Douglas Miller Harris V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Hardie,Lady Dorrian,Lord Bonomy |
| Neutral Citation | [2012] HCJAC 5 |
| Court | High Court of Justiciary |
| Published date | 13 January 2012 |
| Docket Number | XC520/10 |
| Date | 13 January 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Hardie Lord Bonomy Lady Dorrian | [2012] HCJAC 5 Appeal Nos: XC520/10 OPINION OF THE COURT delivered by LORD BONOMY in NOTE OF APPEAL AGAINST CONVICTION by DOUGLAS MILLER HARRIS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead et Mason; Drummond Miller, Edinburgh
Respondent: Weir, QC, AD; Crown Agent
13 January 2012
The Background
[1] The appellant was convicted on 14 June 2010 at Aberdeen Sheriff Court by unanimous verdict of the jury, of two charges in the following terms:
"(001) between 1 July 2004 and 12 December 2006, both dates inclusive, at 25 Laburnum Walk, Aberdeen, you did take or permit to be taken or make 243 indecent photographs or pseudo-photographs of children;
CONTRARY to the Civic Government (Scotland) Act 1982 Section 52(1)(a) as amended;
(002) on 12 December 2006 at 25 Laburnum Walk, Aberdeen you did have in your possession 371 indecent photographs or pseudo-photographs of children;
CONTRARY to the Civic Government (Scotland) Act 1982 Section 52(A)(1);"
On 13 July 2010 the Sheriff made a probation order for a period of three years and confirmed the application to the appellant of the notification requirements of the Sex Offenders Act 2003.
[2] At the time of the offences the appellant was employed as a doctor at Aberdeen Royal Infirmary and Woodend Hospital. When officers of Grampian Police attended at his home to execute a search warrant on 12 December 2006 at 06.27 hours, the appellant and his girlfriend, Marie Carle, were present. The police removed a box containing floppy discs, a computer base unit, a digital camera, a "Wanadoo" broadband registration document, two laptops, a "Windows Washer" CD and a keyboard with various handwritten passwords and addresses on the underside.
[3] Miss Carle first met the appellant in May 2005. They had lived together at 25 Laburnum Walk since January 2006. The appellant had lived at that address since September 1999. The flat was then owned by a fellow medical student who later became his girlfriend and who sold the flat to the appellant when she moved from the area. The appellant incriminated Marie Carle "and other persons or person in the meantime to the Panel unknown" on both charges, and in respect of the first charge stated a detailed defence of alibi, essentially to the effect that he was not at home when any images were made and stating specifically where he was at various dates and times when images were downloaded, generally at work or travelling to or from work.
The Evidence
[4] The various items seized from the flat were subjected to examination by experts at the Forensic Computing Unit of Grampian Police. Their initial report formed Crown production 19. That and two subsequent reports, Crown productions 22 and 23, were spoken to in evidence. Evidence relating to some of the findings from the work done was the subject of joint minutes. The two Crown experts who carried out the examination and prepared the reports gave evidence. A defence expert also gave evidence. There was no significant disagreement among the experts. A number of files containing indecent images of children had been downloaded onto the hard drive of the computer base unit. The vast majority of the files had been "deleted" but had not been physically removed from the hard disk of the computer. A software programme known as "Windows Washer" had been installed. A feature of the Windows Washer software was that, when it deleted a file, it changed the file name to a scrambled 32 character name with three exclamation marks; the file then became invisible to the normal user but could still be recovered by forensic tools. That was the situation here in relation to the majority of the images. A total of 348 images were in "deleted" files. A further 2 images were found in different parts of the hard disk as a consequence of the use of certain computer programmes, and a further 15 were in miniature thumb-nail form. On the floppy disks recovered were found six indecent images of children, two of which had been accessed on 13 and 28 August 2004, and another of which was on a disk on which there was also a job application form which had been partially completed by the appellant. Since there was not satisfactory evidence of the dates on which 128 of the images appeared to have been created, charge 1 was restricted to 243 images.
[5] Examination of the computer had also disclosed chat logs containing apparent references to indecent images of children. The sites accessed included Picasa, MSN Messenger, Google and Yahoo sites. Someone operating the computer under the user name "doug 486933" had received indecent photographs. The number 486933 was the number of the telephone landline at the flat. Access had also been gained in that user name to sites where indecent photographs might be shared and created. The e-mail address dmh2000@hotmail.co.uk was shown to have been used to access sites containing indecent material. Comments from that e-mail address were posted by a user named "Dave"; these indicated an interest in indecent images of children. "Evie" was among the names referred to in files and used in communications relating to indecent images. Access to certain of the sites was not password protected and could have been gained by anyone using the computer. The results of checking the dates and times of the creation of images against the dates and times in the alibi were set out in a table attached to Crown production 22.
[6] Pauline Summers, a neighbour of the appellant in the same block of flats, had worked as a cleaner for his previous girlfriend and then for him. She had a spare key. She cleaned the flat once or twice a week. She gave some evidence of the appellant's shift patterns, a day-shift being between 07.45 or 08.00 and 17.00 or 18.00, and a night-shift meaning that he left home at approximately 20.00 to 20.30 and returned at 07.00 to 08.00, but the times would vary. Aberdeen Royal Infirmary was about eight minutes on foot from the flat and Woodend approximately ten minutes by car. The appellant generally took his car wherever he was working, but did not return home for lunch. She accepted that her children aged 16 and 13 could have gone into the room where the computer was, but was adamant that they had never used it and that she had never allowed anyone else access to the flat.
[7] Sharon McCulloch, the appellant's previous girlfriend, denied any knowledge of indecent images on either of the two desktop computers they had had or on any floppy disks.
[8] Marie Carle, who continues to live with the appellant, was not given immunity from prosecution but was warned that she might decline to answer questions where the answer might tend to incriminate her. She apparently answered all questions. Prior to 2006 she had worked shifts as a care assistant. These normally lasted five hours, either from 07.30 in the morning or for a five hour period in the afternoon. During 2006 she had worked as a document controller and administrative assistant, and tended to work normal office hours, 08.30 to 17.00 or 17.30. She used computers in her employment and had used the desktop and laptop computers in the flat. She denied ever using any computer to access indecent images of children. She had never seen anything on a computer which could be described as indecent images of children and the appellant had never discussed using the computer for these purposes. The floppy disks had been in the flat before she moved in. The appellant had explained to her the purpose of "Windows Washer" software and how it apparently worked. She denied any knowledge of the user ID "doug486933". She regarded the computers as the appellant's. On occasion she had used the computer at night or early morning when she was unable to sleep. She would play solitaire and check her e-mails. She had her own e-mail address and a user name and password to use hotmail or MSN Messenger. She had never used the e-mail address dmh2000@hotmail.co.uk. She identified the appellant's as the handwriting that had written out a list of passwords appended to the underside of the keyboard. She was familiar with "Picasa" and had used it for editing photographs and sharing them. She was not aware of "Google Hello", and never used "Yahoo" or "Google Groups".
[9] In relation to the appellant's hours of work, Miss Carle said that he was usually away from the flat before she left and would not return until after 18.00 hours. For a dayshift he would leave the flat about 07.30 and return after 18.00. An on-call weekend would be from Friday morning to Monday night after 18.00 hours. When on call, the appellant would stay at the hospital where he was working. If he worked nightshift, he would work the whole preceding day, the night period and then the whole of the next day. Usually he was off at the weekend. To the best of her knowledge he never finished early nor started late.
[10] She recalled that 9 December 2006 was the Christmas night out for the appellant and his work colleagues. She had given him a lift to Elphinstone Hall, picking up a colleague, Dr McNair, en route. At the end of the evening the appellant had telephoned her to be collected and taken home between 01.00 and 02.00. The call had been recorded as having been made at 01.16.33 on 9 December from his mobile to the flat. The expert report recorded an indecent image having been downloaded at 23.50 on 8 December and another at 00.13. She stated that she was alone in the flat at those times. Later the appellant had risen at approximately 08.30 and gone to the gym. He was away from the flat until after 11.00. While he was out, she had not been on the computer. She had had a migraine. She denied downloading images between 09.45 and 11.14, the time at which a number of images had apparently been downloaded. She specifically remembered the Christmas party incident because she had...
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