Sergeant O'Mahoney

• Jurisdiction: Ireland
• Judge: O'Flaherty J.
• Judgment Date: 24 February 1997
• Neutral Citation: 1998 WJSC-CMAC 11585
• Docket Number: (2cm/96)
• Court: Courts-Martial Appeal Court
• Date: 24 February 1997

1998 WJSC-CMAC 11585

THE COURTS-MARTIAL APPEAL COURT

O'Flaherty J.,

Moriarty J.,

Kelly J.,

(2cm/96)

SERGEANT O'MAHONEY

AN CH ÚIRT ACHOMHAIRC ARM-CHUIRTEANNA

SERGEANT DENIS O'MAHONY

Appellant

Citations:

DEFENCE ACTS 1954 – 1990 S131

DEFENCE FORCE REGS A.18 REG 24(a)

O'Flaherty J.

[NEM DISS]

1 This is an appeal brought on behalf of Sergeant O'Mahony from the verdict reached by a limited court-martial which was held in Collin's Barracks, Cork, on the 19th October, 1995, the date of promulgation of which was the 26th January, 1996.

2 The offence charged was that Sergeant O'Mahony disobeyed a lawful order of a superior officer contrary to s.131 of the Defence Acts,1954to 1990.It is stated that Sergeant O'Mahony, having been detailed on 16th March, 1995, by Captain M. Doyle, Southern Command Headquarters, to attend a volleyball championship at the Curragh Camp, Co. Kildare, on the 24th March, 1995, did not do so.

3 The wording of s. 131 of the Defence Act is as follows:-

"Every person subject to military law who disobeys a lawful command of a superior officer is guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer penal servitude or any less punishment awardable by a court-martial."

4 The words that have to be emphasised are "who disobeys the command ofa superior officer" - not of his immediate superior officer but of a superior officer. He was found guilty of the offence and was fined the sum of £190.

5 Four points have been taken before us. The first, which the Court regards as the substantial one, is that there was not a proper line of command as regards the transmission of the request. He was told, to use a neutral term for the moment, that he should present himself at the volleyball championship. Then there was objection made to the President of the court-martial which was disallowed. There is fault found with the Judge-Advocate's summing up in rather broad terms. The fourth point is that this was such a minor infraction, if it was an infraction, that it should have been dealt with as an administrative matter. It did not justify the invocation of the full paraphernalia of a court-martial to try this matter as a criminal offence, an offence in the criminal mould against military law. These are the four points.

6 Dealing with the first point, Sergeant O'Mahony is attached to the first Field Supply and Transport Company and for the time being as far as the matters in issue are concerned, he was attached to the First Field Artillery Regiment. The point that is taken in regard to that by Mr. Humphrey is to say that under Regulation 24(a) of the Defence Forces Regulations A.18 which bear the date 28th September, 1955, it is provided as follows:-

"An officer or man attached to a staff or unit shall be deemed for the period of such attachment, to belong to such staff or unit."

7 In applying that to the facts of this case, his immediate relevant Commanding Officers in that regard were Captain Connolly and Captain Baston. The first point that is made is that Captain Doyle in issuing the command should have communicated the command to one of these officers and that this did not happen. To set further factual background to the matter however, Captain Doyle is a Staff Officer with the Southern Command and he appears to have an overall role in co-ordinating all sports activities in the command and to have contact and dialogue with the various representatives of the different sports. He arranged for the meeting on the 16th March and which Sergeant O'Mahony attended. They were arranging a volleyball competition that would be held in the Curragh on the 24th...