TWO soldiers convicted by a court martial of stealing a heavy duty machine gun and delivering it to a warring faction while on duty in Lebanon, yesterday began an appeal against the court's decision and sentence.
They are appealing in the Courts Martial Appeal Court.
Following a 43 day court martial which concluded on February 2nd 1995, Private Dominic Finn 27th Infantry Battalion, and Private John Mulraney, HQ Company 2nd Infantry Battalion, were discharged with ignominy from the Defence Forces and sentenced to three years penal servitude. Their sentences were suspended pending the outcome of the appeal.
The soldiers were found guilty of delivering a Browning point five heavy machine gun with its tripod to warring locals on April 14th 1993, while on guard duty at a UNIFIL post.
During the trial, evidence was given by prosecution witnesses that a threat had been made by local Hizbullah members that the weapon would be stolen before it went missing in April 1993.
Mr Brendan Grogan SC, for Finn, said his client was coming to the end of his tour of duty with UNIFIL when accused of delivering the weapon. On April 13th and 14th, when the machine gun was allegedly dismantled and taken from the post both Finn and his co accused were on guard duty.
Mr Grogan submitted that while the prosecution produced considerable evidence during the trial, the only evidence implicating Finn was that which the prosecution alleged he volunteered while being interviewed by members of the military police.
He claimed statements made by Finn and Mulraney were inconsistent as to motive. Finn is alleged to have volunteered that he assisted in the theft and sale of the weapon so that his co accused could raise some money to repay a debt owed for drugs bought from locals. Mulraney was alleged to have volunteered that the weapon was stolen to get back at, his commanding officer.
Mr Grogan said all the evidence indicated that the weapon was placed in a vulnerable position.
He submitted that the trial was so fundamentally flawed as to be unjust and was not a trial in accordance with law and breached his client's constitutional rights.
The court martial had erred in law in admitting into evidence contested verbal and written statements made by the co accused in December 1993 and had refused to disclose the reasons it was doing so.
It had misdirected itself and erred in law in refusing to permit the defence to cross examine the prosecution witnesses on alleged oral and written statements.
Mr John MacMenamin SC, for Mulraney, submitted that the admissions and statements made by his client on December 21st 1993, were not voluntary and were procured as a result of oppressive questioning and threats.
The Army authorities rejected the grounds of the appeal, stating the admissions and statements made by Finn and Mulraney were voluntary and were not procured as a result of oppressive questioning or threats.
The court martial heard their evidence, saw the witnesses and made its judgment thereon. This was a fictual issue which it determined on the evidence presented to it.
It was given adequate directions by the judge advocate and produced its ruling.
The judge advocate's advice was correct and the decision of the court martial was correct. The findings and verdict of the court martial were in accordance with law and complied with the Defence Act, it was argued.
The appeal continues today.