Buckley, Re Gunner
2000 WJSC-CMAC 379
COURT-MARTRIAL APPEAL COURT
DEFENCE ACTS 1954 - 87 S168(1)
CRIMINAL JUSTICE ACT 1990 S7
JUDGES RULES r8
JUDGES RULES r3
REGINA V HARRIS-RIVETT
AG, PEOPLE V CUMMINS
MCALEAVEY, APPL OF UNREP CMAC 27.3.84
This is an appeal by Gunner Jason Buckley against a conviction by a limited court-martial held on the 4th June 1992, which was promulgated on the 5th February 1993, whereby he was convicted of the following offence:
"Committing conduct to the prejudice of good order and discipline contrary to section 168(1) Defence Acts1954-87, as amended by section 7 of the Criminal Justice Act1990in that he at McKee Barracks Dublin at a date unknown between the 1st day of July 1991 and the 31st day of July 1991 did smoke cannabis resin."
In respect of that offence the Appellant was fined £100 and suffered a severe reprimand.
The grounds of the appeal as set out in the notice were as follows:
i "(i) That the trial court-martial erred in law and in fact in finding the Appellant guilty of the offence charged.
(ii) That the trial court-martial erred in relying solely upon the uncorroborated inculpatory statement of the Appellant, which the Appellant subsequently retracted, when it was unsafe and unjust so to do.
(iii) That the trial court-marial erred in refusing to make inadmissible the inculpatory statement of the Appellant.
(iv) That the trial court-martial erred in finding as a matter of fact that the cannabis allegedly smoked by the Appellant was in fact cannabis and/or cannabis resin.
(v) That the trial court-martial erred in finding that the alleged conduct of the Appellant was conduct to the prejudice of good order and discipline in the absence of any evidence that the alleged conduct was to the prejudice of good order and discipline."
The sole evidence of guilt tendered to the Court-Martial against the Appellant was a written statement alleged to be signed by the Appellant and made to Sergeant Treacy and Company Sergeant Gaffney of the Military Police in the following terms:
"Some time in July last year I smoked hash with Gunner Daly of my unit, in our room which is Room 30 in F Block, McKee Barracks. Gunner Forrester or Gunner Holmes were not present. This only happened once. I got the joint off Gunner Daly. Gunner Daly did not force it on me, I just tried it to see what it is like and I did not like it. I had not smoked it before and I have not smoked it since as I am heavy into fitness and keeping my body in shape. On the day that we smoked the hash, by hash I mean cannabis, both of us had arranged it to see what it was like, but I do not know where Gunner Daly got the hash from. That's it."
In brief, the evidence at the Court-Martial of the circumstances surrounding the taking of this statement given by Sergeant Treacy and Company Sergeant Gaffney was in significant conflict with the evidence given by the Appellant.
This Court is satisfied that it was open to the Court-Martial to accept as evidence establishing the facts beyond a reasonable doubt, the evidence given by the two investigating members of the Military Police and that this appeal must be determined based on that presumed acceptance of their evidence.
That evidence, summarised, is as follows. At 8.30 on the morning of the 16th March 1992 the Appellant together with two other gunners in his company were detailed by the commanding officer to make themselves available for interview by the military police. Between 8.30 and 10 o'clock in the morning, approximately, the military police concerned searched the property, clothes and quarters of the three persons for drugs. They had been informed prior to that search that the police were investigating their possession of drugs.
At about 10 o'clock they were then brought to Collins Barracks where the headquarters of the military police in Dublin is and, on the evidence, the Appellant was left in an office in the barracks whilst the two military policemen interviewed the other two persons who had been brought there with him. He was given the opportunity to have lunch, and at approximately 3 o'clock was brought to a room to be interviewed by the two sergeants, Treacy and Gaffney. He was informed that an allegation that that he had smoked hash or cannabis the previous summer had been made by a companion of his at that time, Gunner Daly, and extracts from the statement of Gunner Daly were read to him. He was then given a copy of that statement, at his request, and permitted to read it. He was also given a copy of a statement by Gunner Forrester and was permitted to read it. The statement of Gunner Forrester did not implicate him in any offence. After reading these statements, that of Gunner Daly, it is alleged, on two occasions, the evidence was that the Appellant spoke as follows:
"I smoked it once in McKee Barracks."
He was then asked by Sergeant Treacy what he meant byit, and he said: "I smoked hash." On the evidence of Sergeant Treacy, he was then for the first time cautioned and made the statement which is set out at the commencement of this judgment. With regard to the grounds of appeal which have been put forward the Court has reached the following decisions.
That the trial court-martial erred in law and in fact in finding the Appellant guilty of the offence charged is not a separate ground of appeal, but merely the general assertion which is said to be supported by the separate grounds.
That the court-marial erred in relying solely on the uncorroborated inculpatory statement of the Appellant, which the Appellant subsequently retracted. It is correct to say that evidence was given that approximately a month after the interview on the 16th March the Appellant retracted in an interview by a superior officer the statement and said it was not true. Notwithstanding this evidence, this Court is satisfied that it was open to the court-martial to act on the inculpatory statement which was tendered to it and to find the Appellant guilty on foot of that admission. It is clear that the Judge Advocate reminded the court-martial that there was no other evidence against the accused and, in particular, on the accused's behalf by the defending solicitor and in the course of the trial it became clear that Gunner Daly was not a witness, he being the person who had made the allegation. This ground must, therefore, fail.
That the court-martial erred in finding that the cannabis allegedly smoked was in fact cannabis and/or cannabis resin. The Court is satisfied there is no substance in this submission. On the evidence tendered by the prosecution witnesses and in the form of the written statement signed by the Appellant, it is quite clear that references to hash are in fact references to cannabis, and that he understood the word accordingly. No point was raised at any time during the trial as to the possibility of the substance known as hash being otherwise than cannabis resin, and in these circumstances, this ingredient in the offence was clearly properly established once the Court accepted the statement and evidence for the prosecution.
In the course of his directions the Judge-Advocate pointed out to the court-martial what the concept of the offence of conduct to the prejudice of good order and discipline was. The submission made on foot of this ground of appeal was to the effect that expert evidence, by an army officer, presumably, should have been given to the effect that the smoking of a proscribed drug, proscribed by civil criminal law, was conduct to the prejudice of good order and discipline. In the view of the Court such...
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