The actions have been brought by Commandant Nile (Niall) Donohoe, aged 52, who is due to be tried before a military court at McKee Barracks, Dublin, on Tuesday.
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 defence minister, Ireland, the attorney general, military judge Colonel Micheal Campion, the Director of Military Prosecutions, and the Defence Forces’ Court Martial Administrator. The Human Rights Commission is a proposed notice party.
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In an ex parte application (only one side present in court), Cmdt Donohoe’s lawyers sought various orders and declarations aimed at prohibiting his court martial, as well as orders dismissing all other outstanding charges against him.
Barrister Derek Ryan told a vacation sitting of the High Court yesterday that the court martial should not be allowed proceed on several grounds.
These include an inordinate, prejudicial, and unjust delay by the prosecution in bringing the charges against Cmdt Donohoe.
The charges, Mr Ryan said, were all brought against his client in 2009 and related to events that allegedly occurred up to two years previously.
Mr Ryan claimed the seven-person Court Martial Board or jury due to consider the charges against Cmdt Donohoe has not been properly constituted. The jury is made up of officers in the Defence Forces.
One member of the jury is scheduled to give evidence on behalf of the prosecution, while other jury members are in Cmdt Donohoe’s chain of command, Mr Ryan said.
Under either the 1954 Defence Act or the 2008 Defence Force’s Rules of Procedures, witnesses or offices within the accused member’s chain of command cannot be included in the jury, Mr Ryan said. The jury was 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 pre-trial hearing. This, Mr Ryan said, was a breach of fair procedures.
Mr Ryan added that new and significant evidence had been given to the prosecution. He said the new material was not properly reviewed and described the decision to continue to prosecute Cmdt Donohoe as “reckless”.
The applications came before Ms Justice Isobel Kennedy, who adjourned the matter to Monday so the
applications for permission to bring the challenges can be made in the presence of the other parties.
In separate proceedings in 2010, Cmdt Donohoe was found guilty and dismissed by a court martial for calling his superior officer, Lieutenant Colonel Gerry O’Sullivan, an abusive name at Baldonnel on January 30, 2009.
Cmdt Donohoe, who denied the allegation, appealed against 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 Lt Col O’Sullivan “you’re a little prick”, or words to that effect, after he was given a negative appraisal of his performance.
Cmdt Donohoe, a father of two, claimed his comments had been misheard. He had used the words “a little prickly”, he argued.
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