Convening Authority v Doyle

• Jurisdiction: Ireland
• Court: Courts-Martial Appeal Court
• Judgment Date: 01 January 1996
• Date: 01 January 1996

(C.M.A.C.)

Convening Authority

and

Doyle

- Court-martial - Evidence -Burden of proof - Desertion - Statutory presumption - Whether direction breached the presumption of innocence - Defence Act, 1954 (No. 18), s. 135.

Deserting the defence forces is an offence under s. 135 of the Defence Act, 1954, which provides that desertion takes place when a person absents himself from his unit with the intention of not returning to it. Under s. 135(2)(b), a person is presumed to have the intention of not returning to his unit if he has been absent without authority for a continuous period of six months or more. The appellant was convicted of the offence of deserting the defence forces before a limited court martial on 17 August, 1995. It was not disputed that the appellant was absent from his unit for a period of over twelve years but he argued that he never formed an intention of not returning. The appellant was discharged from the defence forces and his appeal was grounded on a single point concerning the judge advocate's summing up on the burden of proof. The judge advocate dealt with the presumption in s. 135(2)(b) and went on to tell the court that if it was satisfied of the probability that the appellant never formed the intention of remaining away, it could acquit him, otherwise it could convict him. It was submitted on behalf of the appellant that this direction on the statutory presumption was incorrect and breached the presumption of innocence...