Director of Public Prosecutions -v- McDonagh

• Jurisdiction: Ireland
• 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 officer in the permanent Defence Forces holding the rank of corporal. He is in the army ranger

wing attac hed to the Sec ond Infantry Battalion, Cathal Brugha Barracks, Dublin. On the 26th May, 2009, he was arraigned on twelve

counts, being those contained in a single charge sheet dated the 1st May, 2009. He pleaded not guilty to each charge. 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 to jurisdiction: Rule 41(1)(a) of t he Court-Martial Rules S.I. No. 205

of 2008), counsel on his behalf submitted that the further prosecution of these offences should be prohibited, firstly, on the grounds

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

and by reason of t he multiplicity of counts, prejudicial to the accused. Having considered these matters, the military judge issued his

ruling on the 27th May, 2009, in which he reject ed all such submissions. The c ourt-martial was then adjourned to the 8th June, 2009,

with the expectation that the trial would proceed on that occasion.

2. However, after some amendments to the particulars supporting the fifth and sixth charge, the appellant, at the commencement of

the hearing on the 8th June, was re-arraigned and pleaded guilty to five charges, numbered 1, 3, 5, 6 and 10 on t he charge sheet, as

amended. On that basis, the Director of Military Prosecutions entered a nolle prosequi in respect of the remaining charges. Having

received evidence and considered submissions made on behalf of t he accused, 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

sentence which the 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 Defence Act 1954 (“the 1954 Act”), as inserted by s. 38 of the Defence (Amendment) Act 2007 (“the 2007 Act ”). As is

provided for by that section, the presiding military judge, who constitutes the court- martial, has jurisdiction, subject to s. 192 of the

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

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 accepted that the appellant was at all relevant times subject to military law.

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

as appears on the indictment:-

“First Charge:

Committed an offence contrary to s. 169 of t he Defence Act 1954, that is to say assault c ontrary to s. 2(1) of the Non-Fatal

Offences against the Person Act 1997;….

In that on or about the 17th Marc h, 2007, at t he Best Western 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 conduct t o the prejudice of good order and discipline contrary to s. 168(1) of the Defence Act 1954;….

In that he on or about t he 17th March, 2007, at the Best Western Boyne Valley Hotel and Country Club, Drogheda in the

County of Louth, did grab 301039 Private Elizabeth Ray ‘B’ Coy 5th Infantry Battalion, by her head and pull it towards him.

Fifth Charge:

Committing conduct t o the prejudice of good order and discipline contrary to s. 168(1) of the Defence Act 1954;….

In that he on or about t he 17th March, 2007, at the Best Western Boyne Valley Hotel and Country Club, Drogheda in the

County of Louth, did expose himself.

Sixth Charge:

Committing conduct t o the prejudice of good order and discipline contrary to s. 168(1) of the Defence Act 1954,

In that he on or about t he 17th March, 2007, at the Best Western Boyne Valley Hotel and Country Club, Drogheda in the

County of Louth, did use inappropriate language towards Miss. L.B.

Tenth Charge: