Buckley v Convening Authority

• Jurisdiction: Ireland
• Judgment Date: 01 January 1998
• Date: 01 January 1998
• Docket Number: [No. 1 CM of 1993]
• Court: Courts-Martial Appeal Court

Re Gunner Buckley

Gunner Jason Buckley

Appellant

and

The Convening Authority

Respondent

[No. 1 CM of 1993]

Courts-Martial Appeal Court

Courts - Jurisdiction - Appeal from court-martial - Whether issue raised for first time on appeal should be considered by Court.

Military law - Court-martial - Whether expert evidence required to establish whether particular conduct prejudicial to good order and discipline - Defence Act, 1954 (No. 18), s.168(1), - Criminal Justice Act, 1990 (No. 16), s. 7.

Military law - Court-martial - Judge's Rules - Whether military person whose duty is to attend and subject himself to interview by military police is in equivalent position to civilian in police custody.

At 8.30 a.m. on the 16th March, 1992, the appellant was detailed by his commanding officer to make himself available for interview by the military police. The appellant was informed that an allegation that he had smoked cannabis had been made. Extracts from the statement which contained these allegations were then read to him. He was then given a copy of the statement and was permitted to read it. After reading this statement and another statement which did not implicate the appellant he said"I smoked it once in McKee Barracks." When asked by one of the investigating military policemen what he meant by it, he said, "I smoked hash." The appellant was then cautioned for the first time and made a written statement. He later retracted this statement in an interview with a superior officer and said it was not true

The sole evidence of guilt tendered to the court-martial was this written inculpatory statement though the evidence of the circumstances surrounding the taking of this statement given by the investigating military policemen was in significant conflict with the evidence given by the appellant.

The appellant was convicted by a limited court-martial.

The appellant appealed against this conviction on, inter alia,the following grounds: (i) 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; (ii) that the trial court-martial erred in refusing to make inadmissible the inculpatory statement of the appellant in that statements made by the appellant were not voluntary ones as they were made subject to threats and inducements (which was denied by the investigating military policemen), that they were made in breach of the appellant's constitutional rights and were in breach of his rights under military law and that there was a breach of r. 8 of the Judges' Rules as a reply was suggested or invited from the appellant further to an incriminating statement from a co-accused being presented to him; (iii) that the trial court-martial erred in finding 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.

At the hearing of the appeal, counsel for the appellant raised an issue which was not raised at the court-martial. It was submitted that although the appellant was attending for interview by the military police pursuant to a lawful order he was not entitled to leave and therefore for the purpose of applying the Judges' Rules to the determination of the admissibility of the inculpatory statement made, the proper legal approach by the court-martial was to treat the appellant as would be treated a person interviewed by the police in relation to a non-military crime who was in the custody of the police. That being so, under r. 3 of the Judges' Rules the appellant should not have been questioned without the usual caution being administered.

Held by the Courts-Martial Appeal Court (Finlay C.J., Carroll and Barr JJ.) in allowing the appeal, 1, 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 military policemen.

2. That it was open to the court-martial to act on the inculpatory statement made by the appellant and to find the appellant guilty on foot of that admission, even where the appellant had retracted his statement and said it was not true.

3. That it was not necessary that expert evidence be given to the effect that the conduct with which the appellant was charged amounted to conduct prejudicial to good order and discipline and that it was peculiarly a matter for a court-martial to ascertain from its own experience and knowledge of the affairs and, in particular, of the discipline required in the defence forces, as to whether any particular conduct was conduct to the prejudice of good order and discipline and that the conclusion of the court-martial in this case was not unreasonable.

4. That where an issue which was not raised at the court-martial was one of significant importance and had not been directly decided by the Court previously, the Court would consider that issue in the interests of justice.

5. That a military person, whose duty for the particular day was to attend and subject himself to interview by the military police, could not, without a breach of military discipline, remove himself from their presence was in an equivalent position to a civilian who was in custody being interviewed by the police.

• R. v. Harris-Rivett [1956] 1 Q.B. 220 considered.

6. That as it was the fact of custody which determined the obligation to caution, r. 3 of the Judges' Rules applied to the appellant's situation and the appellant should, at the commencement of the interview, have been informed that he had a right not to answer questions, notwithstanding his military duty to be present.

The People (Attorney General) v. Cummins [1972] I.R. 312 applied.

7. That whilst the court-martial, if this point had been raised before it, would still have had a discretion to admit the statement, on the facts of the case that would not have been a proper exercise of its...