A police officer has been found not guilty of sending explicit images of himself to a domestic abuse victim following a three-day trial.
Kyle MacKinnon was cleared of the allegations at Elgin Sheriff Court.
At the end of proceedings, the sheriff said Police Scotland’s own investigation work “fell short” in testing the claims that were at the heart of the Crown’s case.
Mackinnon, 38, had denied two charges of sending indecent images or communications to a woman without her consent.
A further charge of sexual assault – that he allegedly tried to kiss her in an interview room at Keith police station – was dropped by the prosecutor on the final day of the trial.
But despite being acquitted, Sheriff Harvie told MacKinnon: “I believe very little of what you said”.
Recently-separated father-of-two had extra-marital affair
The officer of 15 years was accused of adding his alleged victim on Snapchat after he was sent to assist colleagues at a domestic abuse incident on November 28 2018.
It was claimed he later asked to lead an inquiry into the man involved and went on to have multiple conversations with the woman over the social media app, until December 18 of the same year.
During the final day of the trial – which first started in February – MacKinnon took to the witness stand to give his own evidence.
The recently-separated father-of-two told the court he’d had an extra-marital affair and sent partially naked images of himself to another woman with whom he was in that relationship.
MacKinnon strenuously denied having any untoward contact with the complainer in the court case.
He said he only ever contacted her for official police business and insisted he had “no idea” how the images of himself allegedly got onto her phone.
The officer agreed there was “no argument” that he featured in the indecent photos, however, he said they had been sent to someone else.
MacKinnon, who is currently suspended, told fiscal depute Sharon Ralph: “I don’t know. I can’t surmise. I could guess but I don’t know. I’m sorry”.
He added: “I don’t think I had Snapchat at the time. I’m 100% positive that’s right”.
He later told the court: “All I know is that I have never communicated with her through text messages. I did not do this.
“The only thing I can say is that, once you send an image, you lose control of it. After it goes from A to B, A has no power over it.”
‘For a domestic abuse victim she is not bad looking and I’d probably have a go at her’
On the first day of the trial, MacKinnon’s then-probationer colleague PC Lewis Appleton told the court that the accused said to him: “For a domestic abuse victim she is not bad looking and I’d probably have a go at her.”
In his evidence, MacKinnon insisted he didn’t find the 31-year-old woman, who cannot be named for legal reasons, attractive and had never contacted her – other than to discuss her abuser’s case either “face-to-face or over landline phone from Keith police office”.
The accused also denied making unnecessary and rogue visits to the woman’s house under the pretence of taking statements.
MacKinnon was man featured in naked images
On the second day of trial, the court heard how officers from Police Scotland’s anti-corruption unit were sent to execute a search warrant of MacKinnon’s home in May 2018.
It was just weeks after his alleged victim showed officers naked images of him on her phone.
Detective Sergeant Gavin Lindsay told the court he was able to identify the man in them as MacKinnon but the woman refused to hand over her phone.
He organised a further visit to her home days later when a memory card was used to transfer screenshots of the images.
During a search of MacKinnon’s home, photographs of the inside of his house were taken by officers and MacKinnon “co-operated fully” with unlocking his mobile so that it could be forensically examined.
Claims a third party was involved
Discussing those images in depth on the second day of the trial, defence advocate Mark Stewart KC suggested to DS Lindsay: “The opportunity to investigate the source of transfer of the photographs you were being shown was lost, or certainly not pursued, by the failure to take her phone?
“The data and the background about the transfer was lost?”
The police sergeant replied: “Yes”.
Mr Stewart KC also suggested forensic examiners had been able to go through “every nook and cranny” of MacKinnon’s phone, whereas the evidence from the complainer’s phone was “delivered to you, prepared by her”.
He put it to another witness, Police Scotland’s cyber crime forensics team leader Ewan Stewart, the images of MacKinnon that the complainer provided to police could have been sent to her from a third party rather than from MacKinnon himself.
‘No evidence linked sharing of images between two handsets’
Forensic expert John Borwick, who examined MacKinnon’s phone on behalf of the defence, took to the stand on the final afternoon of the trial.
He said further inspection of the complainer’s phone could “easily have been done” by police.
Mr Borwick explained he believed the images had been sent by WhatsApp by MacKinnon to another woman – something the accused officer agreed he had done – but had then changed hands before arriving at the complainer’s phone via the entirely different platform of Snapchat.
“These images appear to be from Snapchat but they don’t appear to have originated from her account, ” he said.
“We don’t know that because her phone has not been examined.”
He repeatedly told the court there was no evidence that linked the sharing of the images between the two handsets.
‘I believe very little of what you said’
Sheriff David Harvie told MacKinnon: “Some of the evidence is concerning. As part of the Crown case, your colleague said you commented that ‘for a domestic abuse victim she is not bad looking and I’d probably have a go at her.’
“The evidence of the complainer is that’s exactly what you were trying to do. That alone causes concern in terms of broader issues in relation to a culture etcetera.
“However, whilst I did find her a credible witness, she does stand alone to some extent as another regrettable part of this is the lost opportunities.
“It’s very clear that further inquiries might have been conducted to help support her evidence. There was plenty of time.”
The sheriff added that the test he had to apply was probability “beyond reasonable doubt” rather than a “balance of probability”.
He continued: “The evidence of the police technical expert, whilst I have no reason to doubt their skillset, did fall short in relationship to testing the proposition that lies at the heart of the Crown case.
“I am faced with contradictory evidence from a well-established expert.
“Whilst I believe very little of what you said, I have to acknowledge that, as part of this case, a medium of doubt has been established and you are entitled to that benefit.”
MacKinnon, of Dove Avenue in Elgin, was found not guilty of all the charges.
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