Private faces discharge for pointing cocked and loaded rifle at colleague while 'just having a laugh', court martial hears

Private Dean Kane (aged 24), of the 27th Infantry Battalion, breached “every single safeguard that had been put in place” around lethal weapons, which had been "drilled into him" throughout his training and year of service, lawyers for the Director of Military Prosecutions told the Court of Appeal today.

Pte Kane had pleaded guilty at a summary Court Martial in McKee Barracks to three counts of negligent performance of duty and one count of committing conduct prejudiced to good order at the military compound in Portlaoise Prison, where he had been stationed, in October 2016.

The charges were that Pte Kane loaded a Steyr automatic rifle with a magazine containing 30 rounds of ammunition, that he ‘cocked’ the loaded Steyr thereby chambering a round in the rifle, that he pointed the loaded and cocked Steyr in the vicinity of another private and that he made a false statement to a Corporal in relation to the matter.

He was sentenced to be discharged from the Defence Forces by order of the military judge in March 2018.

Pte Kane sought to appeal against the severity of his punishment in the Court of Appeal today.

However, the three-judge court found no error in the military judge’s “impeccable” approach to sentencing nor decision.

Giving judgment in the Court of Appeal, sitting as the Court of (Military) Appeal, Mr Justice John Hedigan said Private Kane enlisted in the Defence Forces in August 2015 and “passed out” at Aiken Barracks that December.

On October 15, 2016, Pte Kane was on duty in Portlaoise Prison when he was issued with a Steyr automatic rifle and magazine containing 30 rounds of ammunition.

Mr Justice Hedigan said Pte Kane and another private were “joking” around and slagging each other in their bedroom while another private was present.

Pte Kane loaded his rifle with the magazine, cocked it, causing a round to go forward in the chamber, and pointed it in the vicinity of his fellow soldier.

This private stated that Pte Kane was not angry or volatile and that he did not feel threatened at any stage.

Private Kane, who was only in the Defence Forces a year, immediately showed remorse by saying it was a stupid thing to do.

He thought it was “funny”, that they were “just having a laugh” and “messing” until he realised the seriousness of the situation.

On hearing of what happened, a Corporal confronted him. Pte Kane initially told the Corporal that there was no magazine in the rifle.

However, when he was “paraded” in relation to the incident, Pte Kane confirmed what had happened. He acknowledged his mistake and apologised.

Counsel for the Director of Military Prosecutions, Remy Farrell SC, said misuse of firearms was an issue of “fundamental importance” in the armed services.

Mr Farrell said most people will go through their entire military careers without ever having pointed a weapon at somebody.

Describing the process, Mr Farrell said soldiers are given the guns then the magazines which contain ammo.

He said the weapons could only be loaded under direct authority in front of an officer. Before that is done, the weapon is checked to make sure there is not a round in the breach. The order is given to put the magazine in. It is then checked again.

Mr Farrell said the cocking of the gun, or putting a round into the chamber, can only be done where the order is given in express terms or where circumstances arise.

For example, there were standing orders in the event a helicoptor approached Portlaoise Prison, violating airspace for, perhaps, a break-out attempt. But even that was “highly, highly regulated”.

It was the same for pointing a weapon at or in the vicinity of another person.

He said Pte Kane breached every single safeguard that had been put in place in respect of these weapons, which had been drilled into him throughout his entire training and a year of service.

Mr Justice Hedigan said Pte Kane was a father who lived with his partner at his mother’s house in Dublin. He completed the Leaving Cert in 2012 and worked in McDonald’s before joining the Army.

Mr Justice Hedigan said the military judge’s approach to the sentencing process was “impeccable”.

He had observed that the primary function of military justice was the maintenance of discipline.

The efficiency and effectiveness of the Defence Forces depended to a large extent on persons acting in a disciplined manner and ensuring conduct does not fall below standards which are often higher than those of civilian society.

The military judge had said the offences were at the higher end of the scale of seriousness because they involved conduct which flew in the face of basic training and safety procedures in relation to the loading and cocking of weapons.

These had been emphasised repeatedly throughout training and service.

Mr Justice Hedigan, who sat with Mr Justice Alan Mahon and Mr Justice John Edwards, said the decision of the military court was based upon the very serious breach of the rules governing the security of lethal weapons.

He said the Court of Appeal could find no error in principle and could not intervene.