An army sergeant who was found with child pornography images “buried” in the memory of his computer has being acquitted by direction of a judge.
Robert Cole (aged 41) told gardaí that he had accessed child porn after clicking on weblinks while viewing “normal” pornography online. He said that at one stage he printed off some of the material but then destroyed it.
Most of the 371 images and videos found on his PC dated back to March 2004. They were retrieved by specialist forensic software licensed to gardai.
The files were found in three places: the computer’s recycle bin, a temporary internet folder which automatically generates copies of images viewed online, and recovered memory after they had being permanently deleted.
In the absence of the jury, defence counsel Sean Gillane SC, successfully applied for the judge to direct the jury to find his client not guilty.
He said that there was no evidence that Mr Cole was aware that the files were still on his PC or that he could access them.
He said the vast majority of the 371 files dated back to 2004. Two out of five video files were dated 2007.
Judge Patrick McCartan ruled that Mr Cole could not be found guilty because there was no evidence that, at the time of the offence he had access, control or knowledge of the material.
Mr Cole of Sutton Park, Sutton, Dublin had pleaded not guilty at Dublin Circuit Criminal Court to knowingly having possession of images and movies of child porn at his home on November 8, 2007.
In directing the jury Judge McCartan said that the pornographic material was “buried” on the hard drive of the PC where the accused would not have access to it without specialist software.
He said there was no doubt that on a much earlier date in 2004 the defendant had accessed the material and had it in his possession, but that at some stage he had deleted it.
He said the law allows us to throw away something that is illicit. He said: “The offence is not looking at illicit or disgusting material. It is possessing it.”
Through his defence counsel Mr Cole conceded to the court that the material was found on his PC on that date and that they did amount to child pornography images.
Detective Sergeant Gary Kelly told Fiona McGowan BL, prosecuting, that Mr Cole was interviewed at his home on the date that gardaí seized his personal computer.
The accused told gardaí that he had being looking at “normal” pornography and that links had taken him onto child pornography.
He said he printed off some of the material at one stage but then destroyed it.
He said he didn’t have “a breeze” about the use of “clusters” of PC memory space or of temporary files.
Detective Garda Janette Walsh from the Computer Crime Investigation Unit gave evidence that she used a forensic computer programme called EnCase to retrieve 366 images and five movies of child pornography in three locations on Mr Cole’s PC.
She said that seven of these were temporary internet files that can be created automatically as a footprint when images are viewed online.
Another 96 images were retrieved from the recycle folder. She said these would have to be deleted by someone to get into this folder.
Finally she said she retrieved 268 image files of child pornography that had being permanently deleted but were recovered from the computer’s memory space using the forensic software.
Ms McGowan argued that the files had being deleted by the accused as he was the only one with access to the PC.
Judge McCartan asked: “If I have an item of contraband and I throw it away in a ditch, do I possess it? If I delete it so that it is no longer accessible to me do I still have it?”
He said he thought that the Director of Public Prosecutions had made a wrong choice in that the charge against Mr Cole didn’t reflect the dates that the files were accessed.
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