Private Murphy
1998 WJSC-CMAC 10572
THE COURTS-MARTIAL APPEAL COURT
Blayney J.
Lynch J.
Lavan J.
Citations:
COURTS MARTIAL APPEALS ACT 1983 S13
RULES OF PROCEDURE (DEFENCE FORCES) 1954 SI 243/1954 ART 20(3)
FREEMAN, STATE V CONNELLAN 1987 ILRM 470
COURTS MARTIAL APPEALS ACT 1983 S17(1)
Words & Phrases:
CEF
Subject Headings:
*
This is an appeal under s. 13 of the Courts-Martial Appeals Act,1983. The appeal is against the order of a Court-Martial held on the 12th March, 1992 by which the appellant, Private William Murphy, was ordered to be discharged from the Defence Forces.
The appellant was charged with desertion and pleaded guilty to being absent without leave. That plea was accepted. While the appellant had in fact been absent between the 19th September, 1984 and the 13th February, 1992, he was treated as having pleaded guilty of an absence during the three years preceding his return.
The appellant's case was presented very thoroughly and ably by Mr. O'Reilly who left no stone unturned. The principal ground of appeal was that the appellant was not given the officer of his choice to defend him. He told Captain Dillon, the convening authority, that he wanted Captain Milner to defend him. Captain Dillon said he would check if he was available. There is a conflict between the appellant and Captain Dillon as to what happened next. The appellant claims that Captain Dillon told him on or about the 2nd March, 1992 that Captain Milner had consented to act for him. Captain Dillon says he simply told him that he would see if Captain Milner would be available on the 12th March, the day on which the Court-Martial was to be held.
It is not necessary to resolve this conflict. It is common case that on the 9th March, or some days before, Captain Dillon told the appellant that Captain Milner was not available. He also told the appellant he could have another officer or a solicitor. Captain Dillon suggested Captain White. The appellant asked Captain Dillon to ask Captain White if he would be willing to act for him. Captain Dillon did this and Captain White agreed.
On the 9th March, 1992 Captain Dillon served on the appellant a copy of the charge sheet and put to him certain questions required by the rules. One of these related to who he wished to instruct for his defence. The question was phrased as follows:-
"Do you wish to interview and instruct for the purpose of your defence:"
(a) A solicitor, if so, give his name and address?
(b) An officer, if so, give his name, rank and unit?
(c) Do you wish the convening authority to assign a suitable officer to defend you?"
By way of reply to this question the appellant gave the name of Captain White.
It was submitted on behalf of the appellant that the convening authority had been in breach of Art. 20, sub-Art. (3) of the Rules of Procedure (Defence Forces), 1954 ( S.I. No. 243 of1954) in regard to obtaining an officer for the applicant's defence. This sub-article provides as follows:-
"The officer who delivers to the accused the documents mentioned in paragraph (1) of this Rule shall, if necessary, read the charge-sheet and the summary or abstract of evidence to the accused and explain to him the charges and also as to his rights under these Rules as to preparing his defence and being represented at the trial, and shall ask him whether or not he wishes to have an officer assigned by the convening authority to represent him at the trial. If the accused wishes the...
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