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A Christchurch soldier has been found guilty of filming a woman during sex without her consent by a panel of fellow military officers. 

Corporal Manu Anthony Smith will be sentenced this afternoon in the final session of his court martial proceedings at Burnham Military Camp. 

Smith, 41, was accused of filming a woman – an ex-partner – without her knowledge or consent while they were engaging in sexual activity. 

After filming the woman, Smith sent her the footage via social media. 

Smith admitted to making and sending the recording but has denied the charge. 

His defence was that the woman consented, or he genuinely believed she was consenting at the time. 

The court martial began on Monday before Judge Tom Gilbert and a panel of three military members. 

They deliberated for an hour and 53 minutes before indicating they had reached a unanimous verdict. 

They found Smith guilty on one charge of “intentionally or recklessly” making an intimate visual recording of a woman – a civil offence that contravenes the Armed Forces Disciplinary Act 1971. 

Judge Gilbert has adjourned for a lunch break to allow the parties to prepare for sentencing. 

Smith will learn his punishment at 12.45pm. 

Judge Tom Gilbert. Photo / Pool 

He was originally facing three charges; however, two of those were dropped during the trial. 

A court martial is a military court that tries members of the armed forces for violations of military law. 

It is a structured legal process, similar to a civilian court, and a decision on guilt or innocence is made by a panel of military members – three in Smith’s case. 

If a defendant is found guilty, punishments can include fines, demotions or imprisonment. 

After both women gave evidence on Monday, Smith’s lawyer made an application to the court to dismiss two of the charges. 

Judge Gilbert granted that request, saying, in light of the evidence, a properly directed panel could not reasonably convict on those charges. 

The panel had still decide on the remaining charge, relating to one woman. 

This morning, Judge Gilbert summed up the prosecution and defence cases and explained to the panel members the process they should follow to reach a verdict. 

To convict Smith, he said, the panel had to be unanimous. 

“It’s for you to decide what evidence you will accept or reject and what weight you will give it,” the judge directed. 

“You must come to your decision solely upon the evidence put before you in this court. 

“The starting point in any trial is the presumption. Corporal Smith is innocent unless and until the Crown case is proved. The onus of proof is on the Crown from the beginning to the end of the trial. He does not have to prove anything. 

Corporal Manu Smith is accused of filming a woman without her consent during sex. Photo / Pool 

“The Crown must prove that Corporal Smith is guilty beyond reasonable doubt. There is a very high standard of proof which the Crown will have met only if at the end of this case you are sure that he is guilty. 

“It is not enough for the Crown to persuade you that he is probably guilty – or even very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events, and the Crown does not have to do that. 

“A reasonable doubt is an honest and reasonable uncertainty left in your mind about Corporal Smith after you have given careful and impartial consideration. In summary, if, after careful and impartial consideration of the evidence, you are sure that he is guilty of the charge, you must find him guilty ... if you are not sure that he is guilty, you must find him not guilty.” 

The Crown said that while the complainant was angry at Smith and had “vented” about him significantly in a group chat with other women, she was a credible and reliable witness. 

Judge Gilbert said the panel must reach their verdict “uninfluenced by feelings of prejudice or sympathy”. 

“There is plenty of scope for feelings like this in these sorts of cases,” he said. 

“You may feel sorry for the women who gave evidence – or indeed, Corporal Smith – who have all had their private lives placed on display. 

“Conversely, you might hold negative views about any or all of them. You might, for example, not approve of aspects of their lifestyle or their sexuality. 

“You are entitled to those feelings, whatever they might be, but they won’t help you decide whether Corporal Smith is guilty of the charge that he faces. 

“From this evidence, you might well have got a dim view of how Corporal Smith was running his private life around 2020. I need to be really clear, though, that this is a court of law ... he is not guilty because he treated women poorly or acted immorally. 

“You cannot find him guilty because you don’t like him or you don’t like the way he behaved.” 

The Crown prosecutor, Captain John Whitcombe. Photo / Pool 

The Crown prosecutor, Captain John Whitcombe, submitted that Smith was “evasive” in answering questions about his relationship with the woman and whether he was involved with anyone else during that time. 

His “lack of openness” should “flavour” the panel’s assessment of him, Whitcombe posited. 

“The Crown says that the charge is proven beyond reasonable doubt and asks you to find Corporal Smith guilty,” the judge said. 

“The defence ... say that [the woman] did consent to the recording ... that Corporal Smith’s evidence was credible, that he answered questions forthrightly in an uncomfortable situation and talking about uncomfortable issues.” 

The defence said that the complainant had “a strong dislike” for Smith and colluded with other women to exact revenge on him. 

“That context of strong dislike and collusion provides the backdrop for this complaint by a woman who expressly stated that she wanted to make [Smith] hurt the same way he hurt her. 

“Mr Hague submitted that this must raise real doubts,” said Judge Gilbert. 

“He also talked about Corporal Smith’s state of mind ... he commented that consent in relationships isn’t always the subject of explicit discussion. 

“One thing can lead to another, and consent can be nonverbal and depend on contextual factors in the relationship. He submits that the background, including the exchange of explicit videos and photos between the pair, is relevant to his state of mind.” 

Defence lawyer Matthew Hague. Photo / Pool 

The judge said ultimately, it was up to the panel to make a decision on Smith. 

“Remember that the verdict that you reach must be one that you all agree upon, whether it be guilty or not guilty,” he said. 

The panel retired to deliberate at 9.46am. 

Yesterday, Smith gave evidence, explaining why he took his phone out during sex and started recording the woman. 

Smith described his actions as a way of expressing intimacy. 

He claimed the woman had seen that he was filming on his phone and did nothing to indicate she wanted him to stop filming. 

Further, he told the court he and the woman had discussed filming sexual encounters while discussing their sexual likes and dislikes, and he believed she was open to it. 

Smith said he believed he had consent to record – and if the woman had asked him to stop, he would have. 

“There was no black and white, no written agreement,” he told the court. 

“It was a circle of trust, it should have been.” 

Anna Leask is a senior journalist who covers national crime and justice. She joined the Herald in 2008 and has worked as a journalist for 19 years with a particular focus on family and gender-based violence, child abuse, sexual violence, homicides, mental health and youth crime. She writes, hosts and produces the award-winning podcast A Moment In Crime, released monthly on nzherald.co.nz.