DPP v P.M.

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Edwards
Judgment Date21 Dec 2015
Neutral Citation[2015] IECA 325
Docket NumberAppeal No. 183/2014

[2015] IECA 325

THE COURT OF APPEAL

Edwards J.

Appeal No. 183/2014

Birmingham J.

Sheehan J.

Edwards J.

The People at the Suit of the Director of Public Prosecutions
V
P.M.
Appellant

Conviction — Sexual exploitation of a child — Admission of evidence — Appellant seeking to appeal against conviction — Whether trial judge erred in law and in fact in admitting evidence

Facts: The appellant is the father of a four year old daughter. On the 10th June, 2010, a member of the public found a mobile phone crushed on the road. Amongst the remnants was an SD card which he kept intending to make use of it himself. However, when he had inserted it into his own mobile phone he found that disturbing images were stored on it of an ostensibly sexual nature and involved an adult and a very young child, the appellant’s daughter. The member of the public recognised the child, who was living in his locality, and immediately proceeded to a Dublin suburban Gardaí station to report what he had discovered. The Gardaí commenced an immediate criminal investigation. On the 11th June, 2010, the appellant was approached by Garda Inspector Delmar and by Garda L’Estrange, and was asked if he would be willing to make a cautioned statement to assist with the investigation. The appellant agreed to do so, and he accompanied Garda L’Estrange to a Gardaí station in south County Dublin accompanied by Garda L’Estrange and Detective Garda Sheahan. The appellant proceeded to make a statement under caution. The appellant was then arrested on the 23rd of June, 2010, by Detective Sergeant Woods on suspicion of having committed an offence under s. 3 of the Child Trafficking and Pornography Act 1998, following which the appellant was brought to the same Gardaí station. The appellant was interviewed under caution in the course of his detention by Detective Sergeant Woods and Garda Jennings. The appellant was convicted by a jury in the Dublin Circuit Criminal Court on the 20th May, 2014, on counts including encouraging or knowingly facilitating the production of child pornography contrary to s. 5(1) of the 1998 Act, sexual exploitation of a child contrary to s. 3 of the 1998 Act, and child cruelty contrary to s. 246 of the Children Act 2001. On the 31st July, 2014, the appellant was sentenced to five years imprisonment, with the last twelve months thereof suspended, on the first and second of those counts, respectively; and to three years imprisonment on the third of those counts. All sentences were to date from the 31st July, 2014, and were set to run concurrently. The appellant appealed to the Court of Appeal against his convictions on the grounds that: 1) the trial judge erred in law and in fact in admitting evidence, namely the cautioned written statement of the 11th June, 2010 and notes of the interview conducted on the 23rd June, 2010; 2) the trial judge erred in law and in fact in failing to direct an acquittal on those three counts; 3) the verdict of the jury on those three counts was, in all the circumstances, perverse.

Held by Edwards J that the trial judge was careful in her assessment of the fairness of the procedures adopted and in her deliberations as to whether or not the evidence should be excluded even if it was voluntary, as she had in fact found. In the Court’s view, the conclusions arrived at by the trial judge, namely that the admissions were in fact voluntary and that it was appropriate to admit them notwithstanding her reservations concerning the evidence of Garda L’Estrange in relation to how the interview on the 11th June, 2010, was conducted, were legitimately open to her on the evidence, and her ruling disclosed no error. The Court considered that the trial judge was correct: firstly, in her assessment that there was sufficient evidence on all of the charges to allow them to go to the jury; and, secondly, that in so far as there were aspects of the evidence that were, depending on the jury’s view of that evidence, potentially inconsistent with the prosecution’s case, or potentially favourable to the accused, it was a matter for the jury to assess that evidence and to determine what weight to attach to it in the light of the evidence as a whole. Edwards J noted that the judge would only have been obliged to withdraw the case from the jury if she was satisfied that no jury, properly instructed, could convict on the available evidence; she was not so satisfied, correctly in the Court’s view, and properly allowed the case to proceed to the jury.

Edwards J held that the appellant’s trial was satisfactory and that his conviction was safe. The Court held that the appeal against conviction be dismissed.

Appeal dismissed.

Judgment of the Court delivered on the 21st day of December 2015 by Mr. Justice Edwards .
Introduction
1

In this case the appellant appeals, in the first instance, against his conviction by a jury in the Dublin Circuit Criminal Court on the 20th of May, 2014, on three counts on the indictment before them, namely encouraging or knowingly facilitating the production of child pornography contrary to s. 5(1) of the Child Trafficking and Pornography Act 1998 (count no. 2); sexual exploitation of a child contrary to s.3 of the Child Trafficking and Pornography Act 1998, as substituted by s. 3(2) of the Criminal Law (Human Trafficking) Act 2008 (and as amended by s. 6 of the Criminal Law (Sexual Offences)(Amendment) Act 2007) (count no. 3); and child cruelty contrary to s. 246 of the Children Act 2001 (count no. 4).

2

On the 31st of July, 2014, the appellant was sentenced to five years imprisonment, with the last twelve months thereof suspended, on counts 2 and 3, respectively; and to three years imprisonment on count no. 4. All sentences were to date from the 31st of July, 2014, and were set to run concurrently. In the event that he is unsuccessful in his appeal again his convictions, the appellant also appeals against the severity of his sentences. However, this judgment deals only with his appeal against his convictions.

The Grounds of Appeal
3

The appellant relies upon three grounds of appeal:

1. The trial judge erred in law and in fact in admitting evidence, namely:

(a) A cautioned written statement of the 11th day of June, 2010, made at [a named] garda station.

(b) Notes of an interview conducted on the 23rd day of June at [the said named] garda station.

2. The trial judge erred in law and in fact in failing to direct an acquittal on counts 2, 3 and 4 on the indictment laid against the accused.

3. The verdict of the jury on counts 2, 3 and 4 was, in all the circumstances, perverse.

The Facts of the Case
4

On the 10th of June, 2010, a member of An Garda Siochána stationed at a Dublin suburban garda station, was approached by a member of the public who had found a mobile phone crushed on the road. Amongst the remnants of this mobile phone was an SD card which appeared to be undamaged. The member of the public concerned had kept the SD card intending to make use of it himself. However, when he had inserted the SD card into his own mobile phone he found that disturbing images were stored on it. These were of an ostensibly sexual nature and involved an adult and a very young child. The member of the public recognised the child, who was living in his locality, and immediately proceeded to the said garda station to report what he had discovered.

5

Following the said report, the gardaí commenced an immediate criminal investigation. Recognising that the case also raised child protection issues that might potentially require urgent action, they also made the HSE aware of the facts in so far as they were known. It was rapidly confirmed that the child in the images on the SD card was ‘A’, the then four year old daughter of the appellant and the appellant's ex-partner ‘T’.

6

On the following day, the 11th of June, 2010, the HSE sought, and successfully obtained, an interim care order under the Child Care Act 1991 in respect of ‘A’. The appellant and ‘T’ were both in attendance at the District Court for the interim care order hearing. The appellant's mother was also present. At the conclusion of the hearing, the appellant was approached by Garda Inspector Mary Delmar and by Garda David L'Estrange, and was asked if he would be willing to make a cautioned statement to assist with the investigation. The appellant agreed to do so, and he and his mother then accompanied Garda L'Estrange back to their home address, from where, a short time later, the appellant further travelled to a garda station in south County Dublin accompanied by Garda L'Estrange and, another garda, Detective Garda Denis Sheahan.

7

The reason for going to the appellant's home address in the first instance was that a search of that premises by gardaí was then underway pursuant to a warrant that had been obtained from the District Court under s. 7 of the Child Trafficking and Pornography Act 1998.

8

On arrival at the said garda station, the appellant was taken to an interview room. The member in charge of the garda station was not informed of the appellant's presence in the garda station. It was explained to the appellant in the interview room by Detective Garda Sheahan that he was not under arrest, and that he was free to leave at any time. It was further explained to the appellant that he was entitled to consult with a solicitor if he wished. The appellant was further cautioned in the normal way. When asked if he understood the caution, he indicated that he did; then, upon being invited to do so, the appellant signed the written record of the caution that had been administered to him. The appellant proceeded to make a statement under caution, the subsequent admissibility of which was unsuccessfully challenged in the course of a voir dire at the appellant's subsequent trial.

9

The said cautioned statement was in the following terms (save for such...

To continue reading

Request your trial
1 cases
  • DPP v P.M.
    • Ireland
    • Court of Appeal (Ireland)
    • 19 February 2016
    ...to repeat them. Instead, readers are referred to the said earlier judgment i.e., The People (Director of Public Prosecutions) v. P.M. [2015] IECA 325 (unreported, Court of Appeal, 21st December 2015), a copy of which is to be found on the Courts Service website (www.courts.ie). The impact o......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT