The Court of Appeal has dismissed Mark Mulligan’s appeal against his conviction for producing child pornography, upholding the trial judge’s decisions on stored Skype messages, a search warrant and the jury’s direction on intent.
The judgment, delivered by Mr Justice Mahon on 18 February 2016, concerned the conviction appeal only. Mulligan had also appealed the severity of sentences imposed for three counts, but the court said that issue was outside the scope of this judgment.
Mulligan was convicted after a two-day trial in the Circuit Criminal Court in Dublin on 16 October 2014. The count alleged that he knowingly produced child pornography at Station Way, Clongriffin, Dublin 13, between 9 and 17 March 2013. He was sentenced on that count to four years and six months’ imprisonment, with the final 12 months suspended on conditions. The sentence was to run from 7 July 2013. He had pleaded guilty to two other offences.
The conviction appeal concerned an electronically stored Skype conversation that began on 9 March 2013. The Court of Appeal said the programme had automatically recorded and stored it. Gardaí retrieved the conversation in document form during their investigation. The judgment records Mulligan’s position that he did not know it had been recorded or could be retrieved or printed, and says there was no evidence that he or anyone else had retrieved it before the investigating gardaí.
The court held that the text data was capable of conversion into a document under the Child Trafficking and Pornography Act 1998. It said the trial judge was right to admit it and rejected the argument that the material fell outside the Act because it was not a conventional visual depiction.
The court also rejected challenges to the search warrant and the admission of items seized from Mulligan’s residence. The warrant was obtained during an investigation into a harassment allegation involving a text message. Although it did not identify a specific arrestable offence, the court said the law did not require the particular offence to be named and found the warrant valid and the evidence admissible.
Finally, the court rejected the argument that the jury had to be told Mulligan must have known the material met the statutory definition of child pornography. It concluded that the trial judge had adequately directed the jury on the meaning of “knowingly”. The conviction appeal was dismissed.