Court of Appeal: Commandant’s conviction for prodding a superior officer in the chest upheld

About this case:

• Judgment:
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Delivering the judgment of the three-judge Court of Appeal, Mr Justice Edwards rejected all five grounds raised on the Commandant’s behalf, finding that the Court-Martial was satisfactory and his conviction safe.

Background

Commandant Nile Donohoe, an officer in the Permanent Defence Force, and attached to the Central Medical Unit (CMU) of the Defence Forces, appealed against his conviction at a General Court-Martial held at the Military Justice Centre at McKee Barracks, Dublin 7, on two charges namely:

Following his conviction, Commandant Donohoe was sentenced in respect of both charges to reduction to the fourth point of the pay scale for the rank of Commandant, and to a fine of an amount equal to 10 days’ pay.

The Director of Military Prosecutions brought a cross appeal in which he sought a review of the said sentence pursuant to s.2 of the Criminal Justice Act 1993 on the grounds that it was unduly lenient, however this was not dealt with in Justice Edward’s judgment

Court of Appeal

Commandant Donohoe’s original grounds were summarised as follows:

Eligibility and selection of Board Members

In relation to the allegation that the members of the board were ineligible or selected unlawfully, the Court dismissed this ground of appeal explaining that since these issues were raised by Commandant Donohoe in the trial, and were then dropped and not proceeded with, Commandant Donohoe could not then seek to raise those issues again on the appeal, as per The People (Director of Public Prosecutions) v Cronin (No 2) 4 I.R. 329.

Delay

While Commandant Donohoe raised culpable prosecutorial delay in the pre-trial hearings, he did not raise this in the course of his actual trial. As a matter of fact, counsel on his behalf stated that he would “be alleging statutory delay and failure to comply with the Act”.

Notably there was no request for the Military Judge to give a delay warning to the Board, and there was no evidence presented “at any stage of the trial” to suggest that Commandant Donohoe’s ability to respond to the charges was in any way compromised by reason of delay in the case.

In all the circumstances, the Court was satisfied that was no breach of European Convention on Human Rights Act 2003 on account of alleged delays.

Furthermore, in relation to the third ground of appeal, Justice Edwards was satisfied that there was no evidence to support the contention that the Director of Legal Services and the Director of Military Prosecutions acted in the trial in a manner which was incompatible with the European Convention on Human Rights Act 2003.

Prior involvement of the Director and conflict of interest

Rejecting the fourth ground of appeal, Justice Edwards described this as “a collateral attack on the decision to prosecute based upon… an allegation of conflict of interest and objective bias because the same person was appointed to both the role of Director of Legal Services and Director of Military Prosecutions”.

There was no evidence that the prosecuting authorities did not exercise their functions properly, independently and in accordance with statute.

Justice Edwards added that while the issues raised might have been capable “of judicial review or a plenary challenge to the enabling legislation”, they were not appropriate “in circumstances where no specific relevant action or ruling of the Military Judge” was being impugned. Consequently, the Court of Appeal did not have “jurisdiction to entertain the complaint”.

Alleged failure to preserve and disclose evidence

Rejecting the fifth and final ground of appeal, the Court was not satisfied that Commandant Donohoe engaged with the actual evidence adduced to say how evidence not disclosed or not preserved.

If there was an ongoing complaint about disclosure it should have been raised during the course of the trial; the failure to do was is not explained, and therefore Commandant Donohoe could not seek to argue non-disclosure on the appeal, as per The People (Director of Public Prosecutions) v Cronin (No 2) 4 I.R. 329

Dismissing the appeal, the Court was satisfied that Commandant Donohoe’s Court-Martial was satisfactory and his conviction safe.