Private Donnelly v The Convening Authority (No. 2)

• Jurisdiction: Ireland
• Court: Courts-Martial Appeal Court
• Judgment Date: 12 December 2003
• Docket Number: 58 CM/03
• Date: 12 December 2003

PRIVATE GERARD DONNELLY

Appellant

and

THE CONVENING AUTHORITY

Respondent

58 CM/03

COURTS-MARTIAL APPEAL COURT

Abstract:

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.

Reporter R.W.

1 JUDGMENT of the Court (ex tempore) delivered on the 12thDecember, 2003 by Hardiman J.

2 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.

3 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...