Director of Public Prosecutions -v- McDonagh

• Judge: McKechnie J.
• Judgment Date: 15 July 2011
• Neutral Citation: [2011] IECMAC 1
• Case Outcome: Approved
• Docket Number: 174CM/09
• Court: Courts-Martial Appeal Court

THE COURTS-MARTIAL APPEAL COURT

[RECORD NO 174CM/09]

MCKECHNIE J.

MCGOVERN J.

CLARK J.

BETWEEN

THE DIRECTOR OF MILITARY PROSECUTIONS

APPLICANT/RESPONDENT

AND

CORPORAL DAMIEN MCDONAGH

RESPONDENT/APPELLANT

JUDGMENT of the Courts-Martial Appeal Court delivered on the 15th day of July, 2011

1. The appellant is a non-commissioned offic er in the permanent Defence Force s holding the rank of corporal. He is in the army ranger

wing attac hed to the Sec ond Infantry Batt alion, Cathal Brugha Barracks, Dublin. On the 26t h May, 2009, he was arraigned on twe lve

counts, being those c ontained in a single charge sheet dated t he 1st May, 2009. He pleaded not guilty to ea ch c harge. By way of

what was described as a “plea in bar” (erroneously so: s. 185 of the Defenc e Act 1954, as amended by s. 35 of the Defence

(Amendment) Act 2007. More acc urately, it was a spec ial plea as t o jurisdiction: Rule 41(1)(a) of t he Court- Martial Rules S.I. No. 205

of 2008), counsel on his behalf submitted t hat the further prosecution of these off ences s hould be prohibited, firstly, on the grounds

of delay, and sec ondly, on t he basis that the c harges as framed were unsatisfac tory in a variety of way s such as, being oppressive

and by reason of t he multiplicity of count s, prejudicial to the a cc used. Having considered these matte rs, the military judge issued his

ruling on the 27t h May, 2009, in which he reject ed all such s ubmissions. The c ourt-martial was then a djourned to the 8th June, 2009,

with the e xpectat ion that t he trial would proceed on t hat oc casion.

2. However, aft er some amendments to the particulars supporting the fifth a nd sixth charge, the appellant, at t he commencement of

the hearing on the 8t h June, was re- arraigned and pleaded guilty t o five c harges, numbered 1, 3, 5, 6 and 10 on t he c harge sheet, as

amended. On that basis, t he Director of Military Prosecut ions entered a nolle prosequi in respect of the remaining charges. Having

received evidenc e and considered submissions made on behalf of t he ac cused, t he military judge, in a ruling given on the 9th June,

2009, ordered that his rank be reduced to that of private and imposed a fine of €500.00. It is against t he former part of that

sentenc e which t he appellant has appealed to this Court.

3. The c ourt-martial which tried the appellant was a summary one exercising its original jurisdiction pursuant t o the provisions of s.

187A of the Defenc e Act 1954 (“the 1954 Ac t”), as inserted by s. 38 of the Defence (Amendment) Act 2007 (“the 2007 Act ”). As is

provided for by that sect ion, the presiding military judge, who const itutes t he court- martial, has jurisdiction, subjec t t o s. 192 of t he

Act (which is not relevant), to hear and determine all charges refe rred to it by t he Court-Martials Administrator at the direction of t he

Direct or of Military Prosecut ions (“DMP”). Commandant Richard Brennan, B.L. appeared on behalf of t he DMP with Mr. Gerard

Humphries, B.L., appearing on behalf of the appellant. Nothing turns on the nature or jurisdiction of the c ourt- martial so est ablished.

It is also ac cept ed that the appellant was at all relevant t imes subject to military law.

4. The c harges which t he appellant pleaded guilty to were as follows: ret aining for the purposes of this rec ital, the original numbering

as appears on t he indictment:-

“First Charge :

Committed an offenc e cont rary t o s. 169 of t he Defence Act 1954, that is to say assault c ontrary to s. 2(1) of t he Non-Fatal

Offences against the Person Act 1997;….

In that on or about t he 17th Marc h, 2007, at t he Best West ern Boyne Valley Hotel and Country Club, Drogheda in the County

of Louth, did assault Miss. L.B. by putting his hands around her head and pulling it towards him.

Third Charge:

Committing c onduct t o the prejudice of good or der and discipline contr ary t o s. 168(1) of t he Defence Act 1954;….

In that he o n or about t he 17th Mar ch, 2007, at the Best West ern Boyne Valley Hotel and Country Club, Drogheda in the

County of Lout h, did grab 301039 Private Elizabeth Ray ‘B’ Coy 5th Infantry Batt alion, by her head and pull it towa rds him.

Fifth Charge:

Committing c onduct t o the prejudice of good or der and discipline contr ary t o s. 168(1) of t he Defence Act 1954;….

In that he o n or about t he 17th Mar ch, 2007, at the Best West ern Boyne Valley Hotel and Country Club, Drogheda in the

County of Lout h, did expose himself.

Sixth Charge:

Committing c onduct t o the prejudice of good or der and discipline contr ary t o s. 168(1) of t he Defence Act 1954,

In that he o n or about t he 17th Mar ch, 2007, at the Best West ern Boyne Valley Hotel and Country Club, Drogheda in the

County of Lout h, did use inappropriate language tow ards Miss. L.B.

Tenth Char ge: