A Summerside man who was found guilty of taking nude photos of an underage girl has lost an appeal of his conviction.
In a recent unanimous decision, P.E.I. Court of Appeal Justice John Mitchell dismissed Waylon James Molyneaux’s appeal of his 2018 convictions for possessing and making child pornography.
Mitchell wrote that provincial court Judge John Douglas didn’t make a reversible error in convicting Molyneaux.
That conviction was based on a witness’s testimony about seeing several nude photos of an underage girl on Molyneaux’s cellphone.
Molyneaux appealed the conviction on three grounds, including that Douglas erred in his assessment of the evidence.
During the trial, the defence raised issues with how the police recovered photos of the girl from Molyneaux’s phone after which the Crown didn’t seek to have them admitted as evidence.
That left the witness’s testimony about what she saw on the phone and Douglas convicted Molyneaux based on the woman’s evidence.
Molyneaux’s appeal argued there was a breach of his rights when the police seized his phone, and asking the witness to disclose its contents was considered a search.
His lawyer, Kent Brown, argued the police would have needed to obtain judicial authorization before they interviewed the witness because whatever information she provided could be used to access the phone.
'No merit'
Mitchell disagreed.
“The very thought that police would require judicial authorization before interviewing witnesses because that witness might provide information which could in turn lead to the police obtaining personal information is counter intuitive if not absurd,” Mitchell wrote.
Mitchell also wrote that if there was a breach of Molyneaux’s rights it would have happened after the witness gave a statement to police.
Molyneaux’s appeal also argued there was an issue of trial fairness because the Crown showed the photos to the witness and Douglas but didn’t enter them into evidence.
“This ground has no merit,” Mitchell wrote.
It’s not uncommon for trial judges to hear evidence that they later find inadmissible, Mitchell wrote, adding that they are capable of making decisions based solely on admissible evidence.
“It is the nature of their work.”
Mitchell said the fact Douglas saw photos not tendered into evidence doesn’t have an impact on trial fairness.
