Byrne - Acting Commandant

 
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1999 WJSC-CMAC 628

Lynch J.

Moriarty J.

Smith J.

BYRNE (APPL OF)
THE COURTS-MARTIAL APPEAL COURT
AN CH ÚIRT ACHOMHAIRC ARM-CHUIRTEANNA
ACTING COMMANDANT ANTHONY BYRNE
Appellant

Citations:

DEFENCE ACTS 1954 – 1993 S131

RULES OF PROCEDURE (DEFENCE FORCES) 1954 SI 243/1954 RULE 42

Abstract:

Court martial — Appeal against conviction

The applicant was convicted of disobeying a lawful command of a superior officer contrary to s.131 of the Defence Acts 1954. The applicant had attended at a premises known as the Setanta Club when he had been ordered not to do so. The first ground of appeal were that a direction ought to have been given at the conclusion of prosecution evidence pursuant to Rule 42 of the Rules of Procedure ( Defence Forces) 1954, and that the advice of the Judge-Advocate to the Court on the application for a direction was inadequate. The court said read as a whole the advices were quite clear and meant that the Court must decide whether there was evidence on which the court could reasonably convict the accused at the time. A prima facie case which called for an answer had been shown by the evidence and it would have been perverse had a direction been ordered. Submissions were made as to the correspondence between the order as given and as conveyed and understood. The court as said there was ample evidence to entitle the court to find (a) that it was an order of a superior officer (b) the meaning of the order was conveyed adequately (c) the order was understood, as was its meaning and the fact that it was and order of a superior officer (d) that it was wilfully disobeyed, it would reject this ground of appeal. The final ground for appeal was that there was inadequacies in the instructions of the judge-advocate when summing up the case for the court. The judge-advocate had not emphasised that even if the court disbelieved the appellant’s evidence it must still be satisfied beyond a reasonable doubt that he was guilty before they could convict. The court said it would have been better if he had done so, but reading the charge of the judge-advocate as a whole, the onus of proof, the presumption of innocence and the standard of proof had been dealt with correctly. The court said that even if there was substance in this submission the court took the view that this was a case where it should apply s.18 (2) of the Courts-Martial Appeals Act 1983 which allows the court to dismiss the appeal if it considers no miscarriage of justice has occurred, even if it was of the opinion that a point raised in an appeal might be decided in favour of the appellant. The appeal was dismissed.

1

Judgment (ex-tempore) of the Court delivered on the 2nd day of November, 1998. by Lynch J.

2

This is an appeal against conviction of an offence contrary to s. 131 of the Defence Act, 1954. The conviction was recorded on the 5th February, 1998, by a general court-martial and was promulgated on the 26th May, 1998. The charge in respect of which the appellant was convicted is "disobeying a lawful command of a superior officer contrary to s. 131 of the Defence Acts, 1954to 1993, as amended, in that he at Camp Shamrock, Tibnin, Lebenon, at or about 2100 hours on the 17th day of March, 1997, being then a member of the 80th Infantry Battalion did go to the premises known as the Setanta Club having been informed by No. 0.8763 Acting Commandant Conor Fitzsimons, Adjutant of the 80th Infantry Battalion, that he (the accused) had been ordered by the Commanding Officer (No. 0.8204 Lieutenant Colonel Patrick S. O'Sullivan, Officer Commanding 80th Infantry Battalion) not to go to the said premises" (as sat out in Charge Sheet).

3

Notice of appeal against the conviction was served on 8th June, 1998. The notice of appeal contains some thirteen grounds but in substance only three main grounds were really argued before the Court.

4

First of all that a direction ought to have been...

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