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Prosecuted for receiving something unwanted and deleteing.

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    #92
    CIARAN_BOYLE
    Moderators, Sports Moderators Posts: 14,599 Mod ✭✭✭✭CIARAN_BOYLE


    Discodog wrote: »
    I suspect that she relied on her solicitor.

    If course she did. She isn't a lawyer and would be expected to.

    It is my understanding that in order to submit something in appeal known that you or your counsel should have submitted in the first instance you essentially have to go and prove your counsel was incompetent.

    At any rate even if the court orders it destroyed I am sure it will be held for a specified period pending an appeal. Even if it is in my opinion very unlikely that new evidence could be gleaned from it in an appeal.


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    #93
    Discodog
    Registered Users Posts: 15,852 ✭✭✭✭Discodog


    CIARAN_BOYLE wrote: »
    If course she did. She isn't a lawyer and would be expected to.

    It is my understanding that in order to submit something in appeal known that you or your counsel should have submitted in the first instance you essentially have to go and prove your counsel was incompetent.

    At any rate even if the court orders it destroyed I am sure it will be held for a specified period pending an appeal. Even if it is in my opinion very unlikely that new evidence could be gleaned from it in an appeal.

    Maybe an expert could show that she deleted it & when. I wouldn't just trust the Garda forensics. This type of evidence is always assumed to be correct but history shows that it can be very wrong.


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    #94
    CIARAN_BOYLE
    Moderators, Sports Moderators Posts: 14,599 Mod ✭✭✭✭CIARAN_BOYLE


    Discodog wrote: »
    Maybe an expert could show that she deleted it & when. I wouldn't just trust the Garda forensics. This type of evidence is always assumed to be correct but history shows that it can be very wrong.

    Yeah but that's not new evidence you can choose to submit in an appeal. That's evidence that was available for the original hearing but it was decided not to use it.

    As I said there's complex rules about new evidence in appeals.


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    #95
    Discodog
    Registered Users Posts: 15,852 ✭✭✭✭Discodog


    CIARAN_BOYLE wrote: »
    Yeah but that's not new evidence you can choose to submit in an appeal. That's evidence that was available for the original hearing but it was decided not to use it.

    As I said there's complex rules about new evidence in appeals.

    The evidence may of been available to the prosecution. It wouldn't be available to the defence unless they were able to have the phone forensically examined.

    If a solicitor says "they have evidence & you can't deny it, so best to plead guilty". Most people would.


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    #96
    CIARAN_BOYLE
    Moderators, Sports Moderators Posts: 14,599 Mod ✭✭✭✭CIARAN_BOYLE


    Discodog wrote: »
    The evidence may of been available to the prosecution. It wouldn't be available to the defence unless they were able to have the phone forensically examined.

    If a solicitor says "they have evidence & you can't deny it, so best to plead guilty". Most people would.

    The defense had the option to forensically examine the phone. They chose not to.

    They can't come out and say let's forensically examine it now. It wouldn't be new evidence.


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    #97
    Discodog
    Registered Users Posts: 15,852 ✭✭✭✭Discodog


    CIARAN_BOYLE wrote: »
    The defense had the option to forensically examine the phone. They chose not to.

    They can't come out and say let's forensically examine it now. It wouldn't be new evidence.

    So if you are badly advised by your solicitor it's just tough luck ?


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    #98
    coylemj
    Registered Users Posts: 25,361 ✭✭✭✭coylemj


    She pleaded guilty so if she was to appeal, it would be solely against the severity of the sentence. This was the Circuit Court so it's not like an appeal from the District Court where they rehear the entire case.

    Attempting to overturn the entire case because she received bad legal advice (from a SC) would be very risky and probably doomed to fail.

    And given that she got a suspended sentence, she really has no business taking an appeal beause one of the options open to the appeal court is to substitute a real jail term (and possibly longer than the original sentence) for the suspended sentence i.e. the sentence can be altered up or down when you appeal.

    On the disposal of the phone, this poster is correct....
    CIARAN_BOYLE wrote: »
    At any rate even if the court orders it destroyed I am sure it will be held for a specified period pending an appeal.


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    #99
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    CIARAN_BOYLE wrote: »
    Is there a duty to properly dispose of illegal objects or images?



    If you plead guilty I don't believe it is possible to appeal based on the evidence but instead only on points of law.

    It is possible, but extremely rare that you can resile your plea on appeal, it would very much depend on the facts of each individual case, but I think it can be based on evidential matters as well as on a point of law.


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    #100
    Claw Hammer
    Registered Users Posts: 6,165 ✭✭✭Claw Hammer


    This was an acquittal on the basis of not knowingly having possession of child porn.
    It seems on all fours with the present case.
    https://www.irishexaminer.com/breakingnews/ireland/costs-refused-in-child-porn-acquittal-case-187516.html


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    #101
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    Claw Hammer wrote: »
    This was an acquittal on the basis of not knowingly having possession of child porn.
    It seems on all fours with the present case.
    https://www.irishexaminer.com/breakingnews/ireland/costs-refused-in-child-porn-acquittal-case-187516.html

    Does it?

    In that case he didn't even know his computer received them (that's my reading of it) in the first place whereas in the first case the accused did:-
    Mr Vaughan Buckley cited the State’s failure to find viruses on Mr Foley’s computer which were discovered by defence experts. He said the prosecution had relied on the contents of temporary internet files which he said had been shown in similar cases to store images without the knowledge of the computer user.

    That for a start is a huge difference.


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    #102
    Claw Hammer
    Registered Users Posts: 6,165 ✭✭✭Claw Hammer


    GM228 wrote: »
    Does it?

    In that case he didn't even know his computer received them (that's my reading of it) in the first place whereas in the first case the accused did:-



    That for a start is a huge difference.

    He admitted looking at the images and sai he didn't know that they were retained in the temporary files folder. In the present case, it seems that the defendant received an image, sought to delete it but left a copy of the image in the phone. The issue is whether she knew that she was retaining a copy of the image. It think is is the same legal issue.


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    #103
    [Deleted User]
    Posts: 0 ✭ [Deleted User]


    Claw Hammer wrote: »
    He admitted looking at the images and sai he didn't know that they were retained in the temporary files folder. In the present case, it seems that the defendant received an image, sought to delete it but left a copy of the image in the phone. The issue is whether she knew that she was retaining a copy of the image. It think is is the same legal issue.




    Indeed, especially since the prosecution admitted, after the verdict, that it was virtually impossible to to be sure that something deleted had actually been removed from a phone.


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    #104
    joeguevara
    Registered Users Posts: 8,048 ✭✭✭joeguevara


    Claw Hammer wrote: »
    He admitted looking at the images and sai he didn't know that they were retained in the temporary files folder. In the present case, it seems that the defendant received an image, sought to delete it but left a copy of the image in the phone. The issue is whether she knew that she was retaining a copy of the image. It think is is the same legal issue.

    It would appear that the crux of this case is did she access (or whether it was reasonable she knew she could access) the document after deleting from whatsapp folder.

    The case you cited is different. He accessed it rather than downloaded it. He didn't know that it was in his TIF therefore did not knowing possess.


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    #105
    Claw Hammer
    Registered Users Posts: 6,165 ✭✭✭Claw Hammer


    joeguevara wrote: »
    It would appear that the crux of this case is did she access (or whether it was reasonable she knew she could access) the document after deleting from whatsapp folder.

    The case you cited is different. He accessed it rather than downloaded it. He didn't know that it was in his TIF therefore did not knowing possess.

    It is not about access. It is storing. You can look but cannot hold. There is no offence of looking per se. The offence is one of storing images. Both cases turn on the knowing storage.


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    #106
    joeguevara
    Registered Users Posts: 8,048 ✭✭✭joeguevara


    Claw Hammer wrote: »
    It is not about access. It is storing. You can look but cannot hold. There is no offence of looking per se. The offence is one of storing images. Both cases turn on the knowing storage.

    Agreed. The point of my post was the incident reported in the paper, it was clear that he did not know it was stored.

    The case in the op, hinges on whether she knew, even after it was deleted from whatsapp, it was still stored on her phone. The only way she could have known, or should have known it was still on her phone, was whether she accessed the file on her phone after the whatsapp deletion, or she knew ore reasonable that she could access it on her phone.


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