Courts Martial Appeal Court
| DOI | 10.1177/002201837203600304 |
| Published date | 01 July 1972 |
| Date | 01 July 1972 |
| Subject Matter | Article |
Courts Martial Appeal Court
VERDICT
UNSAFE AND UNSATISFACTORY
R. v.
Swabey
IN a court-martial held in
Malta
in 1956, Mr. Swabey was
found guilty on a charge of indecently assaulting asub-lieu-
tenant
during an evening ashore
and
on a further charge of
making
an
improper remark to a
junior
rating. He was sentenced
to be dismissed the service on both counts.
The
matter came
before
the
Courts-Martial Appeal
Court
on a reference from the
Secretary of State for Defence in 1972, having already gone
through
the
normal appellate procedure in 1956.
On
this later
occasion, the Court found
that
the
verdict was unsafe
and
unsatisfactory
and
quashed the conviction on the major count.
The
appellant's principal argument arose from the fact
that
this was not the first time he
had
been court martialled.
In
1950,
he
had
been charged with five offences alleging gross indecency.
Four
of the charges were dismissed, but, on the fifth, he was
convicted of conduct unbecoming the character
of
an officer. But
this conviction was subsequently set aside
and
he was re-instated
in the service.
On
the occasion of his being charged in 1956, his
previous court-martial appearance was not disclosed to the later
court.
In
1972, his counsel argued
that
this meant
that
he could
not explain to
the
court in 1956 why he
had
been so agitated
when he was accused by a
junior
officer of making homosexual
advances to him.
In
the result he
had
to agree, without any
explanation, to the court-martial's suggestion
that
he
had
told
the
officer to whom he was alleged to have
made
the advances
that
if
he withdrew the allegations the
matter
need go no further.
This was obviously an important
matter
at the trial, for the
judge
advocate directed the court
that
only
matter
relating to the
appellant's conduct could corroborate the evidence of the officer
who alleged
that
he
had
been assaulted.
Areference by
the
Secretary of State to the Court can be
made
under
s.34 of the Courts-Martial (Appeals) Act 1968 only
if (a) a special point of law is involved, or (b) there was some
matter
which
had
not been brought to the notice of the court-
martial.
In
R. v.
Swabey
(3
May
1972), the Secretary
of
State
174
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