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.