The jury in the trial of the two boys accused of Ana Kriegel's murder were prevented from hearing that Boy A had searched online for "child porn" and "animal porn" and had thousands of pornographic images on two mobile phones.
Justice Paul McDermott refused to allow the prosecution to lead the evidence in front of the jury as he said it was "highly prejudicial" to the accused.
The prosecution also wanted the jury to know that Boy A filled out a questionnaire in which he described himself as "strange" and that he thinks "differently" and feels "not much". Justice McDermott said the responses to the questionnaire were not relevant.
When gardai searched Boy A's home on May 24, 2018 they discovered two mobile phones in his bedroom. One mobile phone had 5001 images, a "vast amount" of which were pornographic, according to Brendan Grehan SC for the prosecution. Garda Joan Sheridan examined the phone and identified ten images that gardai believed were of particular interest. One was described as an image of a man and woman in which the woman was wearing a school uniform and was exposed from the waist down. Another was of a woman in her underwear bound to a wooden post. Another was of a man squeezing the throat of a partially naked woman. Another showed a woman with her wrists and ankles bound, a gag in her mouth and a person standing behind her.
On the same phone Gda Sheridan found searches for "child porn," dark web," horse porn," and "animal porn" all from November 2017. On Nov 12, 2017 there was a search for "teen sweet Russian".
An iPhone 4 taken from Boy A's room and registered under his name had 7,485 images and again Mr Grehan said a "vast amount" were pornographic. 42 images on the iPhone were considered relevant to the garda investigation into Ana's death.
Also on that phone was a picture of a person wearing a white homemade mask that the prosecution said was relevant because Ana's blood was found on a homemade mask taken from Boy A's bedroom, suggesting he was wearing the mask during the assault on Ana. There was also a video of a person striking a piece of concrete with a homemade weapon. The prosecution alleged that the video revealed an interest in making and using homemade weapons.
Justice McDermott said that if Boy A were found guilty the pornographic material could be helpful to a professional in determining how or why the offence occurred but, he said, "that is a separate issue to this trial".
He also noted that the material on the phone preceded the offence by a number of months. The "extensive nature of the downloads", he said, would be "highly prejudicial to the fair trial of the accused". Evidence must be "cogent and must not invite speculation", he said adding that he was not satisfied it advanced the prosecution case.
The defence also failed in some applications to prevent the jury hearing evidence. Justice McDermott dismissed a claim by Boy A's lawyers that clothing and a phone gardai took from Boy A while Ana was still a missing person was "unfairly obtained".
Gardai took Boy A's clothes when they were investigating an allegation by Boy A that he was assaulted by two men in the park on the same evening that Ana went missing. When gardai later suspected Boy A of Ana's murder they were able to examine Boy A's clothes and discovered Ana's blood on his boots.
Boy A's defence argued that gardai had taken his clothes and phone through "subterfuge" and had engaged in a "strategy" to gather evidence relating to the investigation into Ana's disappearance and death. Brendan Grehan SC for the prosecution pointed out that when gardai took Boy A's clothes Ana's body had not been found. Boy A was not a suspect and gardai took those clothes because Boy A claimed he had been assaulted. He also pointed out that as far as gardai knew Boy A was helping gardai with their enquiries into Ana's disappearance as one of the last people to see her.
Justice McDermott said any suggestion that what gardai had done was unfair "doesn't hold water". He pointed out that the "extensive and desperate" search for Ana Kriegel was ongoing at the time.
He added: "I wholly reject the proposition that there was any subterfuge or economy of the truth involved or any attempt by An Garda Siochana to obtain the phone by subterfuge or unfair means. That is a wholly unrealistic submission in the context of this case."
In relation to the taking of the boy's clothes he said there was "no statable basis on which to argue those materials could be regarded as unfairly obtained." Detective Garda Gabriel Newton, who took the boy's clothes, was acting according to instructions given to her by her inspector for the legitimate purpose of investigating an alleged assault, he said.
He added: "I certainly don't accept that Det Gda Newton was trying to pull the wool over anyone's eyes, and not the young boy's." The boy was not a suspect at the time, Justice McDermott said, and "there was nothing to suspect him of." Gardai were asking for Boy A's help to find out where Ana was last seen, he said and, "to put another connotation on it would be entirely unfair and wrong."
He noted that at the time the boy's father was concerned that his son was assaulted and anxious that other children should not be at risk. Boy A's father wanted the matter "pursued with full rigour" and gardai were presented with an allegation that one boy had been seriously assaulted in the park around the same time that Ana went missing having last been seen in the same park. Justice McDermott said the garda investigation into the alleged assault on Boy A was "rigorous and bona fide".
Boy A's defence further tried to prevent DNA evidence going before the jury on the grounds that a superintendent, when filling out a form authorising the DNA sample to be taken, referred to the wrong Act. This was, they said, a "fundamental flaw in the mandated statutory procedure".
Justice McDermott dismissed the defence's arguments saying that while the superintendent made an error, it was a "simple human error" and was not negligent or reckless.
He said the correct Act was complied with when gardai took the sample and when the Superintendent gave verbal authorisation for the sample to be taken.
There was further legal argument over whether a photograph of a mannequin wearing what gardai dubbed Boy A's "murder kit" should be shown to the jury. The mannequin was dressed in the dark grey sweatpants, black hoodie with hood up, gloves, boots, shin pads, knee pads, snood and zombie mask that the boy was believed to be wearing during the assault on Ana. Refusing to allow the evidence, Justice McDermott said the image was "prejudicial without advancing much by way of probative value."
Justice McDermott also ruled out most of a questionnaire that was found in Boy A's room saying it was a "teenage document".
The list of questions and answers were:
What are your favourite books?
What are your favourite sports?
What are your favourite movies?
What is your favourite music?
Are you single or taken?
I would describe myself as:
crazy, funny, adventurous,
I hope to:
do well in life
angry when someone tries to annoy me or hits me