Court of Appeal upholds conviction of sexual assault by court martial

About this case:

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Ronan Donaghy had been in the Defence Forces for 21 years, and along with Ms C, was stationed at Aiken Barracks, Co. Louth in October 2013.

He had been convicted by court martial in 2015 of six offences made by Ms C, namely that he had carried out conduct to the prejudice of good order and discipline contrary to s. 168 of the Defence Act 1954, by entering the female changing room and changing room, sauna and shower and refusing to leave when requested, and by exposing his genitals to Ms C.

He was also found guilty of sexual assault, by entering the shower cubicle in a state of undress, causing Ms C to apprehend an assault.

In aggregate, the appellant was fined €1,750 in total, was detained for a period of four weeks (with a further eight weeks suspended), was demoted from the rank of Corporal to Private and was discharged from the Defence Forces.

He appealed both conviction and sentence.

His appeal related to two aspects of the trial. First, handwritten notes made by the complainant after she had returned home on the evening of the offences were not made available to the appellant.

Second, he contended that the military judge erred in failing to direct an acquittal on count no. 5 (sexual assault) at the direction stage of the case in circumstances where, he contends, the offence of sexual assault was not made out.

In relation to the first issue, the Court noted that at no stage during the pre-trial hearing had a request been made for the handwritten notes, which had been replicated in a typed version made available to the appellant.

However, at trial counsel for the appellant argued that those typed notes should be inadmissible, while the prosecution sought to admit them under the doctrine of recent complaint.

The military court considered whether the absence of the original note prevented a fair trial or the possibility of a fair trial, citing the case ofDawson v. The Irish Brokers Association 1998 which stated that “The question of having a jury discharged because something is said in opening a case or some inadmissible evidence gets in should be a remedy of the very last resort and only to be accomplished in the most extreme circumstances.”

The court concluded that it was not satisfied that there was a real risk of an unfair trial.

The appellant also took issue with the judge’s charge, in which he mentioned the existence of the handwritten note, but didn’t mention the subsequent shredding and the fact that if they have any doubt then the accused should be given the benefit of that doubt.

On appeal, the Court cited The People (DPP) v. McKevitt IESC 51, which stated that an appeal court must consider:

“whether, having regard to the alleged non-disclosure, there was in fact a degree of unfairness which rendered the conviction unsafe using that expression in a general sense. It is, therefore, no longer a question of a risk for the future, rather it is a question of looking at what in fact has happened and assessing whether there has been an unsafe conviction having regard only to an alleged unfairness of trial.”

The Court observed that while ideally the handwritten notes ought to have been preserved and disclosed, it was never suggested that the failure to disclose the handwritten notes arose as a result of any decision made on the part of the prosecution to withhold them or that the prosecution had not been fulsome in relation to their disclosure responsibilities.

Further, the Court observed that the military judge took care to mention the controversy in relation to the missing handwritten notes. He mentioned the circumstances in which they had arisen and the circumstances of their destruction according to the evidence of the complainant.

This was found to be completely adequate, and the Court of Appeal therefore dismissed the appellant’s grounds of appeal in relation to the handwritten notes.

In relation to the failure to grant a direction on the sexual assault count, the Court noted that section 2(1) of the Criminal Law (Rape) (Amendment) Act 1990 defines the offence of indecent assault in the following terms:“… he offence of indecent assault upon any female person shall be known as sexual assault”.

The appellant argued that the apprehension of an assault does not amount to “assault” for the purposes of the offence of sexual assault on the basis of the evidence in the case.

The military judge had correctly described indecent assault as an assault accompanied by circumstances which are objectively indecent, and that it was a matter for the jury to decide whether there was indecency in the circumstances of this incident.

The appellant maintained that the learned military judge failed to give the jury adequate guidance as to what amounts to an assault, and particularly what might amount to a sexual assault.

The Court of Appeal noted that s.2 of the Non Fatal Offences Against the Person Act 1997, provides that the offence of assault takes place when one person “causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact . .”

The Court noted that the complainant had made clear to the appellant that she found his behavior objectionable.

In this context, the act of entering the shower cubicle, where the complainant was undressed, and undressing himself, became offensive and indecent and was capable of causing a person to become fearful of a physical or sexual attack.

The Court was satisfied that it was for the jury to determine whether the events constituted a sexual offence, and that the military judge had adequately charged the jury.

Accordingly, that ground must also fail.