IN APPEAL BY
NAT GORDON FRASER
against
HER MAJESTY'S ADVOCATE
SUMMARY
6 May 2008
Today at the
Lord Justice Clerk - Lord Gill
"On the
morning of
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
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
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 (
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 (
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
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.
|
|
|
Lord Justice Clerk
Lord Osborne
Lord Johnston
|
[2008] HCJAC26Appeal No: XC229/03OPINION 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:
6 May 2008
I The conviction and the
appeal
[1] On
[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
The
[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
[7] Mrs
Thompson was in the house at
The appellant's contacts with Hazel
Walker
[8] On
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
[12] On Monday 27 April at about
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
[14] At about
[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
The appellant's movements on
[17] On 28 April between
[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
[20] On 29 April at about
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
[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
[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
[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
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
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
[35] On 8 May the police held a press conference. They released details of the
The meeting at
[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
[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
The enquiry is re-opened
[40] On
[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
The "Frontline
[43] On
"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
The appellant's police statements
in November 1998
[44] On
[45] On
[46] In about December 1998, the appellant attended voluntarily at
The arrest of Dick and his police
statements
[47] On
The appellant's police statement of 4
October 1999
[48] On
Dick's offer to the Crown
[49] On
"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