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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Fraser v. Her Majesty's Advocate [2008] ScotHC HCJAC_26 (06 May 2008)
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Cite as: [2008] HCJAC 26, [2008] ScotHC HCJAC_26

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IN APPEAL BY

 

NAT GORDON FRASER

 

against

 

HER MAJESTY'S ADVOCATE

 

 

SUMMARY

 

6 May 2008

 

Today at the Criminal Appeal Court in Edinburgh the appeal by Nat Gordon Fraser against his conviction for the murder of his wife Arlene was refused. The Lord Justice Clerk, Lord Gill, sitting with Lord Osborne and Lord Johnston delivered the following summaries of their decision in Court.

 

 

Lord Justice Clerk - Lord Gill

 

"On the morning of 28 April 1998 the appellant's wife Arlene disappeared from her home and was never seen again. On 29 January 2003 the appellant was convicted of having murdered her and was sentenced to life imprisonment with a punishment part of 25 years.

 

At the time of the disappearance the appellant and the deceased were separated. The deceased was intending to divorce the appellant. She was living with the children at the former matrimonial home at 2 Smith Street, New Elgin. The deceased wore three rings and was in the habit of taking them off at night.

 

Immediately after the disappearance, there were a number of police searches of the house. Among the officers who took part were PC Neil Lynch and WPC Julie Clark. In their notebooks and in the statements that they gave soon after the searches; and in other records of the searches, there is no mention of the deceased's rings having been seen by police officers or scenes of crime officers. A video survey of the house made in the afternoon of 29 April shows no evidence of any of the deceased's rings anywhere in the house. After 30 April members of the deceased's family were living at the house. They searched the house extensively but none of them saw the deceased's rings.

 

There was evidence that around lunchtime on 7 May 1998 the appellant called at the house and went into the bathroom; and that just after he left, the deceased's three rings were found on a wooden dowel beneath a soap dish in the bathroom.

 

The advocate depute presented the Crown case to the jury on the basis that the appellant removed the rings from the body of the deceased and took them to the house on 7 May. That presentation implied that the deceased had been wearing the rings when she was killed. The advocate depute described the finding of the rings as "the cornerstone" of the Crown case. The trial judge directed the jury that if they did not accept that the appellant placed the rings in the bathroom on 7 May, they could not convict.

 

After the appeal was lodged, it came to light that when he was precognosced by the Crown in preparation for the trial, PC Lynch had said that on the night of 28-29 April he had seen jewellery, including rings, at the house and that he thought that, before the official search began, he had seen bracelets and rings in the bathroom at the side of the sink. It became apparent that this evidence had not been known to the advocate depute and had not been disclosed to the defence.

 

In the course of an internal inquiry, PC Lynch repeated his recollection of having seen jewellery in the bathroom on a shelf of some sort, including two or three rings. The question of the rings was raised with WPC Clark. She said that before the formal police searches began, she saw jewellery on a wooden pole or dowel underneath a glass ledge above the sink; that she saw at least two finger rings and a chain, and that one of the rings could have been a lady's wedding ring or eternity ring. She said that she had mentioned this when she was precognosced before the trial.

 

In 2006 a formal inquiry was conducted by the Area Procurator Fiscal for Glasgow and the Deputy Chief Constable of Strathclyde. That inquiry obtained a report, the Woods-Bowie Report, which concluded from an analysis of the video that while rings could not be seen, the possibility that there were rings on the dowel could not be ruled out.

 

The two grounds of appeal are (1) that the evidence of PC Lynch and WPC Clark, and of the conclusions of the Woods-Bowie Report, is new evidence and that, since it was not heard by the jury, the conviction was in the circumstances a miscarriage of justice; and (2) that the Crown's failure to disclose the evidence of PC Lynch to the defence before the trial had the same result.

 

The basis of the appeal was that neither PC Lynch nor WPC Clark was precognosced by the defence before the trial; but towards the end of the hearing, the appellant's present solicitors discovered, among the papers of his previous solicitors, precognitions of both witnesses, neither of which mentioned the rings.

 

On the first ground of appeal I conclude, for the reasons set out in my Opinion, that the evidence of the Woods-Bowie Report is inconclusive and is of no material significance. I also conclude that the proposed evidence of PC Lynch and WPC Clark is not new evidence; but that, even if it is, the verdict cannot be regarded as a miscarriage of justice.

 

The circumstantial evidence alone constituted a compelling case against the appellant. There was evidence that he had motives for the crime. There was evidence of his previous malice and ill-will towards the deceased. There was evidence of preparatory acts by him in setting up an alibi and in his involvement with Hector Dick on the previous night in the urgent purchase of a car with a boot when the witness Kevin Ritchie, who obtained the car, was given £50 by Dick to keep quiet. There was incriminating evidence in the events and circumstances, and in the demeanour and the statements of the appellant, immediately after the disappearance.

 

In my opinion, the circumstantial evidence alone was not only sufficient in law to entitle the jury to convict, but was powerful in its effect.

 

But when Dick gave evidence for the Crown, the prosecution case was transformed. He gave evidence of premeditation; of the return of the car after the disappearance with inside it a coat similar to the deceased's and a bundle of clothing that he thought was the clothing of one of the children; and of several detailed confessions made to him by the appellant in which he described his part in the murder and in the destruction of the body.

 

I therefore conclude that it was not essential to a conviction that the jury should accept that the appellant left the rings in the bathroom on 7 May; but that, if they concluded that he did, his furtiveness in doing so was a further incriminating circumstance.

 

Therefore the trial judge's direction that the jury could not convict unless they held that the appellant placed the rings in the bathroom on 7 May was a misdirection; but it was limited in its scope. It related only to the events of 7 May. The question did not depend on whether the rings were in the house in the early hours of 29 April.

 

However, in consequence of the misdirection we can conclude with certainty that the jury found that the appellant put the rings in the house on 7 May. That being so, the question is whether in the light of the proposed new evidence the verdict was a miscarriage of justice. In my view, it was not. I shall assume that on the evening of 28 April and the early hours of 29 April the rings were in the house. That is quite possible. The deceased took her rings off every night. It appears that she was disturbed while doing housework on the morning of her disappearance. She may well have been killed before she had time to put her rings on again. The appellant had the opportunity to remove the rings from the house on 29 April after the assumed sightings by PC Lynch and WPC Clark and before the making of the video. The house at that time was not a crime scene. The house was unoccupied. The appellant had a key. Dick said that the appellant made the significant admission that he had been to the house on the night of 28/29 April and had tidied it up to clear away any evidence. The proposed evidence is therefore not inconsistent with the key finding that the appellant put the rings back in the house on 7 May.

 

In any event, even at its highest the evidence of PC Lynch and WPC Clark has no material significance in comparison with the evidence of the family members and of the whole circumstantial background to the case.

 

Lastly, the trial judge's misdirection, in my opinion, raised the Crown's hurdle higher than it should have been. In that sense the misdirection was favourable to the defence.

 

I conclude therefore that the first ground of appeal is not made out.

 

I shall deal with the second ground of appeal on the assumption that there was non-disclosure of the evidence of PC Lynch. On that assumption, section 106 of the Criminal Procedure (Scotland) Act 1995 requires us to consider whether the nondisclosure resulted in a miscarriage of justice. That involves an assessment of the importance and significance of the undisclosed evidence to the crucial issues at the trial. In effect therefore the non-disclosure ground at this stage becomes a new evidence appeal. For the reasons that I have given in relation to ground 1, I consider that this second ground of appeal falls to be rejected.

 

I propose to your Lordships that we should refuse the appeal against conviction and continue the appeal for consideration of the sentence".

 

 

Lord Osborne

"I begin by agreeing with the Lord Justice Clerk that the appeal against conviction should be determined in the manner proposed by him, for the reasons that he gives. However, in view of the importance of certain of the issues raised in the appeal, I express my own opinion on those matters.

 

I deal first with the approach to be taken to evidence not heard at the trial where it is contended that a miscarriage of justice has occurred on account of such evidence, in terms of section 106(1) of the Criminal Procedure (Scotland) Act 1995. I affirm the correctness of the treatment of that matter in Cameron v H.M. Advocate 1987 S.C.C.R. 608, and elaborated in Kidd v H.M. Advocate 2000 S.C.C.R. 513 and Al Megrahi v H.M. Advocate 2002 S.C.C.R. 509. The approach set out there entails that the assessment of the significance of the additional evidence must be conducted in the context of the whole evidence laid before the trial court. In that connection, it is not necessary or appropriate to consider whether the additional evidence founded upon would in fact have been led on behalf of the appellant at the trial.

 

I go on to consider the issue of the assumptions that have to be made in the evaluation of the significance of additional evidence. I conclude that the assessment of the significance of the additional evidence must be performed in the light of the whole of the evidence before the court at the trial, but not the tactics which happen to have been adopted at the original trial in the different evidential situation.

 

I also consider the relevance, if any, of certain dicta in Holland v H.M. Advocate 2005 S.C.C.R. 417 to this appeal. In that connection, I examine the nature of the jurisdiction of the Privy Council in devolution issues under paragraph 13 of Schedule 6 and section 98 of the Scotland Act 1998, and that of this court under section 106 of the 1995 Act. That involves consideration of the relationship between an unfair trial, in terms of Article 6(1) of the European Convention on Human Rights and a miscarriage of justice under section 106(3) of the 1995 Act. I conclude that it is potentially confusing and unhelpful, in criminal appeals under section 106(3)(a) of the 1995 Act to rely on dicta pronounced in appeals under paragraph 13 of Schedule 6 to the 1998 Act. In the same connection, I comment on Gair v H.M. Advocate 2006 S.C.C.R. 419.

 

Further, I examine the status of precognitions in relation to the issue of disclosure. I affirm the absolute privilege attaching to Crown precognitions under reference to Downie v H.M. Advocate 1952 S.C.C.R. 446, and H.M. Advocate v MacSween 2007 S.C.C.R. 310.

 

I then turn to deal with the question of "reasonable explanation" in relation to evidence not heard at the trial under section 106(3A) of the 1995 Act, particularly the evidence of P.C. Lynch and W.P.C. Clark. In the light of all the circumstances in this case, I conclude that no reasonable explanation exists as to why the evidence they can now give was not heard at the original proceedings.

 

Upon the assumption that a reasonable explanation does exist, I consider the significance of the evidence of these witnesses. I conclude that the force of the Crown case would actually have been enhanced by this additional evidence, had it been available. Thus the fact that the appellant's conviction was reached in the absence of that evidence, in my opinion, could not be seen as a miscarriage of justice".

 

 

Lord Johnston

 

"I respectfully agree with the opinion of your Lordship in the Chair.

 

I specifically endorse the views that this is not a fresh evidence case properly understood, but rather revealing an overwhelming case of guilt on a circumstantial basis for the reasons already mentioned by your Lordship.

 

This issue of the jewellery was unfortunate to say the least and I consider that the trial judge misdirected the jury in that respect. However, I do not consider that any miscarriage of justice arises from that misdirection since it was on any view favourable of the defence narrowing the Crown case beyond what was necessary.

 

In these circumstances the issue of the jewellery is nothing to the point when it comes to the assessment of the guilt of the appellant upon the whole evidence which is as I have indicated I consider to be overwhelming.

 

For these substantial reasons and in agreement with your Lordship I therefore concur that the appeal should be refused".

 

 

NOTE

This summary is provided to assist in understanding the Court's decision. It does not form part of the reasons for that decision. The full opinion of the Court is the only authoritative document.


 


APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice Clerk

Lord Osborne

Lord Johnston

 

 

 

 

 

 

 

 

 

 

[2008] HCJAC26

Appeal No: XC229/03

 

OPINION OF THE LORD JUSTICE CLERK

 

in the Appeal by

 

NAT GORDON FRASER

Appellant;

 

against

 

HER MAJESTY'S ADVOCATE

Respondent:

_______

 

For the appellant: Gray QC; Miss Livingstone, advocate: John McAuley & Co, Glasgow

For the Crown: Beckett QC, AD; Balfour: Crown Agent

 

6 May 2008

I The conviction and the appeal

[1] On 28 April 1998 the appellant's wife Arlene (the deceased) disappeared from her home and was never seen again. In January 2003 the appellant, Hector William Dick and Glenn Burnell Lucas were tried at Edinburgh High Court before Lord Mackay of Drumadoon on charges of conspiracy to murder the deceased, of murdering her and of attempting to defeat the ends of justice. The Crown withdrew the libel against Dick and Lucas during the Crown case. On 29 January 2003 the appellant was convicted of murder. He was sentenced to life imprisonment, with a punishment part of twenty five years. He has appealed against conviction and against the length of the punishment part.

[2] After the appeal was lodged, certain information came to the notice of Crown Office relating to the presence of the deceased's rings in the house immediately after her disappearance. That led to an inquiry, the Dyer-Gray Inquiry, to which I shall refer later. In the following account of events I have drawn primarily on the evidence led at the trial; but in relation to the proposed new evidence I have referred to some of the information set out in the Dyer-Gray Report and in the supporting documents.

 

II Events preceding the disappearance of the deceased

The separation

[3] In early 1998 the appellant and the deceased were living with their children Jamie, then aged 10, and Natalie, then aged 5, at 2 Smith Street, New Elgin, Moray. The marriage was unhappy. In February and March 1998, the deceased consulted a solicitor about a divorce. On or about 21 March the appellant attacked the deceased and attempted to throttle her. At the trial the jury were aware that there had been an incident on this occasion involving the appellant and the deceased, but they were not aware of the nature of the appellant's violence to the deceased or of the fact that he had been convicted as a result of it. After that incident the appellant left the deceased and went to stay with his business partner, Ian "Pedro" Taylor, and his wife, Jane. On 24 March the deceased had a meeting with her solicitor after which her solicitor drafted a writ for divorce.

 

The appellant's attitude to money

[4] The appellant and Taylor ran a fruit and vegetable business. The appellant used to hide cash behind a ventilator grill in the main bedroom of the house and in his gun cupboard. Several members of the deceased's family spoke about the appellant's meanness towards her. Her mother, Mrs Isabelle Thompson, said that the appellant restricted her to a small weekly allowance and paid all the bills himself. She said that the deceased thought that the appellant had money hidden in the house, but did not know where it was. The deceased's sister, Carol Gillies, said that the appellant pretended to the deceased that he was paying a mortgage on the house. According to Jane Taylor, the appellant knew that the marriage was over and that there would be financial consequences for him.

 

The Granada fire

[5] After the separation, the deceased's mother stayed with her for about 2 weeks. During that time the deceased used the appellant's Ford Granada A19 NAT. There was evidence that the appellant repeatedly asked for the return of it. According to Mrs Thompson, he was desperate to get it back.

[6] On 4 April 1998 the deceased was at a wedding reception. She stayed overnight with her close friend, Michelle Scott. The appellant was in Elgin that night with Taylor and the co-accused Dick, who was his close friend. They met the deceased and Michelle Scott. The appellant later left Taylor and Dick and went off on his own. Later he met up with the deceased and Michelle Taylor in a bar and had a brief word with the deceased.

[7] Mrs Thompson was in the house at Smith Street all night. The Granada was in the driveway. It was unlocked. During the evening, Mrs Thompson heard a car door being closed. She looked out of the window but did not see anyone. On the following morning she discovered that the car had been set on fire.

 

The appellant's contacts with Hazel Walker

[8] On 19 April 1998 the appellant met Hazel Walker at Fochabers and exchanged telephone numbers with her. He telephoned her at her home every morning during the following week, except at the weekend when her husband was at home. On Monday 27 April he telephoned her at about 8.50 am. He said that he would telephone her next day at the same time. He had not previously arranged to call her at any specific time.

 

The deceased's plans for a holiday

[9] On 21 April the deceased and her father, Hector McInnes, arranged that he and his second wife, Catherine, would take her and the children on holiday. Her father paid the invoice for the holiday on the day on which she disappeared.

 

The deceased's conversation with Marion Taylor

[10] The deceased's close friend Marion Taylor said that on the weekend before 28 April 1998 the deceased told her that the appellant had said to her that "if she was not going to live with him, she wouldn't be living with anyone." This evidence was not challenged in cross examination, although in his own evidence the appellant denied it.

 

The buying of the Ford Fiesta

[11] Dick lived at Wester Hillside Farm, Mosstowie, near Elgin. Kevin Ritchie was an occasional dealer in cars. Around the first week of April 1998 he visited Dick at the farm. Dick asked him how a car without number plates could be traced. Ritchie told him that this could be done by means of engine and chassis numbers.

[12] On Monday 27 April at about 5.45 pm Dick telephoned Ritchie and said that he wished to speak to him about a car. Ritchie went to Dick's house. Dick told him that he was looking for a cheap car that had a boot. He wanted the car that night. While Ritchie was at Dick's house the appellant arrived. He brought fish suppers for himself and Dick. He was present when Dick and Ritchie were discussing the buying of the car. At about 8.19 pm, Ritchie telephoned Dick. He told him that he had located a Ford Fiesta and asked him if he wished to buy it. Dick told him to buy the first car that he could get. Ritchie bought the Ford Fiesta, B231 PDY, for £400 and at about 9 pm drove it to Dick's farm. On Dick's instructions he parked it in a shed. He left the keys in it. According to Ritchie, Dick paid him £400 and gave him £50 for himself, saying "that's for keeping quiet."

 

III The disappearance of the deceased and the aftermath

The disappearance
[13]
The deceased was a part-time student at the local college. Tuesday was the only weekday on which she had no classes. On Tuesday mornings, she was alone at home after the children left for school. The appellant knew this. On Tuesday 28 April 1998 at about 9.41 am the deceased telephoned New Elgin Primary School to enquire when Jamie would return from a school outing. She told a clerical assistant who answered the call that she would be at home for an hour. The assistant returned the call about ten to fifteen minutes later, but there was no answer.

[14] At about 11.00 am Michelle Scott called at the house. She said that although the deceased normally kept the front door locked, it was lying open. There was no sign of the deceased. She searched the house. The vacuum cleaner was plugged in. It appeared that the deceased had been disturbed while using it. The telephone directory lay open.

[15] The deceased failed to keep a lunch appointment and an appointment with her solicitor fixed for 2.30 pm. Her father telephoned her, but got no answer. By the early evening, when the children had returned from school, the police were called.

[16] PC Peter Hall went to the house. Later he returned to Elgin police office. At about 10.30 pm the appellant called there and spoke to him. He told him that there were two stashes of money in the house, about £500 behind a vent in the main bedroom and possibly £400 in the gun cabinet. PC Hall returned to the house with WPC Julie Clark. They searched the interior of the house. They found that the ventilator grille in the main bedroom was askew. One of the two screws that secured it was missing. There was no money behind the grill or in the gun cabinet. There was no sign of a disturbance. PC Hall said in cross examination that the appellant seemed surprised that the deceased had left without making provision for the children and that at the house on the evening of 28 April he seemed genuinely concerned about the deceased's disappearance.

 

The appellant's movements on 28 April 1998

[17] On 28 April between 7.40 am and 5.15 pm the appellant made deliveries in Elgin. At 9.05 am he telephoned Hazel Walker from a telephone box outside the Rowan Tree Restaurant. He told her where he was. At 9.14 am the call ran out. He at once redialled and continued it. The call lasted in all for about 34 minutes. Hazel Walker confirmed that the call had been pre-arranged. At 10 am the appellant telephoned his office from the Abbey Court Restaurant.

[18] The appellant did not telephone Hazel Walker on the next day. By the time of the trial she had not heard from him again.

[19] That evening, despite the concern of the deceased's friends and neighbours, the appellant did not telephone her sister, her mother or her father. At about 10.30pm the appellant called at Elgin police office as I have described. Later, he went to the Taylors' house.

 

The police visit to the Taylors' house on 29 April

[20] On 29 April at about 3am, DS William Robertson and PC Neil Lynch called at the Taylors' house and interviewed the appellant.

 

The police searches on 28 and 29 April 1998

[21] At first, the police enquiry was classified as a missing person enquiry. During the next 24 hours several officers visited the house. According to his police statement dated 6 May 1998, PC Lynch made three visits. The first was with DS Robertson and DS Mark Cooper at about 00.30 am on 29 April. He then took part in a search. The second visit was with WPC Julie Clark in the early hours after he had seen the appellant at the Taylor's house. The third was at about 6.30 pm that day when a team searched the house and the garden. WPC Clark wrote up the log of this search.

[22] None of the reports of these searches recorded the finding of rings in the bathroom. PC Lynch and WPC Clark did not record in their notebooks or mention in their police statements that they saw rings or other jewellery anywhere in the house.

[23] During the morning of 29 April a forensic scientist examined the house and found no evidence of a disturbance. In the afternoon, a scenes of crime officer made a video survey. In the bathroom, above the sink on the right hand side, there was a wooden ledge holding a soap dish. Underneath it were two wooden dowels. The video and two still photographs taken from it showed no rings on the dowels or elsewhere in the house.

[24] In the days that followed the disappearance, 29 police officers and forensic scientists were in the house. None reported having seen rings.

 

The appellant's conversation with Alexander Munro
[25]
On 29 April, the appellant spoke to a neighbour, Alexander Munro. Mr Munro asked him if he had any idea what had happened. The appellant told him that the deceased had taken money that he had hidden. Mr Munro asked him if he had told that to the police. The appellant said that he had.

 

The deceased's family in residence

[26] Some of the deceased's relatives arrived in Elgin on 29 April while the police searches were going on. On 30 April her mother and her husband, William Thompson, and her father and his wife, Catherine McInnes, moved into the house.

[27] By then the house had been vacant for about 48 hours during which the appellant, who still had keys to the house, had had the opportunity of access to it while no one was there.

[28] After she arrived in Elgin, Carol Gillies stayed nearby. She spent each day in the house from 7 am to 11 pm. She and the other family members made a thorough search of the house, including the attic.

[29] The deceased suffered from Crohn's disease for which she had to take regular medication. She had left her medicine, spectacles, contact lenses, credit cards and watches. It appeared that she had not taken away any of her clothes. Carol Gillies noticed that her everyday shoes and boots were still in the house. There was no evidence that she had any source of money other than the appellant.

[30] The deceased wore a wedding ring, an engagement ring and an eternity ring. She used to take them off every night. The family members who gave evidence each said that in their search of the house they did not find any of her rings, either on the dowels in the bathroom or elsewhere. Carol Gillies said that she was in the bathroom regularly. She bathed Natalie there. She saw nothing on the dowels. Catherine McInnes was in the house every day from 30 April until 7 May. During that time she was in the bathroom on many occasions. She had cleaned the bathroom, including the sink, and washed her hands at the sink. She said that on all of these occasions the rings were definitely not there.

[31] After the disappearance, the appellant called at the house regularly. According to Isabelle Thompson, he was "not really all that bothered." On 30 April, on one of his visits, he told Carol Gillies that the money from his stash was missing.

 

Police enquiries

[32] Between 30 April 1998 and 6 May 1998 there were several police briefings in none of which was there any mention of the deceased's rings. Extensive enquiries failed to produce evidence that the deceased was alive after 28 April 1998.

 

Conclusions from the disappearance and the aftermath

[33] The history that I have narrated supports the conclusion, which was accepted by both Crown and defence at the trial and at the appeal hearing, that the deceased was murdered in the house soon after 9.41am on 28 April 1998 and that her body was at once removed from the house.

 

IV The appellant becomes the prime suspect

The finding of the rings on 7 May 1998

[34] On 7 May the appellant called at the house around lunch time. According to Hector McInnes, the appellant spoke to him in the kitchen and told him that the children would "eventually forget their mother and all this lot was going to cost him £5000." Later, Mr McInnes went to the bathroom. As he came out, the appellant was waiting to go in. After lunch, and after the appellant had left, Mr McInnes went to collect Natalie from school. While he was away, Catherine McInnes went into the bathroom and found the deceased's three rings on the right hand dowel above the sink. The police were then called.

 

The press conference of 8 May 1998

[35] On 8 May the police held a press conference. They released details of the Granada fire and said that it was started wilfully. They announced that they believed that the deceased had been the victim of a crime and that they had instituted a full search and forensic examination of the house.

 

The meeting at Elgin police office on 25 May 1998

[36] On 25 May senior officers of Grampian Police, including the Assistant Chief Constable, DC Supt Keith Wilkins, DCI Peter Simpson and DI Alan Smith, the acting procurator fiscal, James McKay, and the regional pathologist, Dr James Grieve, met at Elgin police office. They discussed the circumstances of the disappearance and the background to it, including the appellant's previous assault on the deceased and the Granada fire. They discussed the absence of any sign of a struggle. DI Smith said that a jacket, a holdall and the deceased's purse and keys were initially missing from the house, and that her jewellery had been found in the bathroom.

[37] The minutes of that meeting, and the manuscript notes of it by Mr Mackay and Dr Grieve, leave it uncertain whether the reference to the finding of the rings in the bathroom related to the searches conducted on 28-29 April or to the finding of the rings on 7 May. I think that, in their context, these documents suggest that the reference was to the finding of the rings on 7 May; but the evidence is inconclusive.

[38] At this meeting, it was decided that, in view of the lack of progress, the enquiry would be scaled down.

 

The Grampian police missing person report

[39] On 29 June 1998 a report was prepared summarising the enquiry to date. It too recorded that jewellery of the deceased was found in the bathroom.

 

The enquiry is re-opened

[40] On 26 October 1998 the enquiry was re-opened with DC Supt Jim Stephen in charge. By then the rings had been returned to the appellant. Until then, the police theory had been that they had been missed during the searches immediately after the disappearance. On a re-examination of the video, the enquiry team realised that the deceased's rings were not visible on the dowel in the bathroom. The team were then alerted to the possibility that the appellant had put the rings back in the house on 7 May.

[41] On 29 October there was a police briefing on the case. WPC Clark attended it and contributed to the discussion. In her evidence to the Dyer-Gray inquiry, she accepted that she attended the briefing, but could not recall that there was any discussion about jewellery. According to DS Robertson, the question arose whether any officer had seen the deceased's rings at the house. WPC Clark said nothing on the subject.

[42] PC Lynch had not attended the briefing. He gave a statement on 5 November 1998 and a further statement on 28 August 2001. He did not mention in either statement that he had seen jewellery in the house.

 

The "Frontline Scotland" interview
[43]
On 27 October 1998 the appellant was interviewed on the Frontline Scotland television programme. He was asked if he thought that from the period of the separation the breakdown of the marriage had been irretrievable. He replied

"I thought so, aye. The first week or so you are not sure, you have no idea. Then in the cold light of day you think well, let's just get a new start, get the house selt, just go our separate ways and get organised."

 

He said that while living at the Taylors' house, he had come to realise that the marriage was over. He said that he thought that the deceased was still alive.

 

The appellant's police statements in November 1998

[44] On 15 November 1998, the appellant gave a statement to the police in which he said that, as far as he could remember, he had spent the evening of 27 April 1998 at the Taylors' house and had not gone out. He was positive about that. He said that he religiously tended to stay in on Monday evenings.

[45] On 16 November 1998, the appellant gave a further statement. He now said that in the evening of 27 April he telephoned Dick from a call box and that Dick asked him to take a fish supper to him. When he arrived at Dick's farm, Dick was with another man whose name he could not remember.

[46] In about December 1998, the appellant attended voluntarily at Elgin police office. According to the record of the visit, he continually referred to his clinging to the hope that the deceased would return. He denied having placed the rings on the dowel.

 

The arrest of Dick and his police statements

[47] On Friday 1 October 1999 Dick was arrested and charged with an attempt to pervert the course of justice by lying to the police about the whereabouts of the Ford Fiesta. Thereafter he gave further statements to the police. In his statements up to October 1999 he denied that he had been involved in the buying and the disposal of the Fiesta, but after that date he admitted it.

 

The appellant's police statement of 4 October 1999

[48] On 4 October 1999 DI Ian Japp interviewed the appellant. He told the appellant that Dick had given a statement to the effect that the Fiesta had been bought for the appellant. The appellant denied this. He said that he knew nothing about the vehicle.

 

Dick's offer to the Crown

[49] On 6 October 1999, Dick's solicitors wrote to the Crown to suggest that he was in a position to give a further and more informative statement. The letter said inter alia

"Our understanding is that the statement in general would indicate not only who made a request for a car but also who collected the car, returned with the car and what happened to the car and also the content of certain comments made to our client by a certain person when confronted by our client following the police public announcement that the disappearance of Mrs Fraser was to be treated as a murder inquiry."

 

 

The conviction of the appellant in 2000

[50] On 9 February 2000 the appellant was convicted at Edinburgh High Court of having assaulted the deceased to her injury and to the danger of her life in the incident on 21 March 1998. He was sentenced to 18 months imprisonment.

 

The conviction of Dick in 2001
[51]
In January 2001 Dick was tried on indictment at Dingwall Sheriff Court on the charge of attempting to pervert the course of justice. In the course of the trial he pled guilty to an amended charge and was sentenced to 12 months imprisonment.

 

The appellant's police statement of June 2001

[52] At an interview in June 2001, the appellant told the police that he thought that the deceased was still alive.

 

V The murder prosecution

The arrest and indictment of the appellant

[53] On 19 July 2001 the appellant was put on petition on charges of conspiracy to murder, and the murder of the deceased. On 26 April 2002 he was indicted. Part of the conspiracy charge was that in pursuance of the conspiracy and with intent to defeat the ends of justice, he did

" ... (ii) on 28 April 1998 at said 2 Smith Street, remove a sum of money ...

 

(iii) on 7 May 1998 at said 2 Smith Street, place a wedding ring, engagement ring and eternity ring belonging to said Arlene Fraser in said house ... "

 

The Crown list of witnesses included PC Lynch and WPC Clark. The Crown productions included the video and the still photographs taken from it.

 

The Crown's preparations for the trial

The Crown team in Elgin

[54] Mr David Dickson, the procurator fiscal at Elgin, was responsible for preparing the case. He was assisted by a precognition officer, Mr Douglas Burns. Mr Dickson instructed Mr Burns to precognosce PC Lynch and WPC Clark.

 

The precognition of WPC Clark

[55] On 28 June 2002 Mr Burns precognosced WPC Clark at his office. She said that she first went to the house with PC Hall at about 11pm on 28 April and accompanied him when he searched the entire house. On 29 April 1998 she assisted PS Lowe, PC Hall and other officers in a thorough search of the house. She said that none of the items seized had any evidential value. WPC Clark did not say that she had seen jewellery in the house on the night of 28-29 April. She did not mention having been in the house with PC Lynch.

 

The precognition of PC Lynch

[56] On 3 July 2002, while the procurator fiscal was on leave, Mr Burns precognosced PC Lynch. PC Lynch said that he had been in the house three times on 28-29 April. He had visited it with DS Cooper and DS William Robertson. He had visited it again at an unspecified time, and had gone back with WPC Clark at about 3.30-4 am to see if the deceased had returned.

[57] PC Lynch mentioned for the first time that on the night of 28 April and the morning of 29 April he had seen jewellery, including rings, at the house. He said that, before the official search began, he thought that he saw bracelets and rings in the bathroom at the side of the sink. They looked like a wedding ring, engagement ring or eternity ring.

[58] Mr Burns realised that PC Lynch's reference to rings was significant. He later told the Dyer-Gray enquiry that he was 'taken aback' by it. He asked PC Lynch if he could identify the rings. PC Lynch said that he would need to see them.

[59] I shall call this PC Lynch's Elgin precognition, although no formal precognition was drawn up after the interview. It is in essence a draft consisting of a police statement of PC Lynch taken from the police HOLMES system, with manuscript additions by Mr Burns and a handwritten note setting out PC Lynch's answers to questions put to him at the interview.

[60] Mr Burns left the draft precognition on Mr Dickson's desk with a yellow post-it note attached to it. The note said:

"Neil will come in to look at the 3 rings labels 20, 21 and 22. David [sc the procurator fiscal] will show him the rings and fill in the end of this precognition."

 

Mr Burns wrote the note in the expectation that, on his return from leave, Mr Dickson would recall PC Lynch to see the deceased's rings and would prepare a formal precognition.

[61] In reply to a letter from Crown Office dated 24 April 2002, Mr Burns sent a letter dated 19 July 2002 to Miss Denise Bruce, who was to indict the case. In it he referred in detail to PC Lynch's Elgin precognition. The relevant parts of his letter are as follows.

"In addition, at precognition it has now been ascertained that Constable Lynch who attended with Detective Sergeant Robertson at around 2400 noted rings on the moulded soap dish which formed part of the sink in the bathroom. However, when Police Officers videoed the scene on 29 April those were missing. It has also been confirmed in precognition that when the house was searched in terms of the search record (Production No 3) that those officers do not recall seeing rings there but if rings had been there they would have been recovered being deemed to be property of Mrs Arlene Fraser. It therefore appears on this evidence that in that period that rings had been removed which subsequently were re-introduced to the house and discovered by Mrs Catherine McInnes on 7 May (para (g), p 2) ...

 

... Constable Neil Lynch on precognition made reference to seeing a set of rings within the home address on 29 April. This was in the early hours at around midnight. This was before the area was seized as a crime scene and searched on 29 April 1998. From the video there are no rings on a sink in the bathroom the area in which he believes he saw rings. I remain satisfied that these rings are more likely to be those recovered on 7 May by Catherine MacInnes. Of course, it is the Crown's position that these rings were reintroduced by Nat Fraser - he being the only person who is one of the three accused who had access to the house. He equally is the only person of the accused who had access to his wife in life and her rings and had access after the date of her disappearance. It does however, of course, raise the interesting question as to whether or not the second set of rings recovered were in fact the rings seen by the officer on 29 April. In short, I do not think it makes any difference to the Crown or Defence position by adding the second set of rings to the Indictment. It remains the evidence of the Crown that rings were found on 7 May in an area where they previously had not been in the previous week. It remains the evidence of the witnesses (MacInnes et al) that those rings could only have been placed there by Nat Fraser. Indeed, I think it is of significance that Constable Lynch has now indicated that he saw rings there. This would further bear out the concern that the Crown have always had that Fraser had access to the house after his wife's disappearance on 28 April. If he was the person who introduced the rings to the house in the period between 28 April and 7 May then I suggest this evidence is indicative of that. It however has to be borne in mind that in relation to his conversations in the prison that Fraser was concerned about the police finding a small item in the bathroom. A search in terms of production number 76 was conducted on 18 June, 2001 which resulted in the recovery of the second set of rings in the cistern. My view is that the second set of rings relates to an allegation of housebreaking some years previously. I have not sought to evidence that as I take the view that the second set of rings is irrelevant to this charge and would, at the very best, only confuse the issue. Constable Lynch has yet to identify those rings as they were not shown to him at precognition but will do so. He has indicated to me that he is unlikely to be able to recollect them" (para 10, pp 8-9).

 

Later in the letter, Mr Burns said that certain other matters would be dealt with by Mr Dickson on his return from leave. I shall call this the Burns-Bruce letter.

[62] Mr Burns thought that the information given by PC Lynch was sufficiently important to be brought to the attention of Mr William Gilchrist, the Deputy Crown Agent. He therefore referred to it in a separate letter to Mr Gilchrist of the same date. The relevant part of it is as follows.

"I would also be obliged if you could bring to the AD or Denise Bruce's attention the fact that I have precognosced a police constable Neil Lynch and expanded his precognition as far as it could be done. This expanded precognition has not been typed yet. It was given to Mr Dickson last week and some ladies rings which are productions were to be shown to the police officer for possible identification. It would appear that this police officer has not attended at Elgin Police office to identify those rings and the untyped precognition remains in Mr Dickson's possession. I have been unable to locate it around the office and do not propose to write it up again. I suggest that Mr Dickson gets this typed up next week and forwarded onto Crown Office when he can."

 

I shall call this the Burns-Gilchrist letter. Mr Gilchrist told the Dyer-Gray Inquiry that he did not know if he read the Burns-Gilchrist letter, but that it would not have meant anything to him anyway. He would have passed it to the indicter. Mrs Bruce saw this letter. On 10 September 2002 she wrote to the procurator fiscal at Elgin about certain matters that it raised.

[63] On 22 July 2002 Mr Dickson returned from leave. He did not call PC Lynch to his office to see the deceased's rings. He did not draw up a formal precognition of PC Lynch for submission to Crown Office. The Burns-Bruce letter refers twice to the precognition of PC Lynch. On 4 September 2002 Mr Dickson wrote to Miss Bruce and said inter alia that he had "carefully considered" the Burns-Bruce letter.

[64] Thereafter Mr Dickson was transferred to Crown Office and in January 2003 was succeeded by his depute, Mrs Sharon Ralph. According to Mrs Ralph's statement to the Dyer-Gray inquiry, she found the office to be in crisis. There was a backlog of work. Mr Dickson had asked the police to hold back any new reports.

[65] The advocate depute was Mr Alan Turnbull QC, now Lord Turnbull. From his statement to the Dyer-Gray inquiry, we know that the contents of the Burns-Bruce and Burns-Gilchrist letters were not brought to his attention. In the event, the advocate depute did not read the correspondence file between Crown Office and the office of the procurator fiscal at Elgin. In his statement to the Dyer-Gray inquiry, he said that this was because the file was in "a real mess."

[66] Mr Dickson assisted the advocate depute throughout the trial and had his own set of papers.