Army captain appeals conviction over missing CCTV footage

Captain Ross O’Shea was found guilty by a court-martial in October 2022 of sexually assaulting a female non-commissioned officer (NCO) following a social function at a barracks in Leinster on 25 June 2020.

He was tried in September 2022 before military judge Colonel Michael Campion and court-martialed. O’Shea was convicted on October 14, 2022, of sexually assaulting the woman by moving his open palms up and down her back and saying “come on, come on” or words to that effect in the Officer’s Mess.

He was also found guilty of one charge of assault on the same officer contrary to Section 2 of the Non-Fatal Offenses Against the Person Act 1997. His discharge was ordered as part of the sentence imposed on these two charges. O’Shea remains a serving member of the military pending his appeal.

The offenses occurred when the appellant attended a barbecue organized by the Covid Joint Task Force during the Covid-19 pandemic.

Captain O’Shea had been taken to the Officer’s Mess by two female NCOs after being found asleep and in a state of intoxication, sitting on a chair outside a gymnasium where the barbecue had previously been held.

Grounds for appeal

At the Court of Appeal on Tuesday, James Dwyer SC for O’Shea told the court that these two charges are the subject of his appeal. Counsel argued that missing CCTV footage that may have captured the incident meant his client was “deprived of the opportunity” of some line of defence.

O’Shea was charged and tried by 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 junior officers in breach of Section 2 of the Non-Fatal Offenses Against the Person Act 1997.

He was convicted of two other charges and acquitted of a further seven charges, with four more dropped during the trial.

Mr Dwyer told the three-judge Court of Appeal that there was evidence of a camera that may have recorded what happened, but that footage no longer existed by the time his client came to court.

Counsel said there were discrepancies in some of the prosecution’s evidence, including whether the complainant and O’Shea entered the officer’s dining room together or whether she walked through and whether the door to the area where the offenses occurred was at that was currently open or closed.

He said there was also an issue regarding evidence provided by the complainant that another warrant officer in the area may have been smoking at the time.

He said the footage was never located and preserved and the lost evidence denied Captain O’Shea a potentially useful line of defense. Mr Dwyer submitted that the appellant was subjected to an unfair trial as a result of the issues surrounding the CCTV.

“We say there are inconsistencies and that we have missed the opportunity that CCTV could have solved these problems,” he said. “In a well-balanced case, we say this is a missed opportunity.”

Objections to appeal

Remy Farrell SC, for the Director of Military Prosecutions (DMP), said it was accepted as a fact that the appellant had a physical interaction with the complainant, essentially hugging her.

“What could camera surveillance add to this?” he said, adding that the point of contention was “vanishingly small.”

He said the question of whether the complainant went in with Captain O’Shea or whether she moved on was “an extremely minor detail” and had no bearing on “the events that transpired afterwards”.

In relation to smoking he said that the evidence given by the complainant was simply that as they approached the Mess she thought she saw one of the junior officers smoking. “It’s really hard to see how this is anything other than a completely irrelevant detail,” he said.

Mr Farrell said it was ‘completely unreasonable’ to suggest there had been a ‘significant missed opportunity’ in relation to the CCTV.

He said Captain O’Shea accepted he had his arms around the complainant, so even if “by some extraordinary circumstance” a CCTV camera with a zoom lens was trained on the situation, what happened behind her was relevant.

He said the thesis on which all this was put forward was that “maybe, just maybe” a camera could have captured what happened. “That’s the height of the discussion,” he said.

Madam Justice Isobel Kennedy said the court would reserve judgment in the case.