An Army captain has appealed his conviction for sexually assaulting a female soldier at a military barracks four years ago, arguing that missing CCTV footage meant he was “robbed” of a possible line of defence.
The State has argued that CCTV footage could not add anything to the established facts and that the area of contention is “vanishingly tiny”.
Capt Ross O’Shea was found guilty by a general court martial in October 2022 of sexually assaulting a female noncommissioned officer (NCO) following a social function at a barracks in Leinster on June 25th, 2020.
He was tried in September 2022 before military judge Col Michael Campion and a court martial board.
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O’Shea 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 officers’ 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.
His dismissal was ordered as part of the sentence imposed on these two charges. O’Shea remains, pending appeal, a serving member of the Army.
The offences occurred when the appellant attended a barbecue hosted by the Covid Joint Task Force during lockdown amid the Covid-19 pandemic.
O’Shea had been brought to the officers’ 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 barbecue had earlier been held.
At the Court of Appeal on Tuesday, James Dwyer SC, for O’Shea, told the court these two charges are the subject of his appeal.
Counsel 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 He was convicted of two other charges and acquitted of a further seven charges, while four more were withdrawn during the trial.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 had potentially recorded what happened, but that this footage no longer existed by the time his client had come to court.
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 in which 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 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 Isobel Kennedy said the court would reserve judgment in the matter.
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