Private Donnelly v The Convening Authority (No. 1)
2003 WJSC-CMAC 2670
COURTS-MARTIAL APPEAL COURT
DEFENCE ACT 1954 S169
DEFENCE (AMDT) ACT 1998
CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2
BUCKLEY V CONVENING AUTHORITY 2000/1/379
DPP V HEALY
MAGUIRE V ARDAGH
Defence forces - Court-Martial - Appeal to Courts- Martial Appeal Court - Conviction for military offence - Failure of military police to make note of interview - Failure of Military Police to inform appellant of his right to legal advice - Whether conviction should be quashed
Facts: Private Donnelly appealed against his conviction for the military offence of committing a civil offence contrary to s. 169 of the Defences Acts 1954 to 1998, namely sexual assault. The appellant contended firstly that the Military Police failed to make a note of what he said until he began to make an incriminating statement and secondly, that the Military Police failed to tell the appellant when he was attending involuntarily for the purpose of being questioned that he was entitled to consult a solicitor.
Held by the Courts-Martial Appeal Court in allowing the appeal and quashing the conviction that the Military Police should have made a full note of the interview and the appellant should have been told of his right to a solicitor. The Military Police had ample notice of the fact that the appellant was going to be questioned and should have taken whatever steps were appropriate to make a proper record of what was said. It was wholly unreal to consider that the appellant would be in a position to assert his right to legal advice without having been told of it.
JUDGMENT of the Court (ex tempore) delivered on the28th day of November, 2003 by Hardiman J.
This is an appeal by the appellant Private Gerard Donnelly of the 4 th Field Artillery Regiment against his conviction for the military offence of committing a civil offence contrary to s.169 of the Defence Acts, 1954–1998, that is sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act, 1990. He was convicted of this offence after a limited court-martial held on the 9 th, 10 th and 13 th of January, 2003. The order was promulgated on the 4 th March, 2003. He was sentenced to be discharged from the Defence Forces.
On this appeal a total of eighteen grounds were urged but the Court is satisfied that it is sufficient for the purpose of dealing with the appeal to consider two of them.
The first related to the omission of the Military Police, after the appellant was cautioned, to make a note of what he said until, allegedly, he began to make an incriminating statement. A subsidiary point here is the form of caution used. The second point relates to the failure to tell the appellant, when he was attending involuntarily with the Military Police for the purpose of being questioned, that he was entitled to consult a solicitor.
We would refer in the first instance to the case of Gunner Jason Buckley v. The Convening Authority). The decision of the Court was given by Chief Justice Finlay. It seems to us that he perceived an analogy between the military and the civil procedures. Dealing with the question of whether a person who had not been arrested as such but (being a serving soldier) had been ordered to attend for questioning by the military police, was entitled to the protection of the Judges' Rules, the learned Chief Justice said this:-
"Even though, therefore, the "enforced presence" to use a neutral term, of the appellant in the investigating office of the military police on this occasion was not custody as a person about to be charged or charged with an offence against military law, but rather was in accordance with a lawful military command, the fact that he could not leave is, the Court is satisfied, the essential element, and accordingly, r.3 of the Judges' Rules applied to the situation in which he was for the purpose of the admission of his statement before a court-martial would have required that he should have been cautioned before the commencement of any questioning".
It therefore appears to us that if the fact that he was in a police office which he could not lawfully leave was sufficient to trigger Gunner Buckley's right to be cautioned, and it was equally sufficient to trigger the present appellant's right to have the Judges' Rules generally observed in his regard. Indeed there does not seem to be any serious dispute about that because he was in fact cautioned.
Here the first of a number of unfortunate oddities of procedure occurred. First of all on the papers there is contradictory evidence as to what form of caution was. One of the military policemen says that he delivered a caution in the form written on a card which he carried in his pocket for that purpose. On the other hand, as a member of the Court has pointed out, the caution recorded in the notes of the interview is in a different form. It...
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