DPP v O'Connor
| Jurisdiction | Ireland |
| Judge | Birmingham P. |
| Judgment Date | 28 January 2020 |
| Neutral Citation | [2020] IECA 14 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [27/19] |
| Date | 28 January 2020 |
[2020] IECA 14
The President
McCarthy J.
Kennedy J.
[27/19]
THE COURT OF APPEAL
Conviction – Possession of child pornography – Unavailable witness – Appellant seeking to appeal against conviction – Whether the judge erred in her rulings relating to an unavailable witness
Facts: The appellant, Mr O’Connor, on 7th November 2018, following a trial, was convicted on four counts of knowingly having in his possession child pornography. Subsequently, on 15th February 2019, he was sentenced to a term of two years’ imprisonment. The said trial was a retrial, a jury having been discharged on a previous occasion. The appellant appealed to the Court of Appeal against conviction. He raised four issues in his notice of appeal: (i) the judge erred in her rulings relating to an unavailable witness; (ii) the judge erred in relation to the search conducted by Gardaí; (iii) the judge erred in refusing an application for a direction which was made at the close of the prosecution case; and (iv) the judge’s charge to the jury contained errors.
Held by the Court that the judge was correct to proceed with the trial and was fully justified in coming to the view that the application for the warrant was a valid one and that the search carried out on foot of it was lawful. The Court held that a situation where other pornography was found on the accessible area of the appellant’s computer, which had been deleted at a time when it seemed only the appellant was using the computer, provided a rational basis for concluding that the material in the unallocated clusters had been present on the computer at a time when the computer was under the control of the appellant. Having read the judge’s charge and recharge as a whole, as well as her response to the intervention, it seemed to the Court that the matter was really put beyond doubt; the issue the jury had to consider was whether they could be satisfied beyond reasonable doubt that at a point between acquisition of the computer by the accused and the seizure of the computer in the course of the Garda search, the accused had possession, knowingly, of the images.
The Court held that, having rejected all grounds of appeal, it would affirm the conviction and dismiss the appeal.
Appeal dismissed.
On 7th November 2018, following a trial, the appellant was convicted on four counts of knowingly having in his possession child pornography. Subsequently, on 15th February 2019, he was sentenced to a term of two years' imprisonment. The trial had commenced on 23rd October 2018, and ended in a conviction on 7th November 2018. It is worth noting that the said trial was a retrial, a jury having been discharged on a previous occasion.
By way of background, it should be explained that the appellant, Mr. Joseph O'Connor, is a retired member of An Garda Síochána who served in the force for many years. In August 2011, an individual, Mr. Patrick Farrell, now deceased, came forward making allegations of sexual abuse, false imprisonment, and rape against Mr. O'Connor. These offences were alleged to have occurred on 28th and 29th July 2011 at the home of Mr. O'Connor. The complaint was by phone to then Detective Inspector Colm Fox, also now deceased and who had been promoted to the rank of Detective Superintendent prior to his death. The response of Mr. O'Connor to learning of the complaint was to go to a Garda station to provide a statement. He explained that he had consensual sex with Patrick Farrell, and that thereafter, Mr. Farrell stole his Garda ID card, handcuffs and a sum of money. The statements that Mr. Farrell provided to Gardaí contained a reference to the presence of child pornography on the computer of Mr. O'Connor. A search warrant was applied for and obtained by Detective Sergeant (now Detective Inspector) Anne Ellis. The application for the warrant came after discussions with her Supervisor, the late Detective Superintendent Colm Fox. In the course of a search of Mr. O'Connor's dwelling, a mobile phone and laptop were seized. Child pornography was discovered on the laptop.
The appellant was interviewed on 21st June 2012. He denied downloading or viewing child pornography. He said that hundreds of men had visited his home and that any of them could have used the laptop which was on the table. He added that Mr. Farrell had made up allegations against him and that he had, in fact, corrupted the computer in question on 30th July 2011.
By way of offering greater detail of the counts on the indictment, it should be noted that:
Count 1 alleged the knowing possession of two images, one image of child-explicit sex and one image of child sexual exposure on a date unknown between 30th July 2011 and 2nd August 2011.
Count 2 alleged the knowing possession of 56 duplicate images of the two images referred to in Count 1 on a date unknown between 30th July 2011 and 2nd August 2011.
Count 3 alleged the knowing possession of 14 videos of child sex and one video of child exposure on a date unknown between 30th July 2011 and 2nd August 2011 (this referred to material found in the Recycle Bin of the laptop.
Counts 4 and 5 allege the knowing possession of video images on a date unknown between 1st January 2010 and 2nd August 2011, these video images had been found in the ‘Unallocated Files’ on the laptop. These could only be accessed by using special forensic programmes.
The appellant was convicted by unanimous verdict of the jury in respect of four counts and he was acquitted in respect of Count 2.
The appellant raises four issues in his Notice of Appeal:
(i) That the judge erred in her rulings relating to an unavailable witness.
(ii) That the judge erred in relation to the search conducted by Gardaí.
(iii) That the judge erred in refusing an application for a direction which was made at the close of the prosecution case.
(iv) That the judge's charge to the jury contained errors.”
Grounds (i) and (ii) relating to the unavailable witness and the validity of the search are closely linked in that they both rely in part on the tragic death of Detective Superintendent Fox prior to the retrial in November 2018. As the parties dealt with these issues collectively in their respective submissions, we will follow suit in doing so. In essence both issues deal with the appropriateness and fairness of proceeding in the absence of Detective Superintendent Fox who had given evidence in the first trial and was unavailable at the second trial due to his untimely passing. Indeed, an application to the effect that it would be unfair to proceed in Detective Superintendent Fox's absent was made at the start of the second trial.
It was submitted that the unfairness emerged not simply because of the unavailability of a significant witness, but that particular prejudice arose in circumstances where the witness had been cross-examined during the voir dire in the first trial and the jury were then discharged before documentation which had been disclosed after that initial cross-examination could be put to him. This disclosure came in the form of a report authored by Detective Superintendent Fox and dated 3rd August 2011 wherein he concluded that “there [was] no evidence of sexual assault, rape or false imprisonment” which was of some significance to the defence's case. It should also be noted that the decision to discharge the jury came from the trial judge herself on the basis that the jury had been absent for quite some time and that the case was not ready to proceed. No application was brought by the defence seeking to have the jury discharged on that or any other basis.
The additional issue which flowed from the unavailability of Detective Superintendent Fox was that in the course of the first trial, the appellant had sought to challenge the validity of the search warrant. It was contended that Detective Sergeant Ellis had no interest in investigating the allegations of rape, sexual assault and false imprisonment, and that the reference to these items was a “colourable device” designed to gain access to appellant's dwelling to investigate the allegations of child pornography. The late Detective Superintendent Fox had been the supervisor of Detective Sergeant Ellis and the warrant had been sought following discussions between the two. Indeed, it was in this context that that the voir dire of Detective Superintendent Fox had occurred.
The point raised about the unavailability of Detective Superintendent Fox arises in circumstances where the defence were anxious to run a line of argument suggesting that the Gardaí had no interest in investigating the alleged rape, false imprisonment, and sexual assault and that the warrant was obtained on a false basis. The defence sought to argue that the alleged rape, false imprisonment, and assault provided cover for the true intention of investigating the alleged possession of child pornography. The judge ruled on this aspect of the case in the following terms:
“I fully accept that the issues which the defence raises now regarding the role of Detective Inspector Fox and their concern or suspicion that the warrant was obtained through unlawful means, is not something which they argue now that Detective Inspector Fox has tragically passed away. On reviewing the transcript of the trial in January 2018, it is clear that there was a full cross-examination by Mr. Carroll [Senior Counsel for the defence] of Detective Inspector Fox on the issues raised before this Court now, save of course, for the report which was disclosed after his cross-examination. The defence argue that the disclosure of this report strengthens...
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