Court of Appeal dismisses appeal where military judge correctly admitted rebuttal psychiatric evidence and excluded unproven photos.

An Chúirt Achomhairc Choiriúil

The Court of Appeal

Bill number LCM2022/001 Neutral Citation Number: [2025] IECA 263

Charleton J Edwards J McCarthy J

Between

The Director of Military Prosecutions Respondent

AND

RM Appellant Judgment of Court delivered by Mr Justice Charleton, 7 November 2025

1. The appellant, RM, is appealing against his conviction by court martial on 18 April 2024 of seven offences which arose whilst the appellant and the respective complainants, all members of the Irish Defence Forces, were on active duty as part of a peacekeeping mission abroad. Due to the sensitive nature of the offences, and safety concerns relating to the disclosure of details of missions, having regard to the fact that the complainants continue to serve in the Defence Forces, details as to names and locations will be omitted from this judgment. The offences relate to disorderly conduct contrary to the Defence Act 1954 (the “1954 Act”), and sexual assault contrary to s 2 of the Criminal Law (Rape) (Amendment) Act 1990 (the “1990 Act”). A sentence of three six-month suspended sentences was imposed for one year on condition of keeping the peace and good behaviour, as well as fines which amounted to a cumulative amount of €5,100, and three severe reprimands. Five days of detention was also imposed on one count.

2. At his trial, the appellant argued that, at the time the offences were committed, he was suffering from a mental disorder, namely a concussion-induced state of disassociation, arguing the defence of insanity under s 203 of the 1954 Act. After the prosecution presented its case, the defence called its own expert witness to support an insanity defence based on a concussion, which was then rebutted by the prosecution, after the close of its case, with further psychiatric evidence in response to this. The appellant now argues that the trial judge erred in allowing this rebuttal psychiatric evidence after the close of the prosecution’s case, as the evidence, it is argued, was not relevant to the fact in issue. The appellant also argues that the trial judge erred in excluding photographic evidence of his injuries, the cumulative effect of which, it is argued, constituted a breach of the appellant’s right to fair procedures at his trial.

3. The facts of this case involved the appellant, working at the time for the Defence Forces, and two medics, who will be referred to as Complainant 1 and Complainant 2. Whilst on service overseas, one night, the appellant consumed a bottle of vodka with a colleague of his, first in the unit’s canteen and thereafter in the appellant’s room. The men became involved in an altercation in the bedroom. Another individual on site heard noise from the appellant’s room, whereupon he informed the military police and the medics on call of the disagreement.

Someone else also witnessed the altercation between the appellant and his colleague. A female medic, Complainant 1, arrived to attend to the appellant in his room. During her examination, the appellant repeated the phrase “one time in band camp” an innuendo from the movie American Pie, whilst placing and sliding his hands up her legs twice, near to her groin area. A member of the military police then aided the complainant in escorting the appellant to the “MAP” or the Medical Aid Post. The appellant was given a bed. The complainant then became occupied with another patient, and she asked the ward master, Complainant 2, to look after the appellant.

As the appellant was in a state of agitation, Complainant 2 attempted to calm him down, however the appellant stood up, wrapped his arms around him in a hug and attempted to kiss him, again repeating the same references to “band camp”. The appellant made further attempts to hug him after this. The appellant then stood and began to try to leave the Medical Aid Post. Being the only medic left on the ward and without further assistance, he obliged and attempted to escort the appellant back to his room, knowing he would have more assistance from Complainant 1 and members of the Military Police (“MP”) there.

Upon arrival back to the appellant’s room the appellant made a gesture simulating oral sex on a penis to one of the members of the MP present. The appellant was then escorted back to the MAP by a member of the MP, and the two complainants. Complainant 1 again tried to convince the appellant to stay in his bed and to relax. When left alone in the room with him, she was again sexually assaulted by the appellant who placed his hand on her thigh near her groin area, pulled her onto to the bed onto his body, and attempted to move his head to her neck, making her believe he was going to bite her.

The appellant insisted he wished to return to his room, and on the walk back in the company of the first complainant, he tugged at his underwear and made a motion to pull it down.

4. The counts and the respective sentences imposed were as follows. Guilty pleas were entered for counts 5,11, and 17 which all related to inappropriate or disorderly conduct under s 168(1) and s

142 of the 1954 Act, for which an accumulated fine of €900 was imposed as well as two reprimands and 5 days detention. The appellant was then convicted on the following counts:

• Count 1 relating to the possession of alcohol in a non-designated area contrary to s 168(1)

of the 1954 Act, leading to the imposition of a fine of €350 and severe reprimand.

• Count 2 relating to the leg touching contrary to s 2 of the 1990 Act leading to the imposition of a 6-month suspended sentence and a fine amounting to €1,250.

• Count 7 relating to the hugging and attempted kissing contrary to s 2 of the 1990 Act leading to the imposition of a 6-month suspended sentence and €1,250 fine.

• Count 10 relating to the gesture simulating oral sex, contrary to Section 168(1) of the 1954 Act leading to a fine of €200 and a reprimand.

• Count 12 relating to the touching of the inner leg of the complainant by the appellant contrary to s 2 of the 1990 Act leading to the imposition of a 6-month suspended sentence and €500 fine.

• Count 13 relating to the pulling of the complainant by the appellant on top of him contrary to s 2 of the Non-Fatal Offences Against the Person Act 1997 leading to a fine of €400 and a severe reprimand.

• Count 16 relating to the pulling of the complainant’s arm contrary to 2 of the Non-Fatal Offences Against the Person Act 1997 leading to a fine of €250 and a reprimand.

5. Overall, the sentences resulted in 5 days detention, a fine totalling €5,100, multiple reprimands, including severe reprimands, and three 6-month sentences suspended for one year on condition of keeping the peace and good behaviour. The appellant appeals against these convictions.

The grounds of appeal

6. Two main grounds of appeal have been advanced before this Court. The first pertained to the admission of certain expert witness evidence. As the defence of insanity was central to the case, a number of medical reports were prepared in advance of the trial. An initial report was prepared on behalf of the defence by a Dr JH, a psychotherapist and counsellor. Dr JH in his report opined that the appellant suffered from acute distress disorder with a dissociative state following the altercation between him and his colleague, and acute alcohol intoxication. Dr JH was ultimately not called as a witness. A second report was produced by a Dr PO’C, a consultant psychiatrist on behalf of the prosecution. His report was made in response to Dr JH’s report, and so focused on dissociative amnesia and other psychiatric explanations. The report concluded that there was no evidence of a mental disorder under s 203 of the 1954 Act, and that intoxication was the most plausible explanation. A report was then prepared by Professor PC, a professor of psychiatry and consultant liaison psychiatrist, on behalf of the prosecution, who was ultimately called by the prosecution to give evidence at trial. Her main conclusion was that there were “two elements at work” in determining the cause of the appellant’s behaviour. Those elements were firstly alcohol intoxication, and secondly, a concussion, leading to amnesia after being hit on the head and or face. Professor PC did not make a clear finding as to which of the two elements could have overshadowed the other to lead to the “sexualised language and touching” in which the appellant engaged. The prosecution then called Professor JR, a consultant in emergency medicine, to rebut Professor PC’s findings. Upon reviewing Professor PC’s report and medical documentation, he concluded that the amnesia and behavioural changes were more likely due to alcohol intoxication than a concussion, finding that the injuries were minor and not consistent with significant brain trauma.

7. The evidence in issue on this appeal is that of Dr PO’C’s, made in response to Dr JH’s report. The objection to Dr PO’C’s evidence is grounded in relevance. It is argued that the defence case put in issue was not what occurred on the night in question, but rather the cause of the appellant’s behaviour. This was done through Professor PC, who opined that on balance, a concussion resulting from an injury to the head was the likely cause for the behaviour on the night in question. Dr PO’C’s report, it is argued by the appellant, did not address the matter of a concussion at all. By dealing with the matter of dissociative amnesia and an inherited organic cause, rather than an assessment of whether the appellant suffered from a concussion, it is argued that the central factual issue was not addressed, and therefore the trial judge erred in admitting this evidence. The trial judge set out the following in deciding to admit the evidence:

Now, an issue has arisen here in relation to an application made by the prosecution for leave to call [Dr PC] as an expert witness in rebuttal. After the prosecution case has rested and the defence have gone into evidence with their professional witness and section 203 of the Defence Act, if I've to paraphrase it, it says that the Court Martial "If a Court-Martial finds that a person did the act charged but, having heard evidence relating to his mental condition given by a consultant psychiatrist, finds that he was at the time when he did the act suffering from a mental disorder and that the mental disorder was such that he should not be held responsible for the act by reason of the fact that he did not know the nature and quality of the act he was doing or he did not know what he was doing was wrong or he was unable to refrain from committing the act, the Court-Martial shall especially find that the person is not guilty by reason of insanity."

The defence in their defence called the expert witness of [Professor PC]. The prosecution are entitled to call evidence to rebut that professional expert evidence and they have called [Dr JR] to date. The organic issues that were previously in play so I say "organic" in a general sense in the way that that term has arisen in review of the report of [Dr JH]- they have fallen away, as has the question of disassociation, which was also raised by [Dr JH]. So the question arises of whether allowing [Dr PO’C] to be called would amount to a second bite of the cherry on behalf of the prosecution. But as Walsh says, this is entirely a matter for the discretion of the trial judge and there is discretion to permit rebutting evidence to be introduced by the prosecution in certain circumstances.

Now, factors I've taken into account here that firstly that the Court has given considerable leeway to both parties in production or time for procurement of reports to date. And this started with leeway given to the defence, effectively at the last minute on the day that this trial was initially meant to go on. And the defence came in with a report from [Dr JH], which had been procured very late in the day and I think furnished to the prosecution within a day or two. If memory serves me rightly, the trial was due to start on a Monday and the report may have been furnished on a Friday evening. I'm not sure of the precise timing, but it was at the 11th hour anyway.

Now, the defence were given time to procure or sorry, had a report from [Dr JH] but they have chosen not to call him which they're quite entitled not to do. But they still maintain a line of defence - again, which they're perfectly entitled to do, albeit it now grounded on the evidence of [Professor PC], who is a consultant psychiatrist. [Dr PO’C] was engaged initially by the prosecution to address the issues raised by [Dr JH] in his report of the 21st of February 2023. And [Dr P’OC] interviewed the accused, who consented to the process, and reviewed his history, conducted a mental state exam examination, reviewed the report of [Dr JH], who had been treating the accused, reviewed the medical records of the accused and the book of evidence and he furnished his opinion to the prosecution, which was shared with the defence. And in that opinion, he dealt with the question of whether the information available to him would satisfy the criteria of section 5 of the Criminal Law (Insanity) Act, which closely reflects the criteria laid down in section 203 of the Defence Act in relation to establishment of a mental disorder at the time of commission of an offence within the context of those statutory provisions.

So I think the Court has been fair to the accused inter alia in allowing the adjournment on the date of the original trial date when the defence procured the report, as I said at a late hour. The court has also facilitated both parties with various adjournments over the last year to allow the issue of the mental state of the accused at the time of the offences or the alleged offences to be assessed and reported on by expert witnesses. And that was in order to facilitate a fair trial on the relevant issues and that fair trial issue was a ground on which I originally allowed the first adjournment of the original trial.

[Dr PO’C’s] report was reviewed by [Professor PC], the defence expert, for the purpose of her report and elements of that report were put to her in the box in the witness box here on Friday in the presence of the Board. Various reports of those parties – that’s [Dr JH’s], [Dr PO’C’s], [Professor PC’s] and [Professor JR’s] had been exchanged between the prosecution and the defence on a reciprocal basis, all of which is to be commended in terms of crystallising the issues to be properly tried here in this case.

Section 203 of the Act requires opinion evidence from a consultant psychiatrist in relation to the issue of mental disorder in the context of that defence. [Professor JR] is well qualified to give evidence on concentration, but he is a consultant in emergency medicine and not a consultant psychiatrist. And the circumstances that have arisen here and the manner in which this situation has come about, I don't regard it to be a second bit of the cherry for the prosecution to have [Dr PO’C] give evidence in circumstances where evidence of a consultant psychiatrist is required for the purposes of a potential section 203 defence, even in circumstances where the issues raised by [Dr JH] are no longer in play. And in my view, it's appropriate that leave be given for him to be called as a rebuttal witness in the circumstances that have arisen, not to canvass and disprove issues no longer in play but as an appropriately qualified medical expert to deal with the issue arising under section 203.

And in my view, that will likely assist the Court-Martial and the Board in addressing the relevant issues anticipated as being necessary for the fair disposal of the issues in this case.

So in the circumstances, I'm going to grant leave for [Dr PO’C] to be called as an expert witness on those terms.

8. The second ground of appeal pertains to the trial judge’s refusal to permit the defence to put photos taken by the appellant on the morning after his injuries were inflicted to a medical witness, Dr SS, who examined him the day after his injuries were inflicted. Whilst the defence argued that these provided objective evidence of the appellant’s physical condition shortly after the assault, the prosecution objected on the basis that, on the morning after he sustained his injuries, upon being questioned by members of the MP, the appellant refused to be photographed. The objection raised was that the photos constituted hearsay evidence, as they were not verified by a witness, lacked clarity on when they were taken, and could have been manipulated, making their authenticity and relevance uncertain. The reasoning for refusing the application to put the photos to Dr SS was set out by the trial judge as follows:

Well, I have considered what you have said to me, Mr [V], and also what Commandant [C] has said in response, and these photographs are presented before the Court at this point, just before a witness is to be called, in circumstances where the accused has previously refused to allow himself to be photographed for the purposes of an investigation of this matter. And there is no proof of the circumstances in which the photographs came to be taken, how or when they came to be taken. At face value one was taken on the 13th, which I think was the morning after the alleged incident. The second -- and there's some date appearing on that. The second is undated and it clearly appears to be a couple of days later and you tell me it's probably on the morning -- or your instructions are I think that it's on the morning of the -- that he met [Dr SS]. But it's accepted and established in the evidence given, and accepted by both sides, that he received a blow to the head on the night, and the legal issue here turns on the medical evidence of whether or not he was concussed as a result of that blow. And I don't see that these photographs, one way or another, are going to assist in establishing whether or not he was concussed. I am also noting that they have not been furnished to any of the three or four medical practitioners that have been engaged in this process to furnish reports up to now, despite the fact they have been presumably -

- if they are genuine they have been in hand or available for the last two years. And they are, at best, only a representation of what he looked at a particular point in time, which is unproven. So, having considered the issues, my view on it is that they are not -- they are not proven, they are not necessary to deal with the issues that are going to go to the Board, and I don't see that they're going to add one way or another to assisting any of the parties here to focus in on the relevant legal issues. So in the circumstances I am going to refuse the application.

9. Now, the appellant argues that the trial judge erred in refusing to admit this evidence, as the witness, Dr SS, would have been free to agree or disagree with the photographs as to whether they constituted a true image of what the appellant’s injuries looked like upon assessment, and the matter of weight to be attached to these photographs was ultimately a matter to consider for the board.

The expert evidence

10. Two main points arise with regards to the first ground of appeal tendered by the appellant, with regards to the relevance of the expert witnesses’ evidence. The first is in relation to whether Professor PO’C should have been called at all. The point is made forcefully that his evidence was irrelevant as he did not examine the accused in this case and in addition he did not offer a viewpoint or any opinion in relation to the combination of factors put forward by Professor PC, witness for the defence, who proffered, in a guarded manner, the behaviour as being indicative of a dissociative state or being owed to temporary insanity. For the purposes of this judgment, the matter of whether a dissociative state and temporary insanity leading to the kind of extremely serious orders that are the result of a finding of not guilty by reason of insanity will be left to one side. It seems also that the Court should leave aside whether that is possible in relation to diminished responsibility, which is a separate section of the Act, s 6 of the Criminal Law (Insanity) Act 2006, which the 1954 Act incorporates.

11. The first point is that Dr PO’C should not have been called. This argument is not made in the context of rebuttal evidence which is admissible to counter new or unforeseen matters raised by the defence which could not have reasonably been anticipated in the prosecution’s case in chief; The People (DPP) v Nevin [2003] 3 IR 321. The challenge brought here is with regards to relevance of the evidence tendered by Dr PO’C. The report prepared by him was comprehensive, and it conducted a review of the appellant’s medical and psychiatric history, family background, and mental state. This was supplemented by collateral information obtained through a discussion with the appellant, from whom he garnered historical factors such as experiences whilst previously serving abroad, reactions to medications, and previous episodes of alleged temporary amnesia. His principal conclusion was that the appellant’s behaviour was consistent with alcohol intoxication. Whilst Dr JH acknowledges intoxication and raises the possibility of dissociation, Dr PO’C dismisses this as highly improbable in the trauma-related context, noting that dissociation was not established as a mental disorder. He addresses organic differentials, referencing hallucinatory symptoms and medication-related episodes, and recommended an MRI and ECG, both of which returned normal results. The report further noted a history of moderate alcohol use without dependence, but clear abuse on the occasion in question, inferring an average to low tolerance. Ingesting vodka likely produced a higher-than-usual level of intoxication is the report’s finding, and with high alcohol levels amid emotional stress, an abrupt alcohol-induced memory blackout was possible. He distinguished this from a dissociative state, which he did not support as a diagnosis.

12. As to whether this is relevant or not, there are two points to be made. First, the evidence is relevant as it deals with the entire context of the case, by dealing with the circumstances under which the various forms of trauma or experiences that were reported by the appellant to Dr PO’C might be assessed. The second point is that, in criminal trials, one very often has quite irrelevant evidence. Indeed, the nature of both civil and criminal trials is that the evidence tends to get refined down over a matter of weeks. One then comes down to perhaps 20 minutes, 30 minutes, one or two hours which are the real kernel of the case. The question is therefore, what does the court mean by relevant? Relevance is when a fact, in being presented by the court, and being accepted as true advances the resolution of a fact in issue negatively or positively. Hence, the relevant issue in this case was whether there was a dissociative state and temporary insanity which the court is not making any comment on, and the report in question addresses that and addresses it clearly and well. That is the first point to be addressed in this case.

13. The second point is in relation to photographs. Photographs, the Court must accept, are a matter of weight. The provenance of photographs more and more seems to be an important factor to consider when dealing with appeals. It has become increasingly more common to come across situations where someone has been recorded on CCTV for instance, and an issue is raised in relation to the admissibility of that evidence or chains of evidence. Chains of evidence do not come into criminal law, and what is involved is the proof of fact beyond reasonable doubt. That being said, evidence can become so weak that it should not be admitted in the first place. This is the first reason for ruling them out. The issue of provenance of these photos is a real issue and it was raised in front of the military judge and the judge ruled against their submission. There may or may not have been dates altered manually on these. As we come into the age of AI and photoshopping, the Court is not suggesting that these were doctored photographs, but they were photographs, the provenance of which was not proved, and, in that context, there is no reason at all to rule them out.

14. The second reason for ruling them out is this. Taking the example of a road traffic collision, often a photograph of a car in bad condition is delivered up to a judge. In a personal injury case, it may be the case that an argument will be made that the bad state of the car is directly linked to the plaintiff’s complaints of a back injury, and the correlation between the seriousness of the damage to the car and the injury complained of. However, in the context of an allegation of temporary concussion, the fact that someone has a bruise on their face does not necessarily advance the case at all one way or the other. There could, for instance, be a blow to the head causing a contrecoup injury by the opposite side hitting against the skull badly, which will reveal nothing physical on the outside, but which could potentially consequentially lead to a concussive state.

Result

15. In the result, the appeal is dismissed. The issues raised in relation to the admission of evidence from Dr PO’C and the admission of photographic evidence were addressed by the military judge and this was done correctly.