A mother-of-three was acquitted of sexually assaulting her children despite evidence she had admitted to abusing them during a lie-detector test, the Court of Appeal was told on Thursday.
The woman was acquitted after a judge ruled that the admissions made during an interview with a forensic psychologist using a polygraph machine were inadmissible as evidence.
The Director of Public Prosecutions (DPP) is now seeking a determination that the judge had "erroneously excluded compelling evidence" when the woman stood trial last July.
The prosecutor has also requested that the acquittal be quashed, as well as an order stating that the respondent is to be re-tried in respect of the complaints on the original indictment.
In papers submitted to the Court of Appeal, it was stated gardaí visited the respondent at a house she was sharing with her husband and children following a tip-off from Europol that someone at that location was uploading child abuse images to the internet.
The images showed young children in a domestic setting being sexually abused by an adult.
In one of the videos, a child can be heard crying as he is abused.
Shortly after gardaí visited the address in the south-west of Ireland, the children were placed into care on foot of a High Court order.
The respondent later agreed to take a lie-detector test conducted by a forensic psychologist using a polygraph after denying to gardaí all knowledge of the abuse and claiming her husband was solely responsible.
However, she later admitted to the psychologist that not only was she aware that her husband was interested in child pornography, she also was aware he had been abusing their children and at times she had taken part in the abuse.
She also admitted to abusing the children when her husband wasn’t there and when she was on her own with them.
Following the admissions, she was charged with four counts of sexual assault against three boys, contrary to Section 2 of the Criminal Law (Rape) (Amended) Act 1990, and one count of allowing a child in her custody to be assaulted, ill-treated and neglected, contrary to Section 246 (1) and (2) of the Children Act 2001.
The alleged offences took place between August 3rd, 2008 and March 25th, 2015.
But after Judge Cormac Quinn at Clonmel Circuit Criminal Court, sitting in Waterford, heard evidence from her interviews with the psychologist during a voire dire - a trial within a trial where evidence is heard in the absence of the jury - he ruled that the evidence should not go before the jury.
Following the ruling, he agreed to a ‘no case to answer’ application by the defence. The woman was acquitted of all charges after this application was unopposed by the DPP.
Michael Delaney SC, for the DPP, told the Court of Appeal that the respondent “clearly knew something of her husband’s activities”.
He said she knew she was going to be interviewed by a specialist psychologist in relation to the abuse allegations and she knew that the expert was going to use a polygraph.
“This must have raised the possibility that the blanket denials she had given gardai would not suffice,” counsel said.
“She had to have had a sense of where the process was going. A choice was open to her after seeing the way the wind was blowing, and she could have discussed matters with her solicitor.”
Referring to the admissions made to the psychologist, Mr Delaney said they “would have been sufficient to have persuaded a jury”.
“It boils down to a question of fairness and it is appropriate for this court to take a fresh look at it,” he added.
Michael Durack SC, for the respondent, said his client only agreed to the polygraph interviews because she had a “great desire to see her children” and was told her chances of being reunited with them would improve if she agreed to “take part in the process”.
“The consent process does not get over the fact that she wants to see her children. She wants to participate in the assessment,” counsel added.
Mr Durack also said there was “no doubt she was told she would not be prosecuted” after agreeing to meet the psychologist.
“If the gardai had adopted the process adopted by [the psychologist], the evidence would not be allowed,” he said.
During submissions, Court President Mr Justice George Birmingham, sitting with Mr Justice Patrick McCarthy and Ms Justice Isobel Kennedy, noted that the respondent “had admitted to her involvement in the criminality when she hadn’t even been suspected.”
“What is unfair about that?” he asked.
Judgment has been reserved.