Convening Authority v Doyle

• Jurisdiction: Ireland
• Judge: O'Flaherty J.
• Judgment Date: 26 January 1996
• Neutral Citation: 1996 WJSC-SC 2912
• Date: 26 January 1996
• Court: Supreme Court
• Docket Number: 4CM/95

1996 WJSC-SC 2912

O'Flaherty J.

Flood J.

McCracken J.

4CM/95

CONVENING AUTHORITY v. DOYLE

AN CHUIRT ACHOMHAIRC ARM-CHUIRTEANNA

THE COURTS MARTIAL APPEAL COURT

THE CONVENING AUTHORITY

Respondent

AND

PRIVATE WILLIAM DOYLE

Appellant

Words & Phrases:

CF

Subject Headings:

*

O'Flaherty J.

1 Private William Doyle was convicted of the offence of deserting the Defence Forces, contrary to s. 135 of the Defence Act,1954, before a limited Court Martial which was held on the 17th August, 1995, at Collins Barracks, Dublin. He was discharged from the Defence Forces.

2 He appeals to this Court and has, by his counsel, advanced a single point concerning the judge advocate's summing up on the burden of proof.

3 The background facts to the case were not in dispute and are as follows. The appellant was absent from his unit from the 5th March, 1983 and remained absent until the 27th June, 1995 — over 12 years. He said that he always intended returning to his unit and never formed an intention of not returning. He said that he had drink problems and felt that he was being "persecuted" by his superior officers at the time that he left. He joined the French Foreign Legion where he had a stint of five years. He also detailed various jobs that he had worked at in England; his course of rehabilitation from his addiction to drink and the fact that on his return to the Defence Forces he was pronounced to be in good mental order.

4 Section 135 of the Defence Act,1954provides:-

5 (1) Every person subject to military law who deserts or attempts to desert the Defence Forces is guilty of an offence against military law....

6 Sub-section (2)(iii) provides that for the purposes of the Act the person deserts the Defence Forces:-

"If he absents himself without due authority from his unit or formation or from the place where his duty requires him to be, with the intention of not returning to that unit, formation or place".

7 Paragraph (b) of sub-sect. 2 provides:-

"For the purposes of paragraph (a) of this subsection, a person who has been absent without authority for a continuous period of six months or more shall, unless the contrary is proved, be presumed to have had the intention of not returning to his unit or formation or the place where his duty requires him to be."

8 When the judge advocate came to sum up, he duly referred to the ingredients of the offence of desertion. He dealt with the presumption contained in paragraph (b), quoted above, as follows:-

"A presumption — a statutory presumption has been raised that the...