Mark Beatty v Military Judge and Director of Military Prosecutions and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Keane |
| Judgment Date | 18 November 2013 |
| Neutral Citation | [2013] IEHC 575 |
| Court | High Court |
| Date | 18 November 2013 |
[2013] IEHC 575
THE HIGH COURT
BETWEEN
AND
AND
DEFENCE ACT 1954 S133
RSC O.31 r29
RSC O.31 r12
CHAMBERS v TIMES NEWSPAPER LTD & WITHEROW 1999 2 IR 424 1999 1 ILRM 504 1998/13/4663
HUDSON v JUDGE HALPIN & DPP UNREP HOGAN 15.1.2013 2013 IEHC 4
SUMMARY JURISDICTION (IRL) ACT 1851
R v NAT BELL LIQUORS LTD 1922 2 AC 128 1922 AER REP 335
O'CONNOR v JUDGE CARROLL 1999 2 IR 160 1998/28/11205
COURT-MARTIAL RULES 2008 SI 205/2008
RULES OF PROCEDURE (DEFENCE FORCES) 2008 SI 204/2008 RULE 39
RULES OF PROCEDURE (DEFENCE FORCES) 2008 SI 204/2008 RULE 40
DEFENCE ACT 1954 S131
Judicial review - Defence forces - Court martial - Offence known to law - Non-party discovery - Declaration of the Court - Certiorari - Damages - Court-Martial Administrator - Possession of documentation - Relevance - Availability of documentation - Interests of justice - Defence Act 1954
Facts: At the conclusion of a summary court martial in February 2013, the applicant was found guilty by the first named respondent of having behaved "in an insubordinate manner towards a superior officer", contrary to s. 133 of the Defence Act 1954, and he was fined €300. Subsequently, the applicant sought and obtained leave to apply for judicial review of that decision. The reliefs sought were a declaration that the particulars of the charge against him did not disclose an offence known to law, an order of certiorari quashing the decision of the first named respondent, and damages. The motion to which this judgment refers concerned an application brought by the applicant for discovery from a non-party, namely the Court-Martial Administrator, which was made in the context of the pending judicial review proceedings.
By a letter of the 9 th September 2013, the applicant wrote to the Court-Martial Administrator requesting voluntary discovery of a transcript of the court martial proceedings. This was refused and the applicant brought the present application.
Held by Hogan J. that for an order for non-party discovery to be made, the applicant was obliged to establish certain criteria: the documentation sought had to exist, it had to be likely that the non-party had possession of the documentation at the time of the motion, the documentation had to be relevant to an issue arising or likely to arise, it mustn”t be readily available to be discovered by a party to the action, and it had to be in the interests of justice to make the order. It was undisputed that the documentation sought existed and was in the possession of the non-party at the time of the applicant”s motion.
It was held that the Court was not satisfied the discovery sought by the applicant was not otherwise available to the applicant from an existing party to the proceedings, namely the first named respondent. The applicant had suggested that it would be improper to require discovery of the transcript of the court martial proceedings from the first named respondent because it would involve bringing a judge into the ‘forensic arena’. This was, however, rejected as a distinction was drawn between a judge making an affidavit for the purposes of judicial review proceedings and an application being made to a judge for a direction that a transcript to be provided in the interests of justice. In regards to the relevance of the documentation sought, it was noted that the applicant had not suggested any specific factual issue or controversy that required a copy of the court martial transcript to resolve. Finally, it was found that it would not be in the interests of justice to make an order for non-party discovery.
Application refused.
The applicant in this case seeks an Order for discovery directed to the Court-Martial Administrator, who is an officer of the Permanent Defence Forces of senior rank, appointed by warrant of the Judge Advocate General under the Defence Acts 1954 to 2007 for the purpose of discharging certain specified functions in respect of the Court-Martial system in military law that are analogous to the functions discharged by the Courts Service in respect of the ordinary criminal courts system.
The Court-Martial Administrator is not a party to these proceedings. Hence, this is an application for non-party discovery.
The applicant seeks an Order directing the Court-Martial Administrator to make discovery of all documents within his possession, custody or power "referring to all of the summary court-martial proceedings entitled 'The Director of Military Prosecutions -v- No. 861073 Corporal Mark Beatty of the 2 nd Cavalry Squadron' which commenced at the Military Justice Centre, McKee Barracks, Dublin 7 on the 5 th February 2013, under reference number SCM(A) 2012/006."
This discovery application is grounded on an affidavit of the applicant's solicitor, sworn on the 19 th September 2013, from which it is apparent that the applicant is, in substance, seeking a copy of the transcript of the court-martial proceedings. In that regard, the uncontroverted evidence of the Court-Martial Administrator ('the non-party'), contained in an affidavit sworn on his behalf by Commandant Noel Conway on the 1 st November 2013, is that no such transcript exists. However, it appears to be common case that a Digital Audio Recording ("DAR") of the court-martial proceedings does exist and so the application before this Court has narrowed in scope to one seeking discovery of that recording from the non-party.
The applicant has issued the present motion in the context of pending Judicial Review proceedings that he has been given leave to bring against the Military Judge who presided over the applicant's summary court-martial, and against the Director of Military Prosecutions, a statutory office holder with, as his title suggests, responsibility for the conduct of military prosecutions.
The summary court-martial at issue took place over three days (on the 5 th, 7 th and 8 th February 2013). At the conclusion of that hearing, the applicant was found guilty of the single charge then remaining before the Military Judge, which was one that he behaved "in an insubordinate manner towards a superior officer", contrary to s. 133 of the Defence Act 1954. The Military Judge imposed a fine of €300 in respect of that charge.
Peart J. granted the applicant leave to bring the present proceedings by Order made on Monday, the 29 th April 2013. In these proceedings, the applicant seeks three substantive reliefs. The first is a Declaration that the particulars of the offence laid against him, contrary to s. 133 of the Defence Act 1954, do not disclose an offence known to law. The said particulars are "that he, 861073 Cpl Beatty M, at approx. 12:00 Hrs on Monday 16 July 2012, 2 Cavalry Squadron HQ, Cathal Brugha Barracks, Rathmines, Dublin did behave in an insubordinate manner when paraded by A0766 Lt J Forde - Adjt, 2 Cav Sqn, when given a verbal order did, 'ask for the conformation ( sic) of the order in writing' or words similar to that effect."
The second relief sought by the applicant is an Order of Certiorari quashing the determination made by the Military Judge on the 8 th February 2013 that the applicant was guilty of an offence under military law, contrary to s. 133 of the Defence Act, 1954. The third relief that the applicant seeks is damages.
In the applicant's Statement Grounding Application for Judicial Review, dated the 24 th April 2013, two grounds are put forward in support of the relief claimed. The first simply mirrors the Declaration that the applicant seeks. It asserts that the offence that the applicant was convicted of is not known to law in that the particulars of offence stated in the charge do not disclose the offence of insubordination, contrary to s. 133 of the 1954 Act, or any offence.
The second ground on which the applicant relies is that "the appeal was conducted in a manner contrary to the rules of constitutional justice, fair procedures and the European Convention for the Protection of Human Rights in that, despite the objections of the solicitor for the Applicant, considerable irrelevant and prejudicial evidence was admitted in evidence."
The applicant swore a grounding affidavit, in addition to the required verifying affidavit, on the 24 th April 2013. In that affidavit, the applicant avers to the submissions that his solicitor made to the Military Judge in support of the proposition that the particulars of offence provided did not disclose any offence known to the law. The applicant then avers in some detail to the objections that his solicitor made both to the military prosecutor's opening of the case and to much of the evidence adduced from the three witnesses who were called on behalf of the prosecution to prove the allegation of insubordination against the applicant.
The respondents have delivered a Statement of Opposition, dated the 29 th July 2013, in which, amongst other matters, they deny that the particulars of offence laid...
To continue reading
Request your trial
-
Mark Beatty v The Military Judge and The Director of Military Prosecutions
...Order 31 Rule 29 Rules of the Superior Courts for non-party discovery against the Court-Martial Administrator (the CMA). The High Court ([2013] IEHC 575) refused the application. The applicant’s appeal to the Court of Appeal raised three questions: first, whether and if so to what extent, t......