Private Finn & Mulraney v The Convening Authority

 
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1998 WJSC-CMAC 7037

THE COURTS-MARTIAL APPEAL COURT

O'Flaherty J,

Laffoy J.,

Moriarty J.,

2cm & 3cm/1995
PRIVATE FINN & MULRANEY v. THE CONVENING AUTHORITY
BETWEEN/
PRIVATE DOMINIC FINN

AND

PRIVATE JOHN MULRANEY
Appellants

AND

THE CONVENING AUTHORITY
Respondent

Citations:

AG, PEOPLE V AINSCOUGH 1960 IR 136

DPP, PEOPLE V CONROY 1986 IR 460

DPP, PEOPLE V QUILLIGAN 1993 2 IR 305

Words & Phrases:

CEF

Subject Headings:

*

1

Judgment of the Court delivered on the 11th day of June, 1996, by O'Flaherty J.

2

The appellants were convicted after a 43 day trial at a general Court Martial, which was held at Collins Barracks, Dublin, on dates between the 6th October, 1994 and the 2nd February, 1995, on a number of charges. Both were convicted of treacherously or unjustifiably delivering up a machine gun to an unauthorised person or persons on or about the 14th April, 1993; as well as stealing the said property. Private Mulraney was convicted on three charges of committing conduct to the prejudice of good order and discipline which, in summary, involved that he had given a false description of where his co-accused had been at a particular time and, similarly, his co-accused, Private Finn was convicted on two charges which alleged that he had given a false account of his whereabouts at a particular time.

3

On conviction, the appellants were each sentenced to be discharged with ignominy from the Defence Forces, as well as to penal servitude for three years. The convictions and sentences were confirmed on the 16th June, 1995. On the 26th June, 1995, this Court suspended the sentences pending the disposal of the appeal.

4

The background to the case is as follows. In April, 1993, both appellants were members of the Defence Forces serving in an army infantry battalion in UN service close to what is known as the Israeli Security Zone near the border between the State of Israel and the State of Lebanon. They were serving in a post which was garrisoned by about 19 men of all ranks with a captain in charge, and the post consisted of a compound in the village of Ayta-Az-Zutt. There was a surrounding perimeter fence and inside this there was basic sleeping and cooking accommodation. The appellants were on sentry duty on the night of the 13th-14th April, 1993 and their duties included the protection of the post and its equipment and personnel. While on duty the appellants would normally be on an elevated position close to the surrounding compound perimeter and at the far end, in a special position, was a heavy machine gun and tripod which was of a half inch calibre and which is referred to throughout the trial as "the .5". In the early hours of the morning 14th April a report was made by the appellants that the machine gun and tripod were missing. The facts established that during their tour of duty the machine gun was taken from inside the compound out of the control of the Defence Forces.

5

An investigation was conducted which included many interviews with the appellants by the military investigators. Private Finn made six exculpatory statements on the 14th April (2), 17th April, 18th April, 30th April and 20th December. Private Mulraney made four exculpatory statements on the 14th April, 17th April, 10th November and 20th December.

6

Then Private Mulraney made an inculpatory statement on the 21st December and Private Finn did likewise on the 22nd December, though it is right to say that their accounts as to circumstances surrounding the misappropriation of the machine gun differed in certain important respects. In particular according to the statements that they allegedly made, Finn said that he had been complicit in the deed so as to discharge some debt that Mulraney owed a local inhabitant and Mulraney made a point that he wanted to bring some form of retribution on the company commander of the post.

7

The admissibility of each statement was strongly contested on behalf of each accused at the trial. It is not necessary to review the evidence in this regard except to say that each accused asserted that threats and inducements were made and that circumstances of oppression existed that would have rendered the respective statements inadmissible on the basis that it had not been proved that each statement was made voluntarily. The prosecution position was, of course, a denial of these allegations. In each case, after careful directions by the Judge Advocate, the Court...

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