The Court of Appeal has dismissed an appeal against conviction by an appellant identified in the judgment as RO’, finding that missing CCTV footage did not deprive him of a realistic line of defence.
The appellant had been found guilty at trial of sexually assaulting Company Quartermaster Sergeant B at the Officers’ Mess in McKee Barracks on 25 June 2020, and of a further assault that caused her to apprehend another assault. He had pleaded guilty to a separate assault on B during the same incident, as well as other charges. The appeal, heard by Kennedy, Burns and MacGrath JJ., was limited to the two convictions.
The court considered the trial judge’s refusal to adjourn the trial for six months so the defence could arrange for an expert to inspect a second CCTV system associated with military intelligence. Its existence emerged during the trial. The appellant argued that inspection could help challenge prosecution evidence about the system and prepare the defence. The Director of Military Prosecutions said any footage, if it had existed and captured the incident, would have had limited value because the alleged acts and the complainant’s response could not reliably be interpreted from a camera recording.
The appeal court said footage from the intelligence cameras for the relevant date no longer existed, if it had ever existed. An expert inspection could therefore only have challenged evidence about how the system operated. The court held that the trial judge was entitled to refuse the adjournment, and that the CCTV issue was more appropriately considered through the defence application to stop the trial.
That application, made under principles associated with The People (DPP) v PO’C, argued that the absence of footage and the inability to inspect the system made the trial unfair. The appellant also said footage might have helped assess discrepancies in evidence, including who went up the stairs first and whether a lieutenant was smoking.
The Court of Appeal concluded that any footage was unlikely to clarify the alleged sexual or psychological assaults, and that the cited discrepancies would not have undermined B’s credibility to the required extent, given evidence from two lieutenants and the duty driver. It held that the missing footage did not amount to the loss of a realistic line of defence. The court upheld the trial judge’s refusal to stop the case and dismissed the appeal against conviction.