JudgeO'Flaherty J.
Judgment Date27 February 1995
Neutral Citation1999 WJSC-CMAC 635
CourtCourts-Martial Appeal Court
Date27 February 1995

1999 WJSC-CMAC 635


O'Flaherty J.

O'Hanlon J.

Geoghegan J.


27th day of February, 1995 by O'Flaherty J.

O'Flaherty J.

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


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.


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.


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 of mens 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:-


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:-


a (a)the contravention (by act or omission) by any person of -


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


(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


(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.


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


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 establish the offence of conduct to the prejudice of good order and discipline. In other words, mens rea would not be an element to be considered in such a charge. Such is not the case in the section 168 charges before you and here I refer you to the British Court Martials Appeal case of R. .v. Millar 1983 in which it was held as follows: Whilst mens rea may not be an element to be considered in all forms of conduct which can be properly said to be prejudicial to good order and military discipline, it is an important consideration in others. Whether this so can be determined by the content of the particulars alleged as set out in a charge pursuant to conduct to the prejudice of good order and discipline. So I advise you that mens rea is an element to be considered in the two charges laid under section 168 before you and accordingly as a result of that I advise you that you must be satisfied beyound reasonable doubt that company quartermaster C. knew or ought to have known that his conduct in some way was a breach of discipline. In deciding this factor you are entitled to rely on your general service knowledge and on the fact that the accused is a company quartermaster sergeant with thirty years service in the Defence Forces.


One of the two charges referred to in the Judge Advocate' advice is the charge the subject matter of this appeal. In the judgment of this Court delivered by Finlay C.J. in the appeal of Buckley on the 28th July, 1993 the following passage...

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