Court of Appeal dismisses appeal against military conviction for sexual assault and conduct prejudicing good order.

COURT OF APPEAL

MILITARY

Sheehan J.

Mahon J.

Edwards J.

16/2016

DIRECTOR OF MILITARY PROSECUTIONS

RESPONDENT

- AND –

RONAN DONAGHY

APPELLANT

JUDGMENT of the Court delivered on the 17th day of June 2016 by Mr. Justice Mahon

1. The appellant was convicted by court martial sitting at the Military Justice Centre in McKee Barracks in Dublin on the 10th

September, 2015, of six offences as a result of allegations made by the complainant, Ms. C. relating to incidents which were said to

have taken place at Aiken Barracks, Dundalk Co. Louth on the 30th October, 2013. The charges against the appellant were fully

contested by him.

2. The six counts in respect of which the appellant was found guilty are as follows:-

(i) Count No. 1:

Conduct to the prejudice of good order and discipline contrary to s. 168(3)(a)(iii) of the Defence Act 1954, by making a

statement to Ms. C. to the effect that he would be with her in the female changing area in a minute, knowing that such

an action would be contrary to para. 9(a) of the 27th Infantry Battalion Gymnasium Orders.

(ii) Count No. 2:

Conduct to the prejudice of good order and discipline contrary to s. 168(3)(a)(iii) of the Defence Act 1954, by entering

the female changing area contrary to para. 9(a) of the 27th Infantry Battalion Gymnasium Orders.

(iii) Count Co. 3:

Conduct to the prejudice of good order and discipline contrary to s. 168(1) of the Defence Act 1954, by entering the

female sauna, in a state of undress, where said sauna was occupied by Ms. C..

(iv) Count No. 4:-

Conduct to the prejudice of good order and discipline contrary to s. 168(1) of the Defence Act 1954, by not leaving the

female sauna when requested by Ms. C..

(v) Count No. 5:

Committing an offence contrary to s. 169 of the Defence Act 1954, namely sexual assault contrary to s. 2 of the Criminal

Law (Rape) (Amendment) Act 1990, by entering the female shower cubicle occupied by Ms. C. in a state of undress

causing her, by his actions, to apprehend an assault.

(vi) Count No. 7:

Conduct to the prejudice of good order and discipline contrary to s. 168(1) of the Defence Act 1954, by permitting his

genital area to become exposed to Ms. C..

3. The learned military judge sentenced the appellant on the 12th January, 2016, in relation to the foregoing counts as follows:-

• Count No. 1: No punishment.

• Count No. 2: Reprimand and fine of €250.

• Count No. 3: Seven day’s detention (concurrent), a fine of €500 and demotion to the rank of Private.

• Count No. 4: Severe reprimand and fine of €500.

• Count No. 5: Twelve weeks detention with the final eight weeks suspended for a period of one year, demotion to the

rank of Private and discharge from the Defence Forces.

• Count No. 7: Severe reprimand and a fine of €500.

4. The imposition of these individual penalties meant that 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. The appellant had been a member of the Defence Forces for 21 years.

5. Both the conviction and the sentences are appealed. This judgment relates only to the conviction appeal.

Background facts

6. Both the appellant and the complainant were members of the Defence Forces stationed at Aiken Barracks, Co. Louth in October

2013. The appellant was a corporal assigned to the barrack gymnasium as a physical training instructor, and the complainant was also

a corporal and a member of the Military Police.

7. The incidents which gave rise to the charges against the appellant are said to have occurred on the 30th October, 2013, at Aiken

Barracks. At lunchtime on that date the complainant enquired from the appellant as to what time the gymnasium was closing on that

date, as she intended to attend there following the completion of her military duties. She inquired if the sauna was working. The

appellant was told it was and suggested to her that he would meet her in the sauna later. The complainant indicated that she was

not agreeable to that suggestion. Shortly after 4.00 pm on that afternoon the complainant attended the gymnasium. She changed

into her training gear in the female accommodation section before returning to the gymnasium. Following her training, she walked

towards the female changing area and as she entered, the appellant shouted to her that he would follow her in. She indicated to him

that this was not acceptable to her. The complainant then entered into the female changing area, undressed, took a quick shower,

and wearing a towel entered the sauna. While in the sauna, the appellant came into the sauna and closed the door, sitting to her left.

She asked him to leave, he did not do so, and she ultimately left. She said that she felt uncomfortable with his presence in the sauna.

She advised the appellant not to emerge from the sauna until she had dressed herself. She then entered a shower cubicle. Moments

later the appellant came into her shower cubicle, having removed his towel beforehand. There was a momentary contact because of

the proximity of the two people in the shower. The complainant was upset and left the shower, and was in the process of getting

dressed, when the appellant again approached her and exposed himself to her. The complainant then left the gymnasium area. At all

times the complainant left the appellant in no doubt but that she found, in particular, his entering into her shower cubicle in a state of

undress, and his exposure to her, absolutely objectionable.

8. The complainant said she felt faint when the appellant entered into the shower cubicle. She said she felt completely violated and

was angry, that she felt sick and uncomfortable.

9. The complainant reported the matter to her detachment commander, Corporal Michael Finnan. The appellant was later charged with

the various counts.

The grounds of appeal

(i) The learned military judge erred in refusing the appellant’s application to discharge the Board in circumstances where

the existence of the handwritten notes emerged only during the complainant’s evidence in chief;

(ii) The learned military judge erred in failing to direct an acquittal at the direction stage of the case in light of the

unfairness and prejudice caused to the defence by the failure to seek out and preserve the handwritten notes;

(iii) The learned military judge’s charge did not adequately address the destruction of the handwritten memo and the

subsequent defect that the destruction might have on the defence; and

(iv) The learned military judge erred in refusing a requisition raised by the defence to recharge the Board in respect of the

destruction of the handwritten note;

(v) The learned military judge erred in failing to direct an acquittal on count 5 at the direction stage of the case where

the offence of sexual assault was not made out;

(vi) The learned military judge’s charge failed to charge the Board adequately in relation to the offence of sexual assault.

10. The appellant’s grounds of appeal essentially relate to two aspects of the trial. The first concerns the handwritten notes made by

the complainant after she had gone home on the evening of the 30th October, 2013. These were not made available to the appellant

prior to, or indeed in the course of, the trial. The second involves a contention by the appellant that the military judge erred in failing

to direct an acquittal on count no. 5 at the direction stage of the case in circumstances where, he contends, the offence of sexual

assault was not made out.

The handwritten notes issue

The statements made available to the appellant

11. Prior to the trial, and in the course of the trial, four statements made by the complainant were provided to the appellant. These

were a handwritten statement dated the 7th November, 2013, witnessed by Captain Orla Jennings, a typed copy of the same

statement, a subsequent additional statement dated the 6th December, 2013, also witnessed by Captain Orla Jennings, and a typed

three page statement at the end of which there are a number of indecipherable signatures. The latter is apparently a typed version of

the handwritten notes made by the complainant on the evening of the 30th October, 2013. The complainant maintains that having

completed the typed up version of her handwritten notes and which she says were an exact reproduction of those handwritten notes,

she shredded the handwritten notes.

12. In the course of a pre-trial hearing before the learned military judge on the 10th July, 2015, it was confirmed by both the

prosecution and on behalf of the appellant that the disclosure process had been completed. At no stage in the course of this or

earlier applications was any request made for the handwritten version of the typed notes made by the complainant. In the course of

the trial the complainant explained in detail as to why she had decided to make handwritten notes, and the manner in which she

actually did so while at home on the evening of the incident. She also described how, following her approach to Corporal Finnan on

the morning after the incidents, she was taken to Commandant Priestly. She described how she typed out her handwritten notes

while sitting alone in an office. In the course of the trial the complainant confirmed that the typed document was a typed version of

her handwritten notes. She also confirmed that the handwritten notes had been shredded.

13. Following reference to the handwritten notes in the course of her evidence, counsel on behalf of the appellant requested the

learned military judge to rule the typed version of those notes to be inadmissible. The prosecution sought to have them admitted

under the doctrine of recent compliant. The learned military judge adjourned for further consideration of the issue overnight, and on

the following day the prosecution stated that it was no longer seeking to admit the typed version of the handwritten notes. Counsel

for the appellant then sought to have the Board discharged on the basis that they had already heard reference made to handwritten

notes which had not been disclosed to the appellant. Counsel for the appellant acknowledged that full disclosure of documentation

available to the Director of Military Prosecutions had been made and that the Director never had in his possession the handwritten

notes. It was contended for on behalf of the appellant that he was prejudiced because the Board had heard evidence that the

complainant had made handwritten notes, but these handwritten notes were not available at the trial. The Board did not hear

evidence as to the content of the typed version of the hand written notes, and no cross examination took place of the complainant

on behalf of the appellant in relation to their content.

14. The learned military judge gave his ruling in relation to the issue on the 3rd September, 2015. He stated:-

“So, I have considered the arguments and the submissions and the issue for decision by me is whether to discharge the

Board on the basis that the Board have heard evidence that the witness prepared a note on the night of the incident and

that the original of these notes or note, I am not sure whether it is singular or plural, did not form part of the military

police investigation or the prosecution file and have never been seen by the prosecution or the defence and the notes

are no longer available or no longer in existence apparently and that the non existence or non availability of these notes

is so prejudicial to the accused in the conduct of his defence that there is a real risk of an unfair trial which cannot be

avoided by an appropriate warning or direction from the military judge. So that is the issue as I framed, possibly in a

slightly cumbersome manner, but that is as I see it.”

15. The learned military judge rhetorically asked the following question:-

“Does the absence of this original note prevent a fair trial or the possibility of a fair trial?”

16. The learned military judge proceeded to conclude his ruling as follows:-

“So, I am not satisfied that the Board have been prejudiced against the accused by hearing evidence of the making of

the notes on the night and I am mindful of the significance of an order to discharge a Board and the comments of Mr.

Justice O’Flaherty in Dawson v. The Irish Brokers Association. It is a Supreme Court case from 1998 where he said 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. Juries are much more robust and conscientious than is often thought. They are quite capable of

accepting a trial judge’s ruling that something is irrelevant, or should not have been given before them, as well as

in the face of adverse pre-trial publicity.’

So, in the circumstances, I am not satisfied that there has been any prejudice, nor that any inadmissible evidence has

been led, nor that there is any real risk of an unfair trial in this case. I don’t consider that there is any surprise to the

accused and it seems to me that he is aware of the case that he has to meet so in all the circumstances, I am refusing

the application for discharge of the Board.”

17. The prosecution maintain that the learned military judge’s ruling was correct. It relies on an extract of a judgment of Hardiman J.

in Scully v. DPP [2005] IESC 11, namely:-

“. . . the defendant has done here is merely to invoke the possibility that exculpatory evidence at one time existed, that

there was something visible on the video, despite the new evidence. He must do more than that. In the words of Finlay

C.J. in Z. v. DPP [1994] 2 IR 476 at 507 he must ‘… establish a real risk of an unfair trial’: the importance of the first

adjective in this phrase is that it excludes a risk which is merely remote fanciful or theoretical. The need to meet this

requirement involves a much greater engagement with the actual state of the evidence than is apparent here. The

applicant’s case did not at all engage with the facts provided in the additional statements in April, 2003, but simply

considered them as irrelevant. This omission represents a flight into unreality.”

18. The prosecution also relies on an extract from the judgment of Kearns J. (as he then was) in DPP v McCarthy and Another [2008]

3 I.R. 1, including:-

“. . . the obligations of disclosure are not limitless nor are they to be assessed in a vacuum or upon a purely theoretical

or notional basis. Nor is a conviction to be regarded as unsafe per se simply because there has been a partial failure by

the prosecution to meet the obligations of disclosure. It is a question of degree in every case. . . . The court is of the

view that a failure of disclosure must be shown to have been important, as distinct from technical or trivial, if a

conviction is to be regarded as unsafe. . . .”

19. The appellant maintained that the fairness of the trial had been compromised by the absence of the handwritten notes, and that

the prejudice was such that the Board, properly directed, could not find the appellant guilty on the evidence of the prosecution in the

absence of such notes. The appellant took issue with the view as expressed by the learned military judge that the handwritten had

never been in the possession of the prosecution prior to their destruction. The appellant points to the fact that on the morning

following the incident, the complainant advised Corporal Finnan, a Military Police officer, and a member of the investigating team, of

the existence of the handwritten notes.

20. The learned military judge’s charge in relation to the issue of the handwritten notes was also the subject of criticism by the

appellant. In the course of his charge the learned military judge stated the following:-

“. . . they also refer to the handwritten note that Ms. C. said she had made of the events at home on the night of the

30th October and the defence say they have a concern about the fact that the handwritten notes which Ms. C. said she

had made at home on the night of the incident had not been produced in court. She said that she left the notes in a

sealed envelope for Commandant Priestly on the 1st November and on the 21st March, 2014, handed a copy of the

handwritten notes of the 30th October to Commandant Coakley. She also said in the witness box that the handwritten

note had been shredded. It is not known what was in that note. These are matters that have been drawn to your

attention by the defence.”

21. Subsequent to the charge, a requisition was raised on behalf of the appellant seeking to have the Board re-charged in relation to

the issue of the destruction of the handwritten notes. Counsel for the appellant addressed the learned military judge as follows:-

“. . . the fact that the existence of the handwritten note of the 30th October, 2013, and the handing over of it to the

military police . . . was addressed in the charge, but the subsequent shredding or going missing may raise a doubt in the

mind of the jury, the Board, and in those circumstances, it is my respectful submission that, if it does raise a doubt, if

they have a doubt, that the accused should be given the benefit of that doubt.”

22. The learned military judge refused to readdress the Board on the issue.

23. The prosecution maintained that the learned military judge’s charge to the jury in respect of the handwritten notes was sufficient

and reasonable in all the circumstances, and fully complied with the views expressed in judgments in the cases of People (Attorney

General) v. Casey [1963] I.R. 33, and R. v. Lawrence [1982] AC 510.

Discussion and Conclusion

24. In The People (DPP) v. McKevitt [2008] IESC 51, Geoghegan J. in the course of his judgment stated the following in relation to the

issue of disclosure at p. 530:-

“Before going into any detail, it is necessary, in my view, to clarify one aspect of the law in this regard. Counsel for the

appellant seemed to be adopting the approach that, if in some way the trial court's approach to issues relating to

disclosure was legally defective, a conviction should be quashed and the appeal allowed. I do not believe that that

approach is correct. A trial court at a pre-trial stage, or even when an issue arises during a trial, is concerned with the

question of whether there is a real risk of an unfair trial. An appellate court, however, must view the matter somewhat

differently. It 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. This would seem to me to be

so, quite independently of the so called proviso.”

25. In his book, “The Criminal Process” Prof. Thomas O’Malley states, a p. 698:-

“However, it is also accepted that an appeal court must be careful to assess whether a non disclosed matter could have

made a material difference, whether to the credibility of a witness or some other pertinent issue at trial. If satisfied that

it would have such a difference it should treat the conviction as unsafe. Indeed a verdict should probably be quashed

even if there appears to be a reasonable possibility that non disclosure or late disclosure may have made a material

difference.”

26. In this case, ideally, the complainant’s handwritten notes ought to have been preserved and disclosed to the appellant in advance

of the trial. At a relatively early stage in the investigation of the complaints made by the complainant, the handwritten notes were

destroyed, but only after they had been transcribed into a typed version. This was the evidence of the complainant and she was not

challenged in relation to it. There was therefore potentially available to the Board, what might be described as secondary evidence of

the handwritten notes. While, as stated earlier at paragraph 14 of this judgment, the prosecution elected in the end not to place the

typed version before the Board, the defence legal team was fully aware both of the existence of this typed version, and of its

contents, and they could have sought to introduce it themselves, or to cross-examine on foot of it, if they felt it to be of relevance

or assistance to the defence case. 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. Such was expressly acknowledged by the appellant’s counsel.

27. In the course of his charge to the jury, the learned military judge took care to remind the Board as to the controversy in relation

to the missing handwritten notes. He reminded them of the circumstances in which they had arisen and the circumstances of their

destruction according to the evidence of the complainant. This was a perfectly adequate charge in the circumstances and the extent

to which the fact that handwritten notes had been made, but were not available at the trial, and the extent to which this should

impact on the credibility of the complainant’s evidence was a matter for the jury. The jury had available to it two, what might be

described as, formal statements made by the complainant, and importantly, the complainant’s oral evidence, and the cross

examination of the complainant in relation thereto.

28. The court is satisfied that the appellant’s grounds of appeal in relation to the issue of the handwritten notes and the learned

military judge’s charge to the jury arising therefrom be dismissed.

The failure to grant a direction on the sexual assault count

29. The second main ground of appeal relates to the sexual assault charge, or count No. 5, in respect of which the appellant was

found guilty. This was undoubtedly the most serious of the charges preferred against the appellant, and resulted, inter alia, in his

discharge from the Defence Forces.

30. Section 2(1) of the Criminal Law (Rape) (Amendment) Act 1990 defines the offence of indecent assault in the following terms:“. .

. [t]he offence of indecent assault upon any female person shall be known as sexual assault”.

31. The appellant contends that the learned military judge erred in failing to direct an acquittal on count no. 5 at the direction stage

of the case in circumstances where, it was contended, the offence of sexual assault was not made out. Central to this submission is

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.

32. The appellant refers to the description of the offence of sexual assault in Charleton’s “Criminal Law” as follows:-

“Sexual assault is defined as an assault accompanied by circumstances which are objectively indecent . . . the elements

of the offence thus are:

(1) That the accused intentionally assaulted the victim,

(2) That the assault and the circumstances accompanying it are proved to be indecent according to the

contemporary standards of right minded people,

(3) That the accused intended to commit such an assault as referred to in (2) above.”

33. The appellant contends that indecent behaviour, or suggestions or proposals made suggesting such behaviour (such as are

alleged on the part of the appellant in this case) do not amount to an assault for the purposes of sexual assault. It was contended

that the “unsavoury” conduct and the “indecent behaviour”, using the terminology in the appellant’s written submissions, in this case

did not constitute an assault in the absence of any threats, suggestion or use of violence, capable of causing the complainant to

believe that the appellant was going to subject the complainant to force or impact.

34. The prosecution, on the other hand, maintain that the behaviour complained of as against the appellant may constitute an assault

as defined by s. 2 of the Non Fatal Offences Against the Person Act 1997, and which states:-

“A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly

(a) directly or indirectly applies force to or causes an impact on the body of another, or

(b) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any

such force or impact, without the consent of the other.”

35. In his charge to the jury in relation to the issue of the sexual assault, the learned military judge quoted s. 2 of the Non Fatal

Offences Against the Person Act 1997, and its definition of assault. He continued:-

“So, force includes the application of heat, light, electric current, noise or any other form of energy and I don’t think

that applies in this case but it is in the definition of the offence of assault. And it also includes the application of a matter

in solid or gaseous form which does not apply in this case. The section also provides that no such offence is committed

if the force or impact not being intended to or likely to cause injury is, in the circumstances, such as is generally

acceptable in the ordinary conduct of daily life and the defendant does not know or believes that it is, in fact,

unacceptable to the other person. So, the application of the force must have been without lawful excuse and that

means that the use of force may be lawful in certain circumstances, for example, reasonable force may be used where

necessary in order to defend oneself, but that does not arise in this case.”

36. The learned military judge then addressed the jury in relation to mens rea as follows:-

“The mental element of the offence of assault is intention or recklessness. So, the prosecution must prove that the

accused intended to effect the wrong on the victim, or that he was reckless, that is that he took a serious and

unjustifiable risk that wrong would be effected on the victim. . . . so in law, an accused person may be presumed to

have intended the natural and probable consequences of their action. . . Now, recklessness is a less culpable mental

state than intent and the person acts recklessly with respect to a material element of an offence when he consciously

disregards a substantial and unjustifiable risk the material element exists, or will result from his conduct. . . . The risk

must be of such a nature and degree that considering the nature and purpose of the actor’s conduct and the

circumstances known to him, this disregard involves culpability of a high degree. So that is the position in relation to

assault.”

37. The learned military judge went on to explain the relevant legal principles in the context of the case against the appellant. He

correctly described indecent assault as an assault accompanied by circumstances which are objectively indecent, and that it was a

matter for the Board to decide whether there was indecency in the circumstances of this incident. He went on:-

“So, you must decide firstly whether there was an assault, whether Mr. Donaghy caused Ms. C. to believe, on

reasonable grounds, that she was likely immediately to be touched by him; and secondly whether the accompanying

circumstances were indecent; that is that he was naked or undressed when he entered the shower cubicle occupied by

her.”

38. No requisition was raised on behalf of the appellant in relation to the manner in which the learned military judge charged the jury

on the issue of sexual assault.

39. The fact that the issue was not raised in this way on behalf of the appellant is, the prosecution contends, sufficient to justify this

Court refusing to consider this ground of appeal. Reliance is placed on the decisions in People (DPP) v. Maloney (Unreported, Court of

Criminal Appeal, ex tempore, O’Flaherty J. 2nd March, 1992) and The People (DPP) v. Cronin [2003] 3 I.R. 377, at 391.

40. The appellant did however raise the issue of how the jury should be addressed in relation to the sexual assault charge prior to the

charge to the jury. Counsel for the appellant addressed the learned military judge as follows:-

“I think the evidence of sexual assault should be brought to their attention and what constitutes a sexual assault and the

case law to the effect that, the People v. Doolan, well, what I think needs to be brought to their attention that the case

or effectively the case law is this, is that if a man exposes himself that is not a sexual assault. If a man grabs . . . if a

man invites someone to touch him, and this is a little bit distasteful but it also applies to children’s cases, then that is

not a sexual assault either. . . .”

41. The appellant maintains that the learned military judge failed to give the Board adequate guidance as to what amounts to an

assault, and particularly what might amount to a sexual assault.

42. It is also contended on behalf of the appellant that the learned military judge erred in his refusal to accede to the appellant’s

application for a direction on the basis that the constituent elements of the offence of a sexual assault had not been made out.

Central to this submission is the argument, made by the appellant, that the apprehension of an assault does not amount to an assault

for the purpose of an offence of sexual assault within the meaning of s. 2 of the Act of 1990.

43. The respondent contends that the assault component of the offence of sexual assault is governed by the common law definition

of assault as opposed to that provided for in s. 2 in the Non Fatal Offences Against the Person Act 1997.

44. There was in fact no application for a direction on behalf of the appellant on the basis that the circumstances of the incident as

told by the complainant could not amount to an offence of sexual assault. Application was made for a direction, but that essentially

related to the missing handwritten notes made by the complainant, and alleged inconsistencies in the evidence of the complainant.

Submissions were made as to the extent to which there was a “progression” in the statements in relation to the allegations.

Discussion and conclusion

45. Written and oral submissions have been made to this Court in support of the contention that indecent behaviour or indecent

proposals do not constitute an assault for the purposes of it being a sexual assault. It was the complainant’s evidence that the

behaviour of the appellant put her in fear of being sexually assaulted and/or raped.

46. Section 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 . .”

47. Section 2 of the Criminal Law (Rape)(Amendment) Act 1990 provides that an assault shall be a sexual assault if the assault is

accompanied by circumstances of indecency on the part of an accused person. An assault at common law does not involve the direct

application of force. In O’Malley, “Sexual Offences” (2013), p. 100 it is stated:-

“An assault at common law did not involved the direct application of force; it consisted of a movement or gesture which

attempted or threatened the unlawful application of force to another and it must have intentionally or recklessly caused

another to apprehend the application of unlawful force, or, at least a physical touching.”

48. In the particulars of this case, the complainant’s evidence was clear having made suggestive comments to her, and such

comments being of a sexual or quasi sexual nature, the appellant entered into a shower cubicle in which the complainant was taking a

shower uninvited, while she was in a complete state of undress, and having done so, removed his only garment, a towel. This was

against a background where the complainant’s reactions to the appellant’s approaches and suggestions made both in the immediate

past, and at an earlier stage in the day, made it clear to the appellant that she did not wish to have any contact with him, and that

she disapproved of his actions. While such suggestions, as were made by the appellant and such actions (entering the sauna and

especially, entering the shower cubicle) are capable of being considered friendly, inoffensive and certainly not criminal, in different

circumstances, such as those outlined in this case by the complainant, such behaviour becomes offensive and indecent and may, as

the complainant maintained, cause a person to become fearful of a physical or sexual attack.

49. It was a matter for the Board to decide whether, in the circumstances of the incident and in the light of the evidence given by

the complainant, she was put in fear of a sexual attack and to determine if there was evidence of indecency such as was capable of

constituting a sexual offence.

50. The court is satisfied that the learned military judge was correct in refusing the application for a direction on the grounds made to

him and that the Board were properly and sufficiently charged in relation to the nature of a sexual offence.

51. Even if the court was not of this view, the fact that the appellant failed, in the course of the trial, to address the particular

arguments he now seeks to make in relation to the sexual offence issue, would in any event have justified the Court in upholding the

respondent’s contention that this particular ground of appeal should not be engaged with having regard to People (DPP) v. Cronin

[2003] 2 I.R.

52. Accordingly, this ground of appeal must also fail.

53. In the circumstances, the appeal is dismissed.