Trooper David Day
1998 WJSC-CMAC 6317
THE COURTS-MARTIAL APPEAL COURT
O'Flaherty J..
Budd J..
O'Donovan J.,
Citations:
CRIMINAL LAW ACT 1987
DEFENCE ACT 1954 S133
DEFENCE ACT 1954 S204
DEFENCE ACT 1954 S215
EAST DONEGAL CO-OP SOCIETY V AG 1970 IR 344
Appeal against conviction and sentence — Right to fair procedures — Time spent in a civilian prison is an additional aspect to his punishment.
The appellant appeared before a military courts- martial on a number of charges. He pleaded guilty to all of the charges but one and was found guilty of that charge. He appealed that conviction and the severity of the custodial sentence of 180 days in a civilian prison. The appellate court dismissed the appeal against conviction but allowed the appeal on severity of sentence as the appellant had underlying psychiatric problems. The court also held that time spent in a civilian prison was an additional humiliation to a military man.
Trooper David Day appeared before a limited Court-martial at Cathal Brugha Barracks, Dublin, on the 30th April, 1998. He was convicted on one charge in particular; and in respect of certain other charges he pleaded guilty. Trooper Day received a punishment of 180 days imprisonment in respect of all charges. The Criminal Law Act, 1987, provides that this sentence may be ordered to be served in a civilian prison. He is therefore serving his sentence in Mountjoy prison, which is itself an additional aspect to his punishment. It is one thing for a military man to serve a sentence in a military custody, but it is another thing entirely to serve a sentence in a civilian prison such as Mountjoy.
Trooper Day now appeals against his conviction on the charge in respect of which he was found guilty as well as in respect of the sentence of imprisonment.
To go through the several charges. The first charge was one of absence without leave to which he pleaded guilty. The second charge was disobedience to an order, to which he also pleaded guilty. The third and forth charges also alleged being absent without leave.
The most serious charge appears on the second charge sheet. It is alleged that on the 15th April, 1998, Trooper Day struck his superior officer, Commandant Oliver Barbour. The next charge was contrary to s. 133 of the Defence Act,1954. Trooper Day was threatening to do violence, and similarly with the other charges. There was also a charge of attempting to strike Sergeant Wynne which he was acquitted of by the Court-martial. The remaining charges have to do with escaping from custody and the final charge is of doing damage to a cell door in the sum of £14.30.
The facts of the matter are that Trooper Day was required to attend at St. Bricin's Hospital for examination by a psychiatrist. He was before his Commanding Officer, Commandant Barbour, at the time and he seemed to be in a very agitated condition. There was an attempt to reduce him to custody by Sergeant Wynne and there was quite an altercation. In the course of it, Commandant Barbour said he was struck by Trooper Day. When Trooper Day came to give an explanation before the Court-martial he said he had no recollection of striking the Commandant.
As regards the summing up, it is argued, that it was flawed. It is said that the Judge Advocate might not have explained the burden of proof adequately. We have carefully considered the summing up the Judge Advocate gave and we think that, far from being defective in any way, it is quite exemplary. It is true that at one...
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