Private Donnelly v The Convening Authority (No. 2)
COURTS-MARTIAL APPEAL COURT
Defence forces - Court-Martial - Conviction for military offence quashed on appeal - Whether there should be re-trial by court-martial - Whether re-trial could safely take place - Possible loss of exculpatory material because of failure of Military Police to take note of interview - Absence of transcript of evidence
JUDGMENT of the Court (ex tempore) delivered on the 12thDecember, 2003 by Hardiman J.
A debate has taken place on the question of whether or not there should be a retrial by court-martial ordered in this particular case and it has proved to be more difficult than such applications usually are.
Although Mr. Giblin divided his grounds of opposition into three, there really are two themes, I think. One relates to the failure to make notes of the interview which took place between the military police and the applicant with, Mr. Giblin said, the possible loss of exculpatory material. The second, the difficulties arising out of the fact that there is no transcript of evidence available though there is a full note in narrative form. We are of the opinion that the points to do with the failure to record the interview are not really of much use to the applicant at this stage simply because even on his view of the case there was no exculpatory material over and above the statement made that he did not do it. We do not regard that as a point of substance.
The second point is more troubling because the Court has referred to the judgment of Mrs. Justice Denham in the case of
and the use that can legitimately be made of a transcript. We do not believe that this point goes beyond the examination of the complainant herself because she seems to be the only person whose evidence the applicant would be
concerned to impugn.
We accept that the Court has criticised the absence of a stenographic note or a recording and has made the point that it may well be said to interfere with cross-examination. Experience of cross-examining when there is a note made in handwriting or by type script. suggests that it does materially interfere with cross-examination. Now that is...
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