Private O'Doherty

 
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1998 WJSC-CMAC 11283

THE HIGH COURT

COURTS-MARTIAL APPEAL COURT

O'Flaherty J.

Barr J.

Morris J.

No. 2CM/1990
PRIVATE O'DOHERTY
PRIVATE SEAN O'DOHERTY
Appellant

Citations:

DEFENCE ACT 1954 S135(1)

DEFENCE ACT 1954 S210(1)(e)

Words & Phrases:

CEF

Subject Headings:

*

O'Flaherty J.
1

In this case the appellant appeals against severity of sentence in respect of a finding of being absent without leave contrary to s. 135(1) of the Defence Act, 1954. This was after a limited Court-Martial that was held at Finner Camp, Ballyshannon, Co. Donegal, on the 2nd October, 1990. It appears he was absent for a period of 605 days. He was found not guilty of a charge of desertion and no other punishments were inflicted aside from that of being discharged from the Defence Force under s. 210 (1)(e) of the Defence Act, 1954.

2

The points urged before us very fully by Mr. Needham are that he had an unhappy breakdown of his marriage and he was subject to a certain amount of jeering from his companions and so forth in relation to that and he had also run into financial difficulties. It appears that these points were not expressly made in express terms before the Court-Martial but we are told that the members of the Court-Martial knew about them.

3

The Court would wish to say that first of all the defendant should put everything that he can urge before the Court-Martial because this appeal-Court has a very limited function and it can only review the case that was made before the Court-Martial and find out if it can detect that there was any error of principle. We have limited powers to receive any fresh evidence and we have not received any fresh evidence in this case. We have accepted what Mr. Needham told us but it has to be stated that this should have been put before the Court-Martial in express terms and the Court-Martial should give its reaction to the evidence whether the members accept or reject what was put forward by way of mitigation because the army authorities are much better equipped to judge whether someone is fit to remain in the Defence Forces or not than anybody else. This Court's function is look at the matter on appeal and decide whether there has been any mistake in principle. If there has, this Court, of course, would and should be unhesitating in interfering with such a sentence.

4

This Court has come to the view that even if the matters that have been put before us had been put in the most explicit terms before the...

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