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
Facts: Private Donnelly’s conviction for the military offence of committing a civil offence contrary to s. 169 of the Defences Acts 1954 to 1998 was quashed on appeal by the Courts-Martial Appeal Court. The question arose as to whether or not there should be a re-trial by court-martial. The two grounds of opposition were firstly the possible loss of exculpatory material arising out of the failure by the Military Police to make a note of the interview and, secondly, the fact that there was no transcript of evidence available.
Held by the Courts-Martial Appeal Court in directing a re-trial that a re-trial could safely take place. Although there had been a failure to record the interview there was no loss of exculpatory material. The allegedly inculpatory statement made at the interview would be excluded. Although there was no transcript there was a full note in narrative form and it appeared full and no complaint had been made about the omission of anything.
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...
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