Company Sergeant Berigan
2001 WJSC-CMAC 296
Courts-Martial Appeal Court
COURT-MARTIAL APPEALS ACT 1983 S13
DEFENCE ACT 1954 S168(1)
CRIMINAL EVIDENCE ACT 1992 S5
CRIMINAL EVIDENCE ACT 1992 S2(1)
Military law- Evidence - Disciplinary procedure - Mens rea - Whether prejudicial material placed before court - Whether convictions safe - Criminal Evidence Act, 1992 section 5 - Courts-Martial Appeals Act, 1983 section 13 - Defence Act, 1954 (2CM/1999 - Courts-Martial Appeal Court - 1/11/01)
Company Sergeant Berigan
The appellant had been convicted by a Limited Court-Martial of three charges relating to conduct to the prejudice of good order and military discipline. The charges related to the operation of a cash account whilst serving with the United Nations Peace-Keeping Force in Cyprus. The appellant was sentenced to a severe reprimand and a fine of IR£450. There was no suggestion of dishonesty in the case. As such the main issue was the operation of a cash account without authority. The appellant relied on a number of grounds of appeal. It was contended that the trial court had improperly admitted documents into evidence without formal proof. Other grounds of appeal were advanced including one that the verdict of the Court-Martial was perverse and against the weight of evidence.
Held by the Courts-Martial Appeals Court (Mr. Justice Fennelly delivering judgment) in allowing the appeal to a limited extent. In relation to the first two charges, proof of documentary evidence was not required. The court was concerned that the nature of the third charge was unsatisfactory and the conviction in respect of this charge would not be allowed to stand. Otherwise the Court-Martial had been conducted fairly and with impartiality. The court would allow the appeal against the third charge. In view of the previous good character of the appellant throughout his entire military career the court would impose the least sanction available, namely a simple reprimand.
JUDGMENT of the Court delivered the 1st day of November, 2001 by Fennelly J.
The above-named Company Sergeant John Berigan, now retired, (hereinafter "the appellant") appeals, by virtue of section 13 of the Courts-Martial Appeals Act, 1983, against his conviction by a Limited Court-Martial held at Cathal Brugha Barracks, Dublin over seven days in March 1999 on three charges of conduct to the prejudice of good order and military discipline contrary to section 168(1) of the defence Act 1954. He was acquitted on three other charges.
The three charges were as follows:
2 "1. ..... that he, while serving as a member of the United Nations Military Police Element with the United Nations Peace-Keeping Force in Cyprus, otherwise known as UNFICYP, at Nicosia, Cyprus on or about the 21 st day of February 1998 opened a cash account Number 6416708 with the Navy Army and Air Force Institute, known as the NAFFI, in the name of M.P. Coy, U N (Cash), for the purchase of duty free goods without authority.
2. ..... that he, while serving as a member of the United Nations Military Police Element with the United Nations Peace-Keeping Force in Cyprus, otherwise known as UNFICYP, at Nicosia, Cyprus between the 21 st day of February 1998 and the 24 th day of July 1998 operated a cash account Number 6416708 with the Navy Army and Air Force Institute, known as the NAAFI, in the name of M.P. Coy, U N (cash), for the purchase of duty free goods to a total value of CY£14,897.21, approximately, without authority.
3. ..... that he, while serving as a member of the United Nations Military Police Element with the United Nations Peace-Keeping Force in Cyprus, otherwise known as UNFICYP, at Nicosia, Cyprus between the 21 st day of February 1998 and the 24 th day of July 1998 failed to account for duty free goods to a total value of CY£14,897.21 Cypriot, approximately, which he had purchase from the NAAFI on cash account Number 6401708 in the name of M P Coy U N (cash)."
The appellant was sentenced to a severe reprimand and a fine of IR£450. The conviction was promulgated on 29 th June 1999.
As is apparent from the wording of the charges, all three arise from the single activity of opening and operating over a relatively short period- February to July 1998– a cash account on behalf of a Military Police Lounge without authority. No suggestion of dishonesty enters into the matter. It was the fact of operating a cash account, without authority, when a credit account already existed equipped with a bank account and associated record keeping that was found by the Court-Martial to be prejudicial to good order and discipline.
The appellant relies on seven grounds of appeal as follows:
2 "1. The Trial Court erred in law in admitting into evidence documents without formal proof and in particular when the evidential chain concerning same had been broken rendering them wholly unreliable as proof of the contents thereof.
2. The Trial Court erred in law in failing to make any distinction between Committing Neglect to the prejudice of good order and discipline and Committing Conduct to the prejudice of good order and discipline when considering the Defence application regarding the third charge on the charge sheet.
3. The verdict of the Trial Court was perverse and against the weight of the evidence.
4. The Trial Court erred in law in failing to consider or to properly consider the requirement for proof beyond reasonable doubt of mens rea when deliberating upon a finding in regard to a charge under Section 168 of the Defence Act, 1954as amended.
5. The Trial Court erred in law and in fact in convicting the Appellant on the third charge when there was evidence that a Duty Free Sales Book had been maintained but was not secured and retained by the investigation authorities when they knew or ought to have know of its essential evidential value to the accused.
6. The Trial Court erred in law and in fact in convicting the Appellant on the first and second charges when there was sufficient evidence that he had both explicit and implicit authority to open and operate such a Cash Account.
7. The Trial Court erred in law in admitting into evidence highly prejudicial matters, which ought properly to have been excluded if fair procedures were to be afforded to the Appellant in accordance with law.
8. The Appellant reserves the right to seek to rely upon such further or other Grounds of Appeal as may become evident from the transcript of the trial proceedings when it is made available to him."
It will be helpful to summarise the evidence given at the Court-Martial. The Military Police Element had available to them a Mess facility, known as a Lounge or club at Nicosia. The Military Police were, naturally, drawn from military of the different nationalities comprising UNFICYP. The evidence also disclosed that a small number of local residents, i.e. persons of Cypriot nationality were admitted regularly to the Lounge and could buy drinks there. They were treated as honorary members.
The appellant was at the relevant time serving with the United Nations Peacekeeping Force in Cyprus. He was a member of the Military Police Corps with the position of Crime Reader. He was under the command of the Force Provost Marshal. He was the president of the committee for the Military Police lounge and was, de facto, day to day manager of the lounge with responsibility for the ordering of supplies including supplies of duty free goods, in particular, alcohol and tobacco. The rules stated that he was "to ensure that all lounge orders for stock property and other purchases were made from the approved creditors” list and authorised by himself." The Lounge was a mess facility for the Military Police element of the UNFICYP. There were two Force Provost Marshals in charge during the relevant time. On 30 th January 1998, Major James Landon, a British officer, took over from Captain Mark Browne.
The Lounge purchased supplies from the Government Supplies Institute (GSI) a Cypriot government supplier and from the Navy, Army and Air Force Institute, known as the NAAFI, a British registered company. It is only the latter which was relevant to the Court-Martial. When Major Landon took up his post, the Lounge had only one account, a credit account, numbered 64012502, with the NAAFI. Payments were made by cheque drawn on the Lounge's account with the Hellenic Bank. Cheques required the signature of the Force Provost Marshal.
Shortly, after he took up his duties, Major Landon caused a notice to be posted in the Lounge to the effect that only people entitled to buy duty free goods should be able to purchase drinks there. The background to the prosecution of the appellant and to other contemporaneous investigations was concern at excessive use of the duty free facility and the possibility that it was being abused by extension to unentitled persons.
The Court-Martial heard the evidence of Mr Tasos Argyrou, a Cypriot national, who was the manager of the NAAFI shop at Nicosia form 1 st November 1997 to September 1998. In that capacity, he became acquainted with the appellant whom he knew as the manager of the M P Lounge. In fact, however, the day to day dealings were handled by a Mr Tony Koumentou, who did not give evidence. In early February 1998, Mr Argyrou was approached by the appellant who, accompanied by Mr Koumentou, asked whether the existing account could be split. The explanation offered was that he, the appellant, wished to be able to have better control of the duty free goods he was buying. Mr Argyrou acceded to this request and the cash account 64016708, the subject-matter of the changes, was created by being given a new number on the NAAFI...
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