Company Sergeant Berigan

 
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2001 WJSC-CMAC 296

Courts-Martial Appeal Court

Fennelly J.

Barr J.

O'Sullivan J.

2CM/99
COMPANY SERGEANT JOHN BERIGAN, RE
Company Sergeant
John Berigan
Appellant

Citations:

COURT-MARTIAL APPEALS ACT 1983 S13

DEFENCE ACT 1954 S168(1)

CRIMINAL EVIDENCE ACT 1992 S5

CRIMINAL EVIDENCE ACT 1992 S2(1)

Synopsis:

DEFENCE FORCES

Courts-Martial

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

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JUDGMENT of the Court delivered the 1st day of November, 2001 by Fennelly J.

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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.

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The three charges were as follows:

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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.

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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.

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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)."

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The appellant was sentenced to a severe reprimand and a fine of IR£450. The conviction was promulgated on 29 th June 1999.

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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.

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The appellant relies on seven grounds of appeal as follows:

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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.

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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.

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3. The verdict of the Trial Court was perverse and against the weight of the evidence.

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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.

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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.

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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.

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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.

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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."

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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...

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