Corporal fined €300 over refusal to move car appeals insubordination conviction

A corporal in the Defence Forces who was fined €300 for disobeying a superior officer’s command to move his car from a space in a military barracks wants the High Court to overturn his conviction.

Cpl Mark Beatty, who was stationed at Cathal Brugha Barracks in Rathmines, Dublin, seeks an order quashing his conviction by a military judge in February 2013 of an offence of behaving in an insubordinate manner towards a superior officer at the barracks in July 2012.

It was alleged, when a lieutenant told him to move the car, he refused to do so and asked if he could have the order “in writing” and said it in a defiant, demanding and arrogant manner.

He conceded at the military hearing in 2013 as proven all of the elements of the insubordination charge and he did not require any proofs in evidence. However, as he had pleaded not guilty, the case went ahead and evidence was called.

Cpl Beatty did not give evidence and the prosecution witnesses were not cross-examined by his solicitor.

The military judge affirmed the determination of insubordination made by his commanding officer and a fine of €300 was imposed.

He subsequently sought a copy of the transcript of the digital recording of that hearing but the Courts-Martial Administrator (CMA), the military equivalent of the Courts Service, said it would first need an order from the military judge who heard the case.

Cpl Beatty then brought High Court proceedings against the military judge and Director of Military Prosecutions seeking the quashing of his conviction on grounds including the case against him did not disclose an offence known to law. He also claimed the military hearing was conducted in breach of constitutional justice and fair procedures and sought damages.

The defendants deny his claims.

Among his claims were, while he had been accused of disobeying an officer, the same officer, the lieutenant, had referred in his evidence to the military hearing to “issues” he had with Cpl Beatty.

Those issues between him and the lieutenant, it was claimed by the prosecution, were about the corporal’s car not having tax and insurance while parked in the barracks on a previous occasion.

Cpl Beatty claimed this was irrelevant and prejudicial evidence.

As part of his High Court action he sought an order that the CMA provide him with a transcript of the military hearing under a process known as third party discovery (where the third party is not a party to the case).

He argued there were a number of conflicts of fact between the parties that can only be resolved by production of the transcript.

The High Court refused his application. It said, among other things, Cpl Beatty was in error insofar as he contended it would have been inappropriate for him to seek a direction from the military judge to release the transcript because, he had claimed, this would improperly draw the judge “into the forensic fray in these proceedings”.

The High Court also said he had failed to identify any specific factual issue or controversy that required to be resolved by reference to the transcript.

He appealed that refusal and on Friday the Court of Appeal (CoA) dismissed his appeal.

Mr Justice Brian Murray, on behalf of the three-judge court, said it was clear the CMA, as well as the military prosecutor, had adopted the position that Cpl Beatty could make an application for the transcript to the military judge.

“He merely has to agree to it.” Mr Justice Murray said.

He can do so without prejudice to his view of the correct legal position. If the military judge refuses then the position will be different and further discovery of documents may become a live issue, he said.

He ought to have availed of that mechanism and is still free to do so via proposals made by the CMA, he said.

It was not proper to direct non-party discovery of documents that can be obtained by other means, he said.