Private Murphy

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1998 WJSC-CMAC 10572

THE COURTS-MARTIAL APPEAL COURT

Blayney J.

Lynch J.

Lavan J.

1CM/92

PRIVATE MURPHY

PRIVATE WILLIAM MURPHY

Appellant

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:

*

Blayney J.

1 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.

2 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.

3 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.

4 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.

5 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...