Gerard Hewitt pictured at Limerick Circuit Court in 2013
A MAN who stuck his head and arm under the door of a changing cubicle at a leisure centre while a woman was changing inside has avoided a prison sentence.
Gerald Hewitt, aged 47, who has an address at Cooleen, Birdhill, County Tipperary had pleaded not guilty to charges under the Public Order Act relating to an incident at the swimming pool in Nenagh on November 1, 2015.
The defendant received a two year suspended prison sentence in 2013 after he admitted sexually assaulting a woman at a house party in Limerick city on March 13, 2011.
Limerick Circuit Court was told the victim in that case woke up during the night to find Hewitt, a married father of three children, performing oral sex on her.
The case relating to the Nenagh offence was originally heard last year by Judge Elizabeth MacGrath but was adjourned for submissions on whether or not Mr Hewitt had been charged under the correct legislation and whether or not the swimming pool constituted a public place.
The court had heard the defendant was charged under the Public Order Act because Ireland does not have “peeping Tom” legislation.
At the original court case in May 2017, the injured party claimed Mr Hewitt spied on her while she was changing at Nenagh Leisure Centre.
She told the court that she met the accused, whom she did not know, in the sauna and that they had chatted briefly before she left to use the Jacuzzi.
Later, the female, who was in her early 20s, went to the unisex locker and changing area. She had a shower in the women's showering facility before going into a cubicle to change.
While drying herself, the woman said she looked down and noticed someone looking up at her from the gap between her cubicle and the one adjacent to it.
She “locked eyes” with the man she had met in the sauna earlier.
She identified this man in court as Mr Hewitt.
The witness told the court that she screamed and pulled her towel around her. She then ran out and called the lifeguards' attention. She said Mr Hewitt ran out of the changing rooms.
The young female said the incident made her feel “totally invaded”.
Since then, she did not feel comfortable going into any toilet or cubicle with a space beneath the partition.
Cross-examined by Kenny Kerins, BL, she said she did not feel threatened when talking to the defendant in the sauna.
It was put to her that Mr Hewitt dropped his mobile phone and reached to retrieve it. She replied that she did not see any phone.
Lifeguard and gym instructor Breda Barry said she heard the scream and immediately responded. She ran into the changing area and saw the injured party with her towel around her.
Ms Barry was informed that the defendant had put his head under the changing cubicle before then running away.
Ms Barry ran outside and saw Mr Hewitt hurrying towards a car. She said that she and the defendant made eye contact.
She noted the registration number of the car and went back to the injured party, who was “hysterical”.
The Gardaí were contacted straight away.
Garda Maureen Finnerty gave evidence of arriving at the scene and meeting the woman, who told her that a man had put his head into her cubicle while she was changing.
Garda Finnerty carried out a check on the vehicle and called to the registered address of Chapel Lane, Birdhill.
Mr Hewitt denied all knowledge of the incident, though he said he may have dropped his phone and he did hear a girl scream. He said he did not look under the cubicle.
In a cautioned statement, the defendant said he did not know why the woman had been surprised and “paid no heed” to it.
He said he reached out to get his phone but denied looking at anyone. He said he did not see anyone following him out of the leisure centre.
Garda Finnerty said CCTV footage of the centre was examined. Mr Hewitt could be seen “leaving in a hurried state” and Ms Barry following him out.
Mr Kerins pointed out that the defendant was charged under the provisions of the Public Order Act. He contended that a changing cubicle was a private place, locked from the inside, and therefore not within the remit of Public Order legislation.
Mr Kerins also questioned whether the incident could be viewed as a breach of the peace.
Referring to case law in that regard, he said the alleged behaviour of his client was not conducive to an offence under the Public Order Act.
Inspector Seamus Maher contended that the incident did occur in the public place, the same as if it had happened in the toilet of a pub.
Insp Maher said the behaviour of the defendant was reckless; his actions made the injured party feel threatened.
Judge MacGrath noted that the incident could be termed a “peeping Tom offence”, for which there was no legislation.
She agreed with Insp Maher that the alleged offence occurred in a public place but agreed that Mr Kerins had a point in relation to the behaviour.
Having considered further submissions, the Judge MacGrath ruled that Mr Hewitt had been in a public place when the offence was committed.
She said his actions had been threatening as defined in the Public Order Act and that they had been reckless.
She imposed a three months prison sentence which she suspended for two years on condition Mr Hewitt keeps the peace..