1998 WJSC-CMAC 10722
COURTS-MARTIAL APPEAL COURT
DEFENCE ACT 1954
Words & Phrases:
In this case Private Nagle faced two charges. The first was a charge of desertion of which he was acquitted. He was found guilty of the lesser charge of being absent without leave from the 17th January,1988 to the 28th November,1990. His sentence was to be discharged from the Defence Forces. In fact it emerges he was absent without leave for longer than that but under the Defence Act,1954it is only permissible to take account of the period of three years terminating on the date of the actual hearing by the Court-Martial. That was what the Court-Martial was directed by the judge advocate to have regard to and in the same way that is the period that we should have regard to but, having said that, the period in respect of which he was found guilty is without any doubt a very substantial length of time.
Mr. Matthews for the Convening Authority in his very fair submissions to this Court has made the point that really the army authorities could not be expected to condone that and that they had regard to everything that was urged on the appellant's behalf as regards his family situation. At the same time Mr. Matthews conceded that the situation of this man is unique. One knows that marital problems of one from or another are not unique to army life but nonetheless each individual is afflicted in his own way by what may happen as a result of the break-up of his marriage. It would appear that the appellant had a very loving relationship with his wife and during a time when he was serving his country abroad on two different occasions, unfortunately, it appears that she set up a relationship with another man. That must have been bruising and hurtful and traumatic for him. He has said so in the course of his trial and it has been said on his behalf in the course of his appeal against sentence. If he simply went to London and worked on the buildings and perhaps then thought it more advantageous to come back to the army his application would be without merit and we could not condone it.
As has been said, this Court is not entitled to substitute its discretion for the discretion of the Court-Martial. Yet our obligation is to look at the situation of the particular appellant and to say that it does appear that the...
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