A former soldier charged with a number of sexual offences was entitled to a “special verdict” of guilty by reason of insanity because it was likely he had suffered concussion just before the offences are alleged to have occurred, a Defence Forces court martial has been told.
Kathleen Leader SC, for the now retired former soldier, said her client had four clearly visible soft tissue injuries to his face, including grazing and bruising, due to a blow he had sustained. In her concluding remarks to the court martial board, or jury, she said the process over the last fortnight had heard from an expert witness who said the behaviours, and lack of recall, of the accused man were consistent with concussion.
She noted one of the complainants, who was trying to assist the accused man on the night in November, 2021, had said she was focused on his excessive alcohol consumption and a suspected head injury he had sustained as she tried to aid him. This, Ms Leader said, underlined that the head injury was “in it from the start”.
Her client also exhibited a “staring, glaring” expression, was “looking blankly” and repeated the phrase “this one time in band camp” – from the film American Pie. He later had no recollection of the events, though he expressed remorse and said he would face consequences.
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While Ms Leader conceded the man was also intoxicated, having consumed beers and vodka, she believed he had exhibited clear signs of concussion, which was a mental disorder that meant he was not responsible for his actions at the time.
Ms Leader also questioned if the alleged sexual assaults at the centre of the case genuinely met the threshold of a criminal offence as they included an allegation of trying to kiss a male colleague. The other charges relating to the accused putting a hand on the leg of a female colleague and moving it up her shorts, though Ms Leader added this was “nowhere near her private area”.
She was “not suggesting” those actions were “gold standard”, “warranted praise” or were even “acceptable”. But she urged the board, of five male Defence Forces officers, to consider if it was “truly sexualised behaviour” or “truly a sexual assault”.
The court, sitting at McKee Barracks in Dublin, has heard evidence over the last fortnight, with the accused pleading not guilty to the three alleged sexual assaults and the misconduct charge.
Prosecuting counsel, Comdt Sean Coffey, told the board the Defence Forces was an organisation whose members carried firearms. And that unique status meant a disciplinary system had to be composed of those who made up the organisation.
“Without discipline we would cease to be a military at all,” he said, adding the fact the accused had consumed vodka in an area he was not permitted to do so was proof of the charge of breaching good order and discipline.
In relation to the alleged sexual assaults, he said the two complainants had given evidence and were reliable and “trusted” members of the Defence Forces with lengthy records at home and abroad. They were also sober on the night and had never contradicted themselves.
However, the accused man had voluntarily consumed alcohol to the point of being very intoxicated and he could not be excused from his actions while in that condition. Furthermore, the manner in which he had put his hand, twice, on the leg of a female colleague was “inherently indecent”, thus meeting the threshold of sexual assault.
In relation to the male complainant, other colleagues had mentioned seeing him immediately after the alleged sexual assault on him and recalled that he “looked in shock” and was “not himself”.
Comdt Coffey added while the accused man had received a blow to the head – in an incident not being dealt with at the court martial – witness testimony said the blow was not full force and not delivered with a fully clenched fist.
He noted the accused man was able to perform basic tasks afterwards, such as use of the toilet, which suggested he was not suffering from concussion at the time. He said the defence had not put forward enough evidence to prove their client was so impaired, from concussion, he was entitled to the insanity verdict.
The court martial, before Military Judge Col Michael Campion, was due to resume on Wednesday when the board was expected to retire to consider its verdict.
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