Corporal O'Mahoney

1998 WJSC-CMAC 11592

THE COURTS-MARTIAL APPEAL COURT

2CM/94

CORPORAL O'MAHONEY

CORPORAL DENIS O'MAHONY

Appellant

Citations:

COURTS-MARTIAL APPEALS ACT 1983 S13

DEFENCE ACTS 1954 – 1990 S137(1)

CRIMINAL JUSTICE ACT 1990 S7

Words & Phrases:

C

Subject Headings:

*

1

This is an appeal by the appellant under s. 13 of the Courts-Martial Appeals Act,1983against the finding and sentence of a limited court-martial held at collins Barracks, cork on the 28th day of October, 1993. The appellant was found guilty of absenting himself without leave contrary to s. 137(1) Defence Acts1954to 1990as amended by s. 7 of the Criminal Justice Act,1990and the sentence imposed was a reduction to the rank of private and a fine of £300. The appeal is against both the finding and the sentence.

2

The particulars of the offence with which the appellant was charged were that he did absent himself without leave from D. Company Headquarters, 13 Infantry Battalion (FCA) kanturk, Co. Cork from 07.45 hours on the 12th day of May 1993 until 07.00 hours (reveille) on the 13th day of May 1993 the place where his duty required him to be.

3

The first ground of appeal was that the evidence before the Court-Martial was insufficient to find the appellant guilty as charged. In the view of the Court this ground must be rejected. On the day in question, the 12th May 1993, the appellant had been detailed to report for butt duty at No. 4 Range, Kilworth, at 08.45 hours. He was to be collected at the F.C.A. Headquarters in kanturk and brought to kilworth. Private Cornelius Roche gave evidence that he arrived at the Headquarters in Kanturk at 07.45 hours to pick up the appellant; that he waited until 08.00 hours and as the appellant had not turned up by then he proceeded on without him. He also said that, almost a week previously, he had telephoned to the appellant at the appellant's brother's house and spoken to him personally and told him that he was detailed for the range in kilworth on the 12th May.

4

C.Q.M.S. Thomas O'Hara gave evidence that the appellant did not appear at kilworth and did not appear at his place of duty at any time on the 12th May.

5

There was evidence also that at about 10.00 a.m. on the same day the appellant's wife range the F.C.A. Headquarters in Kanturk and informed private James Noonan that her husband was availing of a day's sick leave. Following on this, Private Roche and Corporal Richard Bond called to the appellant's house in Millstreet during the afternoon and found nobody there.

6

Finally, there was evidence from Mr. Frank Mulligan, the Personnel Manager of Securiforce Limited that he had interviewed the appellant with a view to taking...