The Court of Appeal has dismissed Joseph O’Connor’s appeal against his conviction on four counts of knowingly possessing child pornography and affirmed the conviction. It rejected each of the four grounds of appeal, including challenges concerning an unavailable witness, the search of his home, the trial judge’s refusal to direct the jury to acquit on two counts, and the jury charge.
O’Connor was convicted after a retrial in November 2018 and sentenced to two years’ imprisonment in February 2019. The indictment concerned digital material found on a laptop seized during a Garda search. The jury convicted him on four counts and acquitted him on a count alleging possession of duplicate images.
The appeal court held that the retrial could proceed without Detective Superintendent Colm Fox, who had given evidence at the first trial but died before the retrial. The defence argued his absence caused unfairness, particularly because a report he authored after his earlier cross-examination said there was no evidence of sexual assault, rape or false imprisonment. The appeal court agreed with the trial judge that Fox’s role was supervisory and that the report did not undermine the warrant or search. It found no need to stop the trial.
The defence had also argued that allegations of rape, assault and false imprisonment were used as a pretext to obtain access to O’Connor’s home to investigate suspected child pornography. The appeal court upheld the trial judge’s finding that Detective Sergeant Anne Ellis independently decided to seek the warrant while investigating the allegations made by Patrick Farrell. It concluded that the warrant was valid and the search lawful.
The court said the jury had been entitled to decide whether O’Connor knowingly possessed material found in the laptop’s “unallocated” files. The material could be accessed only with specialist forensic programmes. The court noted there was no trial evidence establishing where it came from, and accepted that it was theoretically possible for such material to have been obtained and deleted without the user’s knowledge. Whether that possibility raised a reasonable doubt was for the jury to decide.
After the jury foreman asked whether deleting an image without knowing it remained on a computer could still amount to an offence, the judge restated that the prosecution had to prove knowing possession. The appeal court considered the charge and the judge’s response as a whole and found the issue had been made clear to the jury. It rejected the remaining appeal grounds and dismissed the appeal.