Photos not in evidence

Judge in child pornography case can’t consider photos found on seized phone

Photos seized from a cellphone won’t be part of the evidence in a child pornography trial in Charlottetown.

Waylon James Molyneaux, 32, appeared before Judge John Douglas in provincial court in Charlottetown on Wednesday for the third day of his trial on charges of making child pornography and possessing child pornography.

Most of the first two days of the trial were spent in a voir dire, which is used to determine if evidence will be admissible. On Wednesday, the voir dire ended, and Crown attorney Lisa Goulden did not seek to have entered into evidence photos the police recovered from Molyneaux’s phone. During the voir dire, the court was shown two videos of interviews that Charlottetown police conducted with Molyneaux after a witness reported seeing nude photos of an underage girl on his phone. Molyneaux signed a consent form allowing the police to search his phone, and the court heard they retrieved 20 photos related to the case.

Earlier in the voir dire, the court heard the investigating officer read part of the consent form to Molyneaux but not all of it. Defence lawyer Peter Ghiz said his client didn’t read the form before signing it.

During Wednesday’s proceedings, Goulden didn’t seek to have the consent form tendered into evidence.

Although Molyneaux’s police interviews and the photos weren’t entered into evidence, Douglas did admit some testimony from the witness who said she saw the photos on Molyneaux’s phone.

Her testimony identifying the photos was not included.

After Douglas dealt with the admission of Crown evidence into the trial, Goulden closed her case.

During the trial, Ghiz was expected to argue his client’s rights were violated when it came to the police search of his phone, but Douglas said that wasn’t necessary with the photos not going into evidence.

When Molyneaux spoke to police, he said he had taken pictures without looking at the screen and he was unaware the photos found on his phone were child pornography.

Molyneaux said he didn’t know what pictures he was shooting and didn’t go back to look at the photos he took.

Ghiz told the court legal issues arose with the witness’s testimony about seeing the photos on Molyneaux’s phone, and the defence would be making submissions about whether the pictures were considered pornographic.

The defence didn’t call any witnesses.

Molyneaux’s trial is adjourned until Oct. 30 when lawyers on both sides will make their submissions.

A publication ban prevents the release of any details that could identify the victim.