Friday 28 October 2016

Air Corps officer launches High Court challenges in bid to stop court martial

Aodhan O'Faolain & Ray Managh

Published 10/04/2015 | 17:02

Comdt Nile (Niall Donohoe)
File pic taken in October 2009
Comdt Nile (Niall Donohoe) File pic taken in October 2009

An Air Corps officer has launched several High Court challenges aimed at preventing his court martial from going ahead.

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The actions have been brought by Commandant Nile (Niall) Donohoe (52) who is due to be tried before a military court at McKee Barracks, Dublin on Tuesday of next week (April 14th).

He is facing five charges of breaching military discipline and insubordination alleged to have occurred on dates between 2007 and 2008. He denies all the charges, and has brought three separate judicial review actions aimed at stopping his Court Martial from proceeding.

He also wants the charges pending before the Court Martial and any other charges pending against him dismissed.

His actions are against a number of parties including the Minister for Defence, Ireland and the Attorney General, Military Judge Col Micheal Campion, the Director of Military Prosecutions and the Defence Forces' Court Martial Administrator.  The Human Rights Commission is a proposed notice party to the actions.

In an ex-parte application, where only one side was present in court, Cdt Donohoe' lawyers sought various orders and declarations aimed at prohibiting his Court Martial, as well as orders dismissing all other outstanding charges against him.

Earlier today, Cdt Donohoe's barrister Derek Ryan Bl told a vacation sitting of the High Court the Court Martial should not be allowed proceed on several grounds.

These including there has been an inordinate, prejudicial and unjust delay by the prosecution in bringing the charges against Cdt Donohoe. The charges, counsel said, were all brought against his client in 2009 and related to events that allegedly occurred up to two years previously.

Counsel said it is also their case the seven person Court Martial Board or jury, made up of officers in the Defence Forces, due to consider the charges against Cdt Donohoe has not been properly constituted.

One member of the jury is scheduled to give evidence on behalf of the prosecution, while other jury members are in Cdt's Donohoe's chain of command, counsel said.

Under either the 1954 Defence Act or the 2008 Defence Force's Rules of Procedures witnesses or offices within the accused members chain of command cannot be included in the jury, counsel said. The jury had be selected on a random basis, but this has not been demonstrated, counsel added.

Further grounds advanced include that relevant materials have not been properly disclosed to his client during a pretrial hearing in advance of Cdt Donohoe's Court Martial. This counsel said was a breach of fair procedures.

Counsel also said that new and significant evidence had also given to the prosecution. Counsel said the new material was not properly reviewed and described the decision to continue to prosecute Cdt Donohoe as "reckless."

The applications came before Ms Justice Isobel Kennedy, who adjourned the matter. 

Given the proximity to the court martial the Judge put the matter back to next Monday so Cdt Donohoe's applications for permission to bring the challenges can be made in the presence of the other parties. 

Previously, in separate proceedings, Cdt Donohoe was found guilty and dismissed by a court martial in 2010 of calling his superior officer, Lieutenant Colonel Gerry O'Sullivan, an abusive name at Baldonnel on January 30th 2009. 

Cdt Donohoe, who denied the allegation, appealed that finding to the Court Martial Appeal Court which in 2012 overturned the decision to dismiss him.

The court martial was told he had said to Lieutenant Colonel O'Sullivan  "you're a little p****" or words to that effect after he was given a negative appraisal of his performance. Cdt Donohoe, a father of two,  claimed his comments had been misheard. He had used the words "a little prickly", he argued.

The Court Martial Appeal Court, made up of three civilian judges upheld his appeal because of the manner in which his original Court Martial was appointed. The appeal court found the Court Martial Administrator had acted beyond his powers.

The judges said the Administrator, in selecting the Board - the equivalent of a jury - had made his selection based on a rank structure which could have distorted the randomisation of jury selection.

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