McGRATH, CORPORAL

 
FREE EXCERPT

1998 WJSC-CMAC 9886

The High Court

Denham J.

Barr J. 9886

Morris J.

2CM/93
McGRATH, CORPORAL
COURTS-MARTIAL APPEAL COURT
CORPORAL PAUL PATRICK McGRATH
Appellant

Citations:

DEFENCE ACTS 1954 – 1987 S137(1)

DEFENCE ACTS 1954 – 1987 S167(a)

DEFENCE ACTS 1954 – 1987 S168(1)

FOLEY, APPL OF UNREP CMAC EX TEMP 15.2.93

DEFENCE ACT 1954 S210

DEFENCE FORCE REGULATION A8 PARA 37

DEFENCE FORCE REGULATION A8 PARA 38

DEFENCE FORCE REGULATION A8 PARA 39

DEFENCE FORCE REGULATION A8 PARA 40

DEFENCE FORCE REGULATION A8 PARA 40A

Words & Phrases:

CEF

Subject Headings:

*

JUDGMENT OF THE COURT delivered on
DENHAM J.
1

This is an appeal by Corporal Patrick McGrath against findings and sentence of a court-martial held on the 23rd February, 1993 which was promulgated on the 5th May, 1993.

2

Corporal McGrath was charged on two charge sheets. The first charge sheet, which contained five charges, charged the appellant with

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1. Absenting himself without leave contrary to s. 137(1) of the Defence Acts,1954to 1987. In that he, at Collins Barracks, Cork absented himself without leave from 0845 hours on the 10th November, 1992 until 1150 hours on the 10th November, 1992. Total absence three hours.

4

2. Absenting himself without leave contrary to s. 137(1) of the Defence Acts,1954to 1987. In that he, at Collins Barracks, Cork absented himself without leave from 1430 hours on the 10th November, 1992 until 1150 hours on the 11th November, 1992. Total absence one day.

5

3. Absenting himself without leave contrary to s. 137(1) of the Defence Acts,1954.to 1987. In that he, at Collins Barracks, Cork absented himself without leave from 1400 hours on the 11th November, 1992 until 2045 hours on the 12th November, 1992. Total absence two days.

6

4. Absenting himself without leave contrary to s. 137(1) of the Defence Acts,1954to 1987. In that he, at Collins Barracks, Cork absented himself without leave from 0845 hours on the 13th November, 1992 until 0820 hours on 30th November, 1992. Total absence seventeen days.

7

5. Absenting himself without leave contrary to s. 137(1) of the Defence Acts,1954to 1987. In that he, at Collins Barracks, Cork absented himself without leave from 0845 hours on the 1st December, 1992 until 0830 hours on the 8th December, 1992. Total absence seven days.

8

The second charge sheet, which contained four charges, charged the appellant with

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1. Knowingly making a document required for official purposes that is false contrary to s. 167 (a) Defence Acts,1954to 1987. In that he on or about the 10th November, 1992 at Collins Barracks, Cork made a false entry in his L.A. 30 an official document purporting to show that he had been given fourteen days sick leave and signed by J. Monaghan, in the signature of M.O. column of his L.A. 30, knowing such entries to be false.

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2. Committing conduct to the prejudice of good order and discipline contrary to s. 168(1) Defence Acts,1954to 1987. In that he, at the company office 3rd Garrison AOC Collins Barracks, Cork at approximately 1430 hours on the 10th November, 1992 stated to No. 832359 Sgt. Barry, R. 3rd Garrison AOC that he had received fourteen days sick leave as a result of reporting to GMH Cork, knowing such statement to be false.

11

3. Committing conduct to the prejudice of good order and discipline contrary to s. 168(1) Defence Acts,1954to 1987. In that he, at HQ 3rd Garrison MP Coy Collins Barracks, Cork on the 30th November, 1992 stated to No. 815029 Sgt. McGrath, William MPC and Corporal Murphy J. MPC that an entry in his L.A. 30 dated the 10th November, 1992 had been made by a doctor in the accident and emergency unit at the Cork Regional Hospital knowing such statement to be false.

12

4. Committing conduct to the prejudice of good order and discipline contrary to s. 168(1) Defence Acts,1954to 1987. In that he, at the MP Section HQ 3rd Garrison MP Coy Collins Barracks, Cork on the 8th December, 1992 stated to No. 824321 Corporal Murphy J. MPC and to No. 836829 Corporal Morris, N. MPC, that an entry in his L.A. 30 dated the 10th November, 1992 was made by a doctor in the accident and emergency unit of Cork Regional Hospital knowing such statement to be false.

13

Corporal Murphy pleaded guilty to the first three charges on Charge Sheet No. 1. When asked was he guilty to the fourth charge he answered that he was guilty of absence without leave for the period 0845 hours on the 13th November, 1992 until 0830 hours on the 23rd November, 1992. On behalf of the convening authority the prosecutor did not accept the plea of guilty to the reduced period of absence without leave on the fourth charge. The Judge Advocate advised that the Court-Martial try the charge as laid before it and Corporal McGrath then pleaded not guilty. On being asked was he guilty or not guilty of the fifth charge Corporal McGrath pleaded guilty of absence without leave for the period 0830 hours on the 5th December, 1992 until 0830 hours on the 8th December, 1992. Once again the prosecutor on behalf of the convening authority did not accept the plea of guilty to the reduced period of absence without leave and the Judge Advocate advised that the Court try the charge as laid before it. Corporal McGrath then pleaded not guilty to the fifth charge.

14

In relation to the second charge sheet the appellant pleaded guilty to all four charges.

15

The Court-Martial found Corporal McGrath guilty of all charges on both charge sheets, and he was sentenced to a reduction to the rank of Private.

16

Against that decision the appellant has appealed setting out nine grounds of appeal but in fact he argued eight before this Court. These were:-

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2 "1. That the evidence before the Court-Martial was insufficient to enable the Court to find the applicant guilty of the fourth charge.

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2. That the evidence before the Court-Martial was insufficient to enable the Court to find the applicant guilty of the fifth charge.

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3. That the summing up of the Judge Advocate was unsafe and unsatisfactory in that he placed an over reliance on a portion only of Dr. O'Toole's evidence.

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4. That the summing up of the Judge Advocate was unsafe and unsatisfactory in the manner and way in which he purported to explain the burden of proof to the Court-Martial.

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5. That the summing up of the Judge Advocate was unsafe and unsatisfactory in that the Judge Advocate advised the Court-Martial in the following terms;

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“In this case the prosecution has established the first essential proof, that is that the accused was absent from his unit for the period set out in the charges before you. This is not contested by the defence”,

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without advising the Court-Martial that it was necessary and essential for the prosecution to prove all elements of the charges in respect of the fourth and fifth charges against the accused beyond all reasonable doubt.

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6. This ground was withdrawn.

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7. That in imposing sentence the Court-Martial failed to have due regard to the effect of the sentence on the accused and that they therefore failed to take into account matters that were relevant.

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8. That in imposing sentence the Court-Martial failed to have due regard to the circumstances and character of the applicant and therefore failed to take into account matters that were relevant.

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9. That the Court-Martial failed to have due regard to the evidence of the applicant's commanding officer Commandant O'Donovan."

28

Mr. Cormac Clancy, counsel for the appellant, moved grounds 1 and 2 of the grounds of appeal together arguing that there had been insufficient evidence before the Court-Martial as to the absence without leave of the appellant; that there was insufficient evidence to prove beyond reasonable doubt that the appellant was absent without leave for the time as set out in Charge Sheet No. 1, charges four and five. He pointed to the evidence given in the case and submitted that it was insufficient.

29

In regard to the fourth charge on Charge Sheet No. 1 the time on the charge sheet in issue was from 0845 hours on the 13th November, 1992 until 0820 hours on the 30th November, 1992, seventeen days. The evidence presented to the Court-Martial in relation to this was as follows. Sergeant Richard Barry stated on examination by the prosecution:-

"On the 13th November, 1992 I was Orderly Sergeant in the 3rd Garrison Ordnance Coy. At 0845 hours that morning I found the accused Corporal McGrath to be absent. I duly marked him absent on the absentee report."

"I was Orderly Sergeant of my unit on the 30th November, 1992. I...

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