Re O'Kane

• Jurisdiction: Ireland
• Judge: O'Flaherty J
• Judgment Date: 29 July 1991
• Docket Number: 1991 No. 2CM
• Court: Courts-Martial Appeal Court
• Date: 29 July 1991

COURTS-MARTIAL APPEAL COURT

O'Flaherty J.

Barr J.

Morris J.

1991 No. 2CM

Private Gerard O'Kane

Appellant

1 Judgment of the Court (ex tempore) delivered on the 29th day of July 1991 by O'Flaherty J.

2 In this case the appellant was convicted before a limited Court-Martial on the 4th July, 1991 of desertion from the Defence Forces. His sentence was one of sixty days detention and to be discharged from the Defence Forces under s. 210 (1)(e) of the Defence Act, 1954. He has appealed to this Court on six grounds:-

• (1) That the Court-Martial erred in law in convicting the appellant of desertion contrary to s. 135 of the Defence Act, 1954, when there was no evidence to support such a conviction.

• (2) That the Court-Martial's decision to convict the appellant of desertion was against the weight of evidence.

• (3) That all relevant factors were not considered by the Court-Martial in particular the fact that the appellant was in St. Bricin's Hospital being treated for depression for the two weeks before he went absent without leave.

• (4) That the appellant's constitutional right to basic fairness of procedures was not respected or vindicated in the number of respects which are set out in the course of that particular ground.

• (5) That the Court-Martial was unsatisfactory.

• (6) That the sentence imposed was too severe in all the circumstances.

3 The appellant's application today is to have the operation of the sentence of detention suspended pending the hearing of the substantive appeal. That is provided for in s. 16 of the Courts-Martial Appeals Act, 1983. The section is clear that this Court has power to make that order. It does not hedge the jurisdiction in any way or set forth any qualifying circumstances. It is on such terms as the Court thinks proper. Mr. Matthews, for the convening authority, has argued that an analogy should be made with the cases where an applicant for leave to appeal before the Court of Criminal Appeal has to make out an arguable case in accordance with the decisions of that Court in The Attorney General v. Cashell and in The People (Attorney General) v. Hayden before leave to appeal can be granted and an applicant admitted to bail pending the hearing of the full appeal. This Court has not to decide whether that is a prerequisite or not. It seems to the Court that the section does not contain any qualification and neither do the rules made under the...