Decision Of Court Martial Quashed

Press, Volume CIV, Issue 30861, 21 September 1965, Page 3

Decision Of Court Martial Quashed

(New Zealand Press Association l AUCKLAND, Sept. 20. The Court Martial Appeal Court today unanimously upheld an appeal by an Army sergeant against a decision of a court martial at Papakura earlier this year.

The Court quashed the conviction and directed that a judgment and finding of acquittal be entered.

The soldier had been the victim of a youthful escapade, the Court found.

The Court, which sat in the Supreme Court at Auckland, consisted of Mr Justice Hardie Boys, Mr L. M. Inglis. S.M., and Mr H. Mitchell

The appellant was Gilbert Henry Cross, a sergeant, of the Royal New Zealand Infantry Regiment, who was represented by Mr K. L. Richardson. Mr R. A. AdamsSmith appeared for the Army.

On April 9 a court-martial at Papakura Military Camp found Cross guilty of losing war material —an F.N. rifle—by neglect. He was sentenced to forfeit two years’ seniority, to be severely reprimanded and to pay for the cost of the rifle.

Applications by Mr Richardson for leave to appeal out of time and for leave to call further witnesses were granted by the Court. Alan Richard Blackmore, aged 19, a Forest Service worker, said that in May this year he and a youth aged 14 had been convicted of stealing a rifle from the Papakura camp range workshop. RIFLE HIDDEN He said that after it was taken the rifle was hidden in some scrub nearby. Entry to the hut was gained through the fanlight window. Mr Richardson said there were three grounds of appeal. First was that the finding of the court-martial could not be supported by the evidence; second, that there was a miscarriage of justice in that there had been a misdirection regarding onus of proof, and that the new evidence heard today might have resulted in a different outcome; and third, that there was a wrong decision on a question of law.

Mr Richardson said Sergeant Cross’s commanding officer had admitted in evidence that the range hut was considered secure.

“For the court martial to have found as it did, I submit that it must have over-

looked or disregarded this evidence.” he said. “The verdict in my view is unreasonable."

On the second ground, he questioned a note in the Army Manual which said that if a I soldier did not have his arms when he should have them, he was guilty by neglect of 'losing them. He submitted that there was no onus on the accused to prove himself innocent. The burden of proof had shifted onto the accused, he said, for in the prosecution’s opening, counsel had said there was an onus on the accused to show that the rifle had not been lost by neglect. MODE OF ENTRY In view of the new evidence. he submitted that had the court martial been aware of the mode of entry. Cross would have been absolved of any inference that he had left a door or any bolts unhooked. On the last ground, Mr Richardson said that before Cross had been convicted, it would have been necessary to show that the rifle had been issued to him for military purposes.

The issue of a rifle to a soldier to enable him to take part in competition shooting (as in the case of Cross) was no more a military purpose than the issue of a pair of football boots to a soldier taking part in a combined services football match.

For the Army, Mr AdamsSmith said that in evidence Cross had admitted that he had left the rifle in the range workshop and forgotten about it for three days. Cross, on evidence, was the one who made the situation by which 1 the rifle was stolen. He submitted that at the Court Martial, there had been no misdirection by the judgeadvocate on the burden of proof. The fact that a third person took the rifle did not alter a charge of loss by neglect. The whole of the prosecution’s case, he said, was directed at the manner in which Cross went about looking after his rifle. It was slipshod and careles". The court retired just before 1 p.m. after hearing submissions from both counsel. At 3 p.m. his Honour gave the decision. VITAL EVIDENCE

The fresh evidence was vital as the weapon had been

stolen by two youths who. with nothing better to do on a Sunday afternoon, gained access through a fanlight window some 14 feet 6 inches above the ground, he said. The only proper evidence in any way suggesting neglect was that the appellant should have returned his rifle to the armoury and not have left it as he did on a shelf in the range hut, his Honour said. He said that although one witness at the court martial said rifles were forbidden to Ibe there the appellant had rio knowledge of a special directive relating to these particular rifles and standing ord ers took matters no further than was the case in any event of providing that "personnel with arms on issue will be responsible for their security."

The same witness told the court martial that in his opinion the range workshop would be a secure place of storage. "We are of the opinion that the appellant was entitled goto regard it having, over a period of five years, lost nothing from the hut and in the events that have occurred he has become the victim of a youthful escapade." he said “The evidence clearly establishes that the premises were in fact locked and it would be unsafe to allow the court martial finding to stand," he said.

“In addition,” said his Honour, “there is a serious possibility that the court martial may have wrongly viewed the onus of proof in a case of this type"