Mulligan v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mahon |
| Judgment Date | 18 February 2016 |
| Neutral Citation | [2016] IECA 79 |
| Docket Number | 252/14 |
| Court | Court of Appeal (Ireland) |
| Date | 18 February 2016 |
[2016] IECA 79
THE COURT OF APPEAL
Mahon J.
252/14
Birmingham J.
Sheehan J.
Mahon J.
Criminal Law ? s. 5(1)(a) of the Child Trafficking and Pornography Act 1998 ? s. 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 ? Appeal against Conviction
Facts: The appellant was convicted of one count of Production of Child Pornography contrary to s. 5(1)(a) of the Child Trafficking and Pornography Act 1998 (The 1998 Act). He was sentenced to four years and six months in prison with the final twelve months suspended on certain conditions. He appealed against his conviction. Four grounds of appeal were lodged on behalf of the appellant; i) the trial judge erred in finding the material, upon which the appellant was convicted, as ?child pornography? within the meaning of the 1998 Act, ii) the search warrant issued pursuant to s. 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 was invalid, iii) the trial judge erred by admitting into evidence that which was seized during a search and finally, the trial judge erred in the manner in which she charged the jury.
Mahon J: In relation to the first ground of appeal the court determined that the trial judge was correct in finding that the material in question was capable of being considered ?child pornography? within the meaning of s. 2(1) of the 1998 Act. The appellant had contended in relation to the second and third grounds of appeal that the warrant did not specify the arrestable offence that was being investigated and was therefore invalid. Furthermore, the evidence relating to the child pornographic material found to have been stored on his computer hard drive ought not to be admitted into evidence. The court was satisfied that the search warrant was valid and that the evidence obtained was admissible evidence. Finally, it was contended on behalf of the appellant that the trial judge ought to have advised the jury that the evidence must satisfy them beyond reasonable doubt that the appellant had produced material ?that was child pornography, knowing at the time that it was child pornography.? The court concluded that the 1998 Act did not provide a basis for defending a charge of knowingly producing child pornography because the producer of same was unaware that the material stored itself on a computer in a manner capable of being downloaded, or that he was incapable, due to a lack of skill to do so. The appeal was dismissed as all the grounds of appeal failed.
The appellant was convicted of one count of Production of Child Pornography contrary to s. 5(1)(a) of the Child Trafficking and Pornography Act 1998 on 16th October 2014, following a two-day trial at the Circuit Criminal Court in Dublin. He was sentenced on 20th November 2014 to a term of imprisonment of four years and six months, to date from 7th July 2013, and with the final 12 months of that sentence suspended on certain conditions. On that date, he was also sentenced in relation to other offences in respect of which he had earlier pleaded guilty.
The ?Particulars of Offence? as put to the jury at the conclusion of the trial was as follows:
?You, Mark Mulligan, between 9th March 2013 and 17th day of March 2013 at Station Way, Clongriffin, Dublin 13, did knowingly produce child pornography.?
The appellant has appealed against his conviction on the above count, and also against severity of sentence in relation to all three counts. This judgment relates solely to the conviction appeal.
Gardaí sought and obtained a search warrant for the appellant's residence at Apartment 4, Block 10, Railway Road, Clongriffin, Dublin 13 on 5th July 2013. Two days later, the gardaí entered the apartment on foot of that warrant and conducted a search, whereupon a computer and a computer storage device were seized.
When analysed, the computer hard drive and storage device were found to contain photographs of children and an electronic record of a conversation between the appellant and a third party on Skype. This appeal is concerned only with the latter, being the electronic record of a conversation that took place between the appellant and a third party and which commenced on 9th March 2013.
The Skype software programme (called SkypeAlyzer) automatically recorded the conversation and stored it within that programme. While it was possible for the appellant, or indeed a third party, to retrieve and reproduce and/or copy into document form the said recorded content there was no evidence to suggest that the appellant or anyone else had in fact done so, (with the exception of the investigating gardaí). Indeed, it was, and is, the appellant's stated position that he was unaware that the material in question had been recorded within his computer and could be retrieved or printed in document format as indicated.
The content of the recorded conversation was particularly graphic. It referred, in the crudest detail, to acts of the gross rape, sexual assault and severe torture of young children in terms which can only be described as extremely depraved, disturbing and horrific.
Grounds of appeal have been lodged on behalf of the appellant and they are:
(i) That the learned trial judge erred in law in finding that the material, the production of which the appellant was convicted, was capable of being considered ?child pornography? within the meaning of the Child Trafficking and Pornography Act 1998;
(ii) that the learned trial judge erred in law in finding that the search warrant issued on 5th July 2013 was valid in law;
(iii) that the learned trial judge erred in law in admitting evidence that was seized during a search of the appellant's home on 7th July 2013;
(iv) that the learned trial judge erred in law in the manner in which she charged the jury in respect of the intent required by the Child Trafficking and Pornography Act 1998 for the production of child pornography to be an offence.
It is appropriate at this juncture to consider the relevant provisions of the Child Trafficking and Pornography Act 1998:
?5(1) Subject to section 6(2) and section 6(3), any person who
?(a) knowingly produces, distributes, prints or publishes any child pornography ? shall be guilty of an offence and shall be liable ?
(v) on some reconviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or both, or
(vi) on conviction on indictment to a fine or to imprisonment.?
The expression ?child pornography? is defined in section 2 of the Act in the following terms:
?child pornography? means?
?(a) any visual representation?
(i) that shows or, in the case of a document, relates to a person who is or is depicted as being a child and who is engaged in or is depicted as being engaged in explicit sexual activity,
(ii) that shows or, in the case of a document, relates to a person who is or is depicted as being a child and who is or is depicted as witnessing any such activity by any person or persons, or
?
irrespective of how or through what medium the representation, description or information has been produced, transmitted or conveyed and, without prejudice to the generality of the foregoing, includes any representation, description or information produced by or from computer-graphics or by any other electronic or mechanical means ??
The 1998 Act defines ?document? as including:
?(a) any book, periodical or pamphlet, and
(b) where appropriate, any tape, computer disk or other thing on which data capable of conversion into any such document is stored?
It was submitted on behalf of the appellant that the material in question was not ?child pornography? within the meaning of the 1998 Act, or in the ordinary sense in which that word is commonly used. Central to this contention is the suggestion that the material was not the conventional visual representation of a child being abused or engaging in sexual activity; it did not use images of children, nor did it show or suggest that any particular child had actually been abused. It was submitted that ?the material might best be described as a fantasy conversation between the appellant and the other party?.
Allied to this submission is the case that the appellant maintained that he was unaware that the material was being stored within his computer and that it was never intended that it be so stored or produced or be capable of being produced into document form. It was not suggested by the respondent that this was not the case. The learned trial judge ruled that the material stored on the hard drive was capable of being downloaded into document format and therefore capable of satisfying the relevant provisions of the Act of 1998. She ruled as follows:
?Alright, the Court is dealing here with the Child Trafficking and Pornography Act 1998, and the Court has been told that we are dealing here with, in effect, text messages over the Internet which were electronically stored data on two computers. The Court is asked whether they come within the definitions as set out in the Child Trafficking and Pornography Act 1998. The Court is concerned here with the interpretation section of that Act. The Court has heard from the prosecution witness as regard to the storing of these messages on Skype and has been advised that they can be converted into a document, pamphlet and is capable of conversion into a document. The defence submits that here is a vague discussion between people and it does not come within the definition of a document. The Court determines that these messages were stored on hard drive that are capable of being converted...
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Attorney General v Martin Jude Wall
...any tape, computer disk or other thing on which data capable of conversion into any such document is stored.” 26 In Mulligan v. DPP [2016] IECA 79, a computer hard drive and storage device were found to contain photographs of children and an electronic record of a conversation between the a......