Director of Military Prosecutions v Donohoe

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Edwards
Judgment Date09 Mar 2017
Neutral Citation[2017] IECA 92
Docket NumberRecord No:172CM/15

[2017] IECA 92

THE COURT OF APPEAL

MILITARY

Edwards J.

Sheehan J.

Mahon J.

Edwards J.

Record No:172CM/15

THE DIRECTOR OF MILITARY PROSECUTIONS
Respondent/Applicant
- V –
COMMANDANT NILE DONOHOE
Appellant/Respondent

Conviction – Assault – Delay – Appellant seeking to appeal against conviction – Whether there was inordinate, inexcusable and unexplained delay in the investigation and prosecution of the complaints against the appellant which caused irremediable prejudice to the defence

Facts: The appellant, Comdt Donohoe, an officer in the Permanent Defence Force attached to the Central Medical Unit (CMU) of the Defence Forces, appealed to the Court of Appeal against his conviction at a General Court-Martial held at the Military Justice Centre at McKee Barracks, Blackhorse Ave, Dublin 7, on two charges set out on the Court-Martial Charge Sheet dated 14th July 2009; namely, Charge 3 which was a charge of committing a civil offence, contrary to s. 169 of the Defence Act 1954, to wit assault contrary to s. 2 of the Non Fatal Offences Against the Person Act 1997, and Charge 5 which was a charge of using insulting language to a superior officer contrary to s. 133 of the 1954 Act. The General Court-Martial was held on numerous dates between the 1st of June 2014 and the 22nd of April 2015, and its finding of conviction made on the 22nd of April 2015 was promulgated on the 12th June 2015. Following his conviction the appellant was sentenced in respect of both charges to reduction to the fourth point of the pay scale for the rank of Commandant with effect from the 1st of August 2015 and to a fine of an amount equal to 10 days pay. The appellant also sought leave to add new grounds of appeal against conviction and for leave to adduce evidence of new or newly discovered facts in support of the appeal against conviction. The appellant's grounds of appeal were that: 1) the Courts-Martial Board was improperly constituted in that some members were serving in the chains of command as the appellant; 2) the panel from which the Board was selected was improperly constituted in that it included officers serving in the chains of command of the appellant and a prosecution witness; 3) the respondent, the Director of Military Prosecutions, failed to inform the appellant of the details of his chains of command, despite request, thereby depriving him of the opportunity of meaningful involvement in the process of Board selection; 4) the selection process to select the members of the Courts-Martial Panel and Board was carried out otherwise than in public and the manner in which it was carried out could not be challenged; 5) there was inordinate, inexcusable and unexplained delay in the investigation and prosecution of the complaints against the appellant which caused irremediable prejudice to the defence; 6) there was a failure to preserve available and relevant evidence as a result of which the appellant was prejudiced in his defence.

Held by the Court that it was not in a position to uphold any of the grounds of appeal advanced by the appellant. The Court was satisfied that his Court-Martial was satisfactory and that his conviction was safe.

The Court held that it would dismiss the appellant's appeal against conviction.

Appeal dismissed.

Judgment of the Court delivered the 9th of March 2017 by Mr. Justice Edwards .
Introduction.
1

In this case the appellant, an officer in the Permanent Defence Force holding the rank of Commandant, and attached to the Central Medical Unit (CMU) of the Defence Forces, appeals against his conviction at a General Court-Martial held at the Military Justice Centre at McKee Barracks, Blackhorse Ave, Dublin 7, on two charges set out on the Court-Martial Charge Sheet dated 14th July 2009; namely, Charge No 3 which was a charge of committing a civil offence, contrary to s.169 of the Defence Act 1954 (the Act of 1954), to wit assault contrary to s.2 of the Non Fatal Offences Against the Person Act 1997, and Charge No 5 which was a charge of using insulting language to a superior officer contrary to s.133 of the Act of 1954. The General Court-Martial was held on numerous dates between the 1st of June 2014 and the 22nd of April 2015, and its finding of conviction made on the 22nd of April 2015 was promulgated on the 12th June 2015.

2

Following his conviction the appellant was sentenced in respect of both charges to reduction to the fourth point of the pay scale for the rank of Commandant with effect from the 1st day of August 2015 and to a fine of an amount equal to 10 days pay.

3

The Director of Military Prosecutions, the respondent to the conviction appeal, has also brought what is in effect a cross appeal in which he seeks a review of the said sentence pursuant to s.2 of the Criminal Justice Act 1993 on the grounds that it was unduly lenient.

4

This judgment will deal solely with the appellant's appeal against his conviction and an associated motion seeking leave to add new grounds of appeal against conviction and for leave to adduce evidence of new or newly discovered facts in support of the appeal against conviction.

5

For simplicity and the avoidance of confusion The Director of Military Prosecutions will hereinafter be referred to as 'the Director' and Commandant Donohoe will hereinafter be referred to as 'the defendant'.

The Initial Grounds of Appeal
6

Following the defendant's conviction a Notice of Appeal dated the 3rd of July 2015 was filed on his behalf which pleaded the following complaints in respect of the defendant's conviction:

- 'There were ineligible members sitting on the board.

- The selection process to select the members of the board was carried out otherwise than in public and in a manner by which the randomness of the selection process cannot be ascertained.

- There has been an inordinate and inexcusable delay in the prosecution of the accused in breach of the European Convention on Human Rights Act 2004 and the time limit for trial relied upon by the Director of Military Prosecutions is also incompatible with the European Convention on Human Rights Act 2004

- The Director of Legal Services and the Director of Military Prosecutions were acting in a manner which was incompatible with the European Convention on Human Rights Act 2004.

- There was prior involvement in the matter by the Chief Prosecutor, the Director of Military Prosecutions and a Prosecutor was also listed as a defence witness.

- There was non-disclosure of evidence and the prosecution did not seek to preserve any evidence that could exculpate the accused.'

Procedural history of these appeal proceedings.
7

As is usual since the establishment of this Court, all appeals are the subject of active case management. Based on these grounds of appeal both the defendant and the Director were directed at a case management hearing to file legal submissions in support of their respective positions and the appeal was listed for hearing on the 11th of May 2016.

8

Shortly before the said hearing date, on the 5th of May 2016, the defendant filed detailed legal submissions running to 49 pages of single spaced text. Despite the lateness of receipt of the defendant's submissions the Director's side managed to file replying submissions on the 10th of May 2016, i.e., the day before the scheduled appeal hearing. In those submissions the Director noted that the defendant's submissions purported to be in support of what the defendant characterized therein as his 'expanded grounds of appeal'. This was despite the fact that no leave had been sought from, or granted by, this Court to add additional grounds of appeal.

9

When the case was called on the 11th of May 2016 counsel for the defendant sought an adjournment on the basis that he was not ready to go on as his submissions required to be revised, both to address objections made by the Director in his submissions and also in the light of some new information lately received by the defendant. With considerable reluctance the Court acceded to the adjournment application, and a new date of the 28th of July 2016 was fixed for the hearing of the appeal.

10

On the 27th of May 2016 the defendant filed revised submissions. These were somewhat shorter than the initial submissions, running to 21 pages of single spaced type. However, these again purported to speak to what were characterized therein as 'expanded grounds of appeal'. Notwithstanding that the defendant had been on notice since the 10th of May 2016 that the Director was objecting to any reliance without the leave of the Court on additional grounds of appeal beyond those pleaded in the Notice of Appeal filed on the 3rd of July 2015, the defendant had not brought any motion in the meantime seeking leave to expand his grounds of appeal. The Director's side filed further submissions on the 30th of June 2016 in response to the defendant's revised submissions, and in these further submissions re-iterated yet again that the attempt by the defendant to rely on so-called 'expanded grounds' was being vehemently objected to. However, the so-called 'expanded grounds of appeal' were nonetheless responded to effectively on the basis that the Director's response was without prejudice to his objection that the defendant was seeking to rely on additional grounds without having obtained leave to do so.

11

When the matter came on for hearing on the 28th of July 2016 the Court was advised just prior to the call-over of cases for hearing that 'new evidence' had come to light as a result of which the defendant required an adjournment. The Court deprecated the lateness of the application but acceded, though again with reluctance, to the request for an adjournment. In doing so we noted that this was the second time that the Court had been unable to proceed with the hearing of the appeal. The Court directed that any motion and affidavit to ground an...

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