The Court of Appeal has dismissed an appeal by Ronan Donaghy against six convictions entered by a court martial, rejecting challenges concerning a complainant’s destroyed handwritten notes and the direction given on a sexual assault count.
The court’s judgment, delivered by Mr Justice Mahon on 17 June 2016, dealt only with the conviction appeal. A separate appeal against sentence was not determined in this judgment.
The convictions arose from alleged incidents at Aiken Barracks in Dundalk on 30 October 2013. The complainant, identified in the judgment as Ms C., and Donaghy were both members of the Defence Forces stationed there. Donaghy was a corporal assigned to the gymnasium as a physical training instructor; Ms C. was a corporal and a member of the Military Police.
The charges included entering a female changing area and sauna, refusing to leave the sauna when asked, entering Ms C.’s shower cubicle undressed, and exposing himself. The court martial found Donaghy guilty on six counts, including sexual assault. He contested the charges.
One appeal ground concerned notes Ms C. said she made at home on the evening of the alleged incidents. She later typed a version, which she said reproduced the notes, and said she shredded the handwritten original. The typed version was not put before the court martial by the prosecution. The appeal court said the defence knew of the typed document and its contents and could have sought to introduce it or cross-examine Ms C. about it. It also noted that the military judge had reminded the Board that the original notes were unavailable and that their absence could be considered when assessing her evidence. The appeal court held the direction adequate and dismissed the grounds relating to the notes.
The other main ground challenged the refusal to direct an acquittal on the sexual assault count. Donaghy argued that the alleged conduct did not amount to assault. The appeal court said an assault could include causing a person, on reasonable grounds, to believe they were likely immediately to face force or impact. It held the evidence described by Ms C.—including Donaghy entering her shower cubicle undressed after she had made clear she did not welcome contact—was capable of supporting a finding of assault accompanied by indecent circumstances. Whether the evidence established those matters was for the Board.
The court concluded that the military judge had correctly refused the direction sought and had sufficiently charged the Board on the sexual offence. It dismissed the conviction appeal. The judgment did not decide the separate sentence appeal.