A former garda who sexually assaulted an 11-year-old girl and was found in possession of child pornography, has appealed his conviction and the conditions laid down for his post-release supervision.
The 60-year-old, who can't be named to protect the identity of his victim, will be released from custody this Friday having served a three-year sentence. His lawyers argued in the three-judge Court of Appeal that he should not have been tried for possession of child pornography and sexual assault in front of the same jury.
They also argued that a period of three years post-release supervision is "disproportionate".
Colman Cody SC, for the appellant, said the DVD containing child pornography was not relevant to the accusation of sexual assault. He said the evidence that child pornography was found in his client's home had an "enormously detrimental and prejudicial effect when it came to considering the charge of sexual assault." He pointed out that the evidence suggested that the disc had been created at least eight years before the sexual assault and that his client told gardai he did not know it was in his home.
Conor O’Doherty BL for the Director of Public Prosecutions (DPP) said the DVD was discovered when gardai executed a search warrant of the man's home following a complaint by the young girl. He said both offences were of a sexual nature involving children and therefore the facts justified the two counts being tried together.
President of the Court of Appeal Mr Justice George Birmingham, sitting with Mr Justice Seamus Woulfe and Ms Justice Isobel Kennedy, reserved judgement.
In 2018 the appellant was convicted after a trial at the Circuit Criminal Court of sexually assaulting the then 11-year-old girl at his apartment on an unknown date between February and September of 2016. He was also convicted of possession of child pornography at his apartment on September 15 of the same year.
He was sentenced to four years and six months imprisonment with the final 18 months suspended for the sexual assault charge. The suspended portion was imposed on the condition that he be subject to three years of post-release supervision by the Probation Service. A sentence of nine months for possession of child pornography ran concurrently.
The complainant told gardai that she was sexually assaulted by the man, her neighbour, after she went to his apartment to retrieve a Barbie DVD. He placed his hand on her vagina, she said, and then warned her not to tell anyone.
The DPP also said there was evidence of "grooming behaviour" over an extended period.
Following the girl's complaint gardai executed a warrant to search the man's apartment and found a child's swimming goggles, assorted children's DVDs, adult pornographic DVDs, a girl's school uniform and a handwritten note in child-like writing. They also discovered a DVD which was found to contain eleven images of child pornography and a further 123 pictures of girls under the age of 17 in "model-like poses" which were not deemed to be illegal under the Child Trafficking and Pornography Act. The disc also contained photographs of the appellant.