C(Re)

 
FREE EXCERPT

1999 WJSC-CMAC 635

THE COURTS-MARTIAL APPEAL COURT

O'Flaherty J.

O'Hanlon J.

Geoghegan J.

3CM/94
C(IN RE)
IN THE MATTER OF:C.
Appellant
1

Judgment of the Court delivered on the 27th day of February, 1995 by O'Flaherty J.

O'Flaherty J.
2

This is an appeal brought in respect of a conviction of the appellant by a Court Martial in respect of the following charge:-

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Committing conduct to the prejudice of good order and discipline contrary to section 168(1) Defence Acts,1954–1990as amended by section 7 Criminal Justice Act,1990in that he at Swords in the County of Dublin on or about the 12th day of February, 1993 did engage in homosexual conduct with a male member of his unit who was is inferior in rank.

4

The appellant was a company quartermaster sergeant attached to the Army School of Music whereas the member of the Defence Forces with whom he had engaged in sexual activities was an ordinary bandsman of the rank of two star private. They were both members of the same unit.

5

The notice of appeal contains a large number of grounds of appeal but at the hearing before this Court the primary ground pursued was an alleged absence ofmens rea. It was argued on behalf of the appellant that the appellant could not reasonably have been expected to know that the relevant conduct in his case could be regarded as being to the prejudice of good order and discipline and that being so, that there was an absence of the necessary mens rea. Section 168(1) of the Defence Act, 1954reads as follows:-

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Every person subject to military law who commits any act, conduct, disorder or neglect to the prejudice of good order and discipline is guilty of an offence against military law and shall, on conviction by Court Martial, be liable, if an officer, to suffer dismissal from the Defence Forces or any less punishment awardable by a Court Martial and, if a man, to suffer imprisonment or any less punishment awardable by a Court Martial.

Subsection (3) of the same section reads:-
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a (a)the contravention (by act or omission) by any person of -

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(i) any of the provisions of this Act, or

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(ii) any regulations, orders or instructions published for the general information and guidance of that portion of the Defence Forces to which that person belongs or to which he is attached, or

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(iii) any general garrison, unit, station, standing or local orders is an act, conduct, disorder or neglect to the prejudice of good order and discipline.

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In relation to themens rea the Judge Advocate gave the following advice tothe Courts Martial.

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Accordingly if a charge under section 168 alleges the contravention of any order,regulation or instruction referred to in sub-paragraph (3) that I have just read, all the prosecution have to do is to prove the order and the contravention of it to...

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