Ex-soldier found guilty of sexual assault in barracks shower must wait to hear outcome of appeal
Published 11/05/2016 | 18:08
An ex-soldier found guilty by a military court of sexual assault in the gym of a barracks must wait to hear the outcome of his appeal.
The 42-year-old, who cannot be identified to protect the victim's identity, had denied a charge of sexual assualt and four charges of conduct contrary to good order and discipline at Aiken Barracks, Dundalk, Co Louth on October 30, 2013.
He was convicted by a board of Defence Force members and the penalties imposed by Military Judge Colonel Michael Campion ranged from fines to detention and discharge.
Opening an appeal today his barrister, Roderick O'Hanlon SC, outlined a summary of events which gave rise to the case.
The complainant, a member of the Military Police, had enquired about a sauna in the gym at Aiken Barracks and she was told by the man that he would require advance notice. When she went in to the sauna, he also went in wearing only a towel. She asked him to leave but he didn't.
She alleged that she went into the women's shower and that he followed her. She apprehended that she was about to be sexually assaulted.
As she exited the shower her arm brushed against his side.
Counsel for the Director of Military Prosecutions, Remy Farrell SC, told the court the complainant had said she already felt violated by him entering the women's shower and she didn't know where this was going.
Any man that comes into a woman in a shower cubicle, is not coming in for the purpose of conversation, the complainant stated, according to Mr Farrell.
Mr O'Hanlon said it became clear during the trial that the complainant had made handwritten notes of the incident that evening but they weren't disclosed to the defendant and it was asserted by her that they were shredded
It was more than missing evidence, Mr O'Hanlon submitted. The notes were shredded, destroyed and never presented to the prosecutor.
The defence lost an opportunity to test her credibility and identify a pattern of exaggeration.
The description of the assault initially would not have probably constituted an assault at all, Mr O'Hanlon submitted, and the prosecution ought to have enquired whether something that wasn't an assault was exaggerated into an assault.
Mr Farrell, for the DMP, said the typed notes which were made available to the defence were substantially a copy of the handwritten notes. She said that in evidence and she wasn't cross examined on it, Mr Farrell said.
He said the entirety of the appeal was predicated on a misunderstanding - the idea that handwritten notes were handed into the military police and shredded - that was introduced by a question under cross examination.
In relation to whether what happened constituted a sexual assault, Mr Farrell said context was everything and he recited what the complainant had said about a man walking into a women's shower cubicle.
Was it seriously being contended, Mr Farrell asked, that an immediate application of sexial violence could not be inferred.
Mr Justice Garrett Sheehan, who sat with Mr Justice Alan Mahon and Mr Justice John Edwards, said the court would reserve judgment.