and tapped their own cheek.

The former junior officer said he then went inside the bar kissed them on the cheek, believing that that was the expectation, and also based on how the other junior officer had acted.

He said the senior officer responded with a "small celebratory cheer and laugh" after the kiss, and that they didn't have more interactions later that night.

The officer said the number of staff from the ship's company at the bar at the time outnumbered the number of civilians at the bar on the night.

He told the court he didn't make a complaint at the time because he thought it wouldn't go anywhere, and was worried it would affect his career, as he was trying to obtain a qualification through his experience on the ship.

The officer was approached by military police about the matter in August 2024.

When asked by the accused's lawyer Matthew Hague if he told the truth to the military police, the officer said he "downplayed" the matter at the time didn't tell the full truth when he first spoke to the military police, saying he felt "ambushed" by them and that we was focused on getting his qualifications.

The officer said he was worried about future retribution after speaking out, and had seen how other people on the ship were treated after they got on the bad side of the senior officer.

He said there was "absolutely" something wrong with the interaction, but had compartmentalized the matter at the time.

"I had justified that in my own brain, to regain some control of the situation so I didn't feel as powerless " he said.

The officer was also pressed by Hague on his retracting previous evidence he gave about a cocktail party he thought had happened on the night of the interaction, but later realised he'd gotten it mixed up with another party.

The officer said he'd spent about seven months on the ship, and had obtained his qualification after his time on board.

When asked by a lawyer for the New Zealand Defence Force, Sam McMullen, how intoxicated he was on a scale of 0 to 10 (0 being sober) on that night, the officer said he was about 4-6 when he arrived at the bar, and about "6 gusting 7" when he left the bar in the early hours of the morning.

When asked by the accused's lawyer Matthew Hague whether drinking affected his memory of the night, the officer said "I'd say so, for parts of the evening", but maintained that he remembered clearly about the interaction with the senior officer.

"That was a relatively shocking thing to see, it's something that I will remember quite accurately for a very long time.

"I do agree that the passage of time has left a lot of [unclear word] around the edges, but that event stuck with and will stick with me," he said.

When asked by Hague whether there was anything sexual about the interaction, the officer said "I don't think there was".

Asked about other interactions with the senior officer, the officer said he had been reprimanded by the senior officer relating to how he wore his uniform.

The accused senior officer took the witness stand on Monday afternoon, saying they did not encourage a former junior officer to kiss them.

During questioning by their own lawyer about the night of the alleged interaction, the senior officer said the junior officer was "dancing in an exuberant manner" while having drinks on the ship and was excited.

They also described him as "quite out of the box".

They said the night was "fun and happy" and that they didn't drink much at the bar, but did have a couple of glasses of Fiji Gold.

Asked if they'd encouraged the junior officer to kiss them on the cheek, they said "No, I didn't".

When asked about their level of intoxication upon arriving at the bar by Hague, the senior officer said about 2, on a scale of 0 to 10, with 0 being sober.

Asked about the former junior officer's evidence about the interaction, the senior officer said "he may have come in and said hello to me".

At a later point during cross-examination by NZDF's lawyer McMullen, the senior officer said "I can't recall seeing [name of junior officer] at the bar at all".

When Hague asked about the allegation of the kiss on the cheek, the senior officer said "If he came and kissed me on the cheek, it wouldn't have seemed out of ordinary, people kiss me on the cheek every day".

Asked whether there are certain circumstances where a kiss on the cheek wouldn't be appropriate, the senior officer said - "perhaps a formal occasion", and added that she'd had people greet them like that when they've promoted them, where they'd salute them and greet them with a kiss.

Under cross-examination by NZDF's lawyer McMullen, the senior officer was asked about their thoughts on the allegation of gesturing for a kiss through the glass pane and if that's something they do on a daily basis, the senior officer said "It's something I never do, I didn't encourage someone to kiss me through a pane of glass".

Asked by McMullen if they knew conduct of that type can have a tendency to prejudice service discipline, the senior officer said "it would if it happened".

Following the senior officer's evidence, Judge Hastings asked if any members of the military panel had any questions.

One officer asked what the senior officer meant when they described the former junior officer as "exuberant".

The senior officer said most junior officers would find their way on the ship before they express a large personality, but they felt this officer "came in hard" - and referred to an instance when they wore their military dog tag underneath when dressed in ordinary clothes, which goes against the rules.

But the senior officer added that the former junior officer eventually became a very good officer - "He was trustworthy, he grew up," they said.

The defence also called another witness, who was an navy officer who said they were with the senior officer during the "majority" of the night of the alleged interaction.

The officer described the senior officer as friendly, professional, full of energy, and genuinely interested in people.

Under questioning by the accused's lawyer Hague, the officer said the senior officer had 1 to 2 drinks before moving to the bar, and was about 4 to 5 out of 10 in their level of intoxication by the end of the night.

The officer said they themselves had about 5 to 6 Fiji Gold beers and was about 5 to 6 out of 10 in their level of intoxication by the end of the night.

The officer said they were with the senior officer most of the night, and "can't remember" seeing the senior officer interacting with the former junior officer.

In the prosecution's closing address, McMullen told the panel of senior officers that their most important question was the credibility of the former junior officer and the senior officer.

He said the former junior officer had made honest concessions about the night - including the being intoxicated, the effect of the passage of time on his memory - such as getting the cocktail party date wrong.

McMullen asked the panel to consider whether the senior officer was credible when they could remember details of what happened on the night, but couldn't remember anything about the alleged interaction.

In defence's closing address, Hague claimed that the junior officer had lied to military investigators when they first approached them, saying that being visited by investigators isn't being "ambushed" , and that that's no reason to lie about an allegation.

He also pointed to the junior officer's intoxication on the night.

Hague said the officer who gave evidence about being with the senior officer for the majority of the night and not seeing them interact with the junior officer gives helpful evidence.

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