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19 1983

COURTS-MARTIAL APPEALS ACT, 1983

PART II

Courts-Martial Appeal Court

Establishment and constitution of the Courts-Martial Appeal Court.

9. —(1) A Court of Appeal, which shall be called An Chúirt Achomhairc Armchúirteanna (The Courts-Martial Appeal Court) and is referred to in this Act as “the Court”, is hereby established.

(2) For the purpose of hearing and determining any particular appeal cognisable by the Court, the Court shall be summoned in accordance with directions to be given by the Chief Justice, and the Court shall be duly constituted if it consists of not less than three judges—

(a) of whom one shall be either—

(i) the Chief Justice, or

(ii) an ordinary judge of the Supreme Court nominated by the Chief Justice, and

(b) of whom the other two shall be either—

(i) two ordinary judges of the High Court nominated by the Chief Justice, or

(ii) the President of the High Court, if nominated by the Chief Justice and willing to act, and one ordinary judge of the High Court nominated by the Chief Justice,

but any other available judge or judges of the Supreme Court or the High Court may, at the request of the Chief Justice, attend as a member or members of the Court.

Court to be a superior court of record, etc.

10. —The Court shall be a superior court of record and shall, for the purposes and subject to the provisions of this Part of this Act, have full power to determine any questions necessary to be determined for the purpose of doing justice in the case before it.

Registrar of the Court.

11. —(1) The Registrar of the Supreme Court shall act as Registrar of the Court and shall perform and fulfil in relation to the Court all such duties and functions as are usually performed and fulfilled by the registrar of a court, and shall also have and exercise such powers and authorities and perform and fulfil such duties and functions as shall from time to time be assigned to him by statute or by rule of court under section 23 of this Act.

(2) The Registrar of the Supreme Court shall be subject to the directions of the Chief Justice in regard to all matters relating to the conduct of that part of the business of the Court which is for the time being required by law to be transacted by or before one or more of the judges of the Court.

(3) The business of the Court (except such business as is for the time being required by law to be transacted by or before one or more of the judges of the Court) shall be transacted in the Office of the Registrar of the Supreme Court.

Sittings and procedure of the Court.

12.—(1) The Court shall sit in Dublin except in cases where the Chief Justice gives special directions that it shall sit elsewhere.

(2) The President of the Court shall be such member present as shall be entitled to precedence over the other members, and the determination of all questions before the Court shall be according to the opinion of the majority of the members present but, unless the Court directs to the contrary, the judgment of the Court shall be pronounced by the President of the Court, or by such other member of the Court as the President directs, and no judgment with respect to the determination of any question shall be separately pronounced by any other member of the Court.

Right of appeal to the Court.

13. —A person convicted by a court-martial may appeal to the Court against the finding or sentence (when confirmed) of the court-martial or against both such finding and such sentence.

Appeal to the Supreme Court.

14. —(1) The determination by the Court of any appeal or other matter which it has power to determine shall be final, and no appeal shall lie from the Court to the Supreme Court, unless the Court or the Attorney General shall certify that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal by the person convicted should be taken to the Supreme Court, in which case an appeal may be brought by him to the Supreme Court, the decision of which shall be final and conclusive.

(2) Where, on a question of law, an appeal to the Court is decided in favour of the appellant, the respondent to the appeal may, without prejudice to the decision in favour of the appellant, refer the question of law to the Supreme Court for determination.

(3) The statement of the question of law to be referred to the Supreme Court under subsection (2) of this section shall be settled by the Attorney General.

(4) The Supreme Court shall assign counsel to argue in support of the decision referred to in subsection (2) of this section.

Interlocutory applications.

15. —Where a person convicted by a court-martial appeals to the Court, any interlocutory application in relation to the appeal may be heard and determined by the Chief Justice or by any judge of the Supreme Court nominated by the Chief Justice for that purpose.

Consequential orders of the Court.

16. —Where a person convicted by a court-martial gives notice of appeal to the Court, the Court shall have power to make all consequential orders it may think fit, including—

(a) in the case of an appellant who is a member of the Defence Forces, an order suspending the operation of a sentence of penal servitude, imprisonment or detention pending the determination of the appeal, and

(b) in the case of an appellant who is not a member of the Defence Forces, an order admitting the appellant to bail on such terms as the Court thinks proper pending the determination of the appeal.

Hearing of appeal by the Court.

17. —(1) An appeal to the Court shall be heard and determined by the Court on the proceedings of the trial of the appellant, with power to the Court to hear new or additional evidence and to refer any matter for report by the president or the judge-advocate of the court-martial by which the appellant was tried.

(2) Where the Court is satisfied that the obtaining of a report from the president of the court-martial is impracticable or would involve undue delay, it may refer the matter for report by any other member of the court-martial.

Jurisdiction of the Court.

18. —(1) The Court shall have jurisdiction to affirm or to reverse the conviction in whole or in part, and to remit, or to reduce, or to increase or otherwise vary the sentence, and generally to make such order, including any order as to costs, as may be necessary for the purpose of doing justice in the case before the Court.

(2) The Court may, notwithstanding that it is of opinion that a point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred.

(3) Where the Court reverses a conviction in whole, the Court shall have jurisdiction to make an order authorising the person in respect of whom the conviction was obtained to be re-tried for the same offence as that which was the subject of the conviction and shall order that the costs of the appeal and of the new trial of the accused person shall be paid by the State, unless the Court shall be of opinion that the necessity for the appeal and the new trial has been caused or contributed to by the defence.

(4) Whenever an order for a re-trial is made under this section, the person in respect of whose conviction the order was made may, notwithstanding anything in the Act of 1954 or any rule of law, be again charged and tried and, if found guilty, sentenced for the offence which was the subject of the conviction.

Finding of guilty but insane.

19. —If on any appeal it appears to the Court that, although the appellant did the act or made the omission charged against him, he was insane at the time when the act was done or the omission was made so as not to be responsible according to law for the act or omission, the Court may quash the sentence passed at the trial and order the appellant to be kept in custody in like manner as if the case had been determined by the Court of Criminal Appeal on appeal from a conviction on indictment.

Convictions and sentences of the Court, etc.

20. —(1) Where on any appeal the Court substitutes a conviction of a different offence or substitutes a different sentence, that conviction or sentence shall, for the purposes of the Defence Acts, 1954 to 1979, and any instrument made thereunder, be deemed to be a duly confirmed finding or sentence of a court-martial.

(2) Notwithstanding section 206 of the Act of 1954, the Court may by order provide for the date on which a sentence substituted by it, or passed by a court-martial and not varied by the Court, shall commence or take effect.

Postponement of execution of sentence of death.

21. —In the case of a sentence of death passed by a court-martial—

(a) the sentence shall not in any case be executed until after the expiration of the time within which notice of appeal to the Court may be given in accordance with rules of court, and

(b) if such notice is so given, the appeal shall be heard and determined with as much expedition as practicable, and the sentence shall not be executed until after the determination of the appeal.

Defence of appeal.

22. —The defence of an appeal under this Part of this Act shall be undertaken by the person who convened the court-martial by which the appellant was tried or by his successor in office duly empowered to convene courts-martial.

Rules of court.

23. —The Superior Courts Rules Committee shall, with the concurrence of the Minister for Justice, make rules of court for the purposes of this Part of this Act.

Application of Part II .

24. —The provisions of this Part of this Act shall have effect in relation to convictions by courts-martial of which the findings are or were promulgated on or after such day (whether before or after the passing of this Act) as the Minister may fix by order under this section.