An army captain who sexually assaulted a female soldier at a military barracks four years ago has had his conviction upheld after the Court of Appeal found that missing CCTV footage, if it ever existed, could not be classified as a “realistic line of defence”.
In dismissing all grounds of Captain Ross O’Shea’s appeal on Tuesday, the three-judge court found it was “questionable” whether video recordings would have assisted in interpreting what was occurring, had these events even been captured, and said it was “fanciful” to suggest that the injured party’s credibility would be damaged by any discrepancies in evidence established by the recordings.
Captain O’Shea was found guilty by a General Court Martial in October 2022 of sexually assaulting a female non-commissioned officer (NCO) following a social function at a barracks in Leinster on June 25th, 2020.
The army captain had argued that missing CCTV footage meant he was “robbed” of a possible line of defence.
Counsel for the Director of Military Prosecutions (DMP) maintained that CCTV footage could not add anything to the established facts and that the area of contention was “vanishingly tiny”.
O’Shea was tried in September 2022 before Military Judge Colonel Michael Campion and a court-martial board.
The army captain was convicted on October 14th, 2022 of sexually assaulting the woman by moving his open palms up and down her back saying “come on, come on” or words to that effect at the Officer’s Mess.
He was also found guilty of one charge of assault against the same officer, contrary to Section 2 of the Non-Fatal Offences Against the Person Act 1997, by moving towards her in a manner that caused her to apprehend an assault.
A custodial sentence of six months was imposed, but this was suspended for a period of one year.
His dismissal was ordered as part of the sentence imposed on these two charges. However, he has remained, pending appeal, a serving member of the army.
Delivering judgement at the three-judge Court of Appeal on Tuesday, Ms Justice Tara Burns said the missing CCTV footage, if it ever existed, could not be classified as the loss of a “realistic line of defence” having regard to “what it might reasonably have been expected to depict and having regard to the other evidence in the case”.
Dismissing all grounds of appeal, Ms Justice Burns, sitting with Ms Justice Isobel Kennedy and Mr Justice Michael MacGrath, said the mechanics of the sexual assault and the Section 2 assault – referred to by the judge as a psychological assault - rendered it “questionable” that the CCTV would have assisted in interpreting what was occurring, had these events even been captured.
“In circumstances where the appellant accepted that he had put his arms around [the woman], the sexual assault involved him moving his hands up and down her back, uttering words to her and pulling her against him,” said the judge.
“The movement of his hands up and down her back would not be captured if his back was to the camera, the words uttered would not be recorded, and it is implausible that the detail of pulling her towards him could be interpreted as such in light of him having his arms around her and the distance of the recording.”
With respect to the psychological assault, in which O’Shea moved towards the woman, causing her to apprehend a further assault, the judge said: “Realistically, this is not something which CCTV footage, at such a distance, could assist with.”
The offences occurred when the appellant attended a barbeque hosted by the Covid Joint Task Force during a lockdown period in the Covid-19 pandemic.
Captain O’Shea had been brought to the Officer’s Mess by two female NCOs after he had been found asleep and in a state of inebriation sitting in a chair outside a gymnasium where the barbeque had earlier been held.
At his appeal hearing, James Dwyer SC for O’Shea, argued that missing CCTV footage which may have captured the incident meant his client was “robbed of the opportunity” of a particular line of defence.
O’Shea was charged and tried before the Court Martial with a total of 18 offences.
He pleaded guilty to five charges, including charges of conduct contrary to good order and two charges of assault against the two female NCO officers contrary to Section 2 of the Non-Fatal Offences Against the Person Act 1997. He was convicted of two other charges and acquitted of a further seven charges, while four more were withdrawn during the trial.
Mr Dwyer told the three-judge Court of Appeal that there was evidence of a camera which potentially recorded what happened but that this footage no longer existed by the time his client came to court.
He said the footage was never sought out and preserved and that the lost evidence denied Captain O’Shea a potentially useful line of defence.
Counsel said there were discrepancies in some of the prosecution evidence, including whether the complainant and O’Shea went into the officer’s mess together or whether she proceeded ahead and whether the door to the area where the offences occurred was open or closed at the time.
He said there was also an issue in relation to evidence given by the complainant that another junior officer in the area at the time may have been smoking.
Dismissing this ground of appeal, Ms Justice Tara Burns said it was “fanciful” to suggest that the injured party’s credibility would be damaged to such an extent if the CCTV established that one of the lieutenants was smoking or that she was incorrect about walking up the stairs before the appellant having regard to the other evidence called from both lieutenants and the duty driver.
Remy Farrell SC, for the Director of Military Prosecutions (DMP), said it was accepted as a matter of fact that the appellant had a physical interaction with the complainant where he essentially hugged her.
“What conceivably could CCTV add to that?” he said, adding that the area of contention was “vanishingly tiny”.
Mr Farrell said it was “wholly unreasonable” to suggest there was a “significant lost opportunity” in respect of the CCTV evidence.
He said Captain O’Shea accepted that he had his arms around the complainant, so even if “by some extraordinary circumstance” a CCTV with a zoom lens was trained on the situation, what was relevant was what happened behind her.
Ms Justice Burns said the court had not upheld any of the appellant’s grounds of appeal, and in those circumstances his appeal against conviction was dismissed.
A barrister for O’Shea said submissions are being filed on his sentence appeal and asked that it be listed before the court at a future date.
Ms Justice Kennedy said the court would adjourn the matter to the next list to fix dates.
If you have been affected by any of the issues raised in this article, you can call the national 24-hour Rape Crisis Helpline at 1800-77 8888, access text service and webchat options at drcc.ie/services/helpline/ or visit Rape Crisis Help. In the case of an emergency, always dial 999/112.
