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 SCCR 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 SCCR 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 SCCR 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.
The defence preparations
The defence
request for disclosure
[67] The appellant's solicitors at the trial were Beltrami and Co,
Glasgow. By letter to Miss Bruce dated 16 September 2002, they
requested copies of all of the Crown's precognitions.
The defence
precognitions
[68] The grounds of appeal
are based on the proposition that neither PC Lynch nor WPC Clark was
precognosced by the defence and that the defence were unaware of the
significant evidence about the rings.
The appeal hearing proceeded on that basis until the penultimate day,
when counsel for the appellant produced precognitions of PC Lynch and WPC Clark
that his instructing agent had just found in the trial papers of Beltrami and
Co.
[69] After the trial, PC Lynch was interviewed by Miss Morag
McLaughlin, the area procurator fiscal for Grampian. He told her that he had not been precognosced
by the defence. WPC Clark told the
Dyer-Gray inquiry that she had received a letter from the defence seeking to
precognosce her but that it had not been followed up. I take these references to "the defence" to
mean that neither officer was precognosced by any of those acting for the three
accused. In the precognitions now produced,
neither witness mentions the rings. The
precognitions were prepared on the instructions of Beltrami and Co by
Macpherson Precognitions, Inverness, a
precognition agency run by Mr Murdo Macpherson, a former police officer. These precognitions read like transcriptions
from police statements. As is within the
knowledge of all of us, precognition agents are at times content to accept a
secondary source, such as a police statement, where it appears that a witness's
evidence will be formal. Counsel for the
appellant told us that Mr Macpherson accepted that he has done this from time
to time; but that in this case, although his memory was uncertain on the point,
he thought that he actually precognosced the witnesses. If that is so, he failed to explore with
either witness the question whether there were rings in the house on 28-29
April.
VI The trial
Dick's defence
of incrimination
[70] The appellant lodged a special defence of alibi. Dick lodged a notice in terms of section 78
of the Criminal Procedure (Scotland)
Act 1995 (the 1995 Act) naming the appellant.
At the outset, the Crown case was wholly circumstantial; but it was
clear that if Dick were to give evidence, he would probably incriminate the
appellant directly. On 14 January 2003, the advocate
depute withdrew the libel against the co-accused in the course of the Crown
case. Dick then gave evidence for the
Crown.
Dick's evidence for the Crown
[71] Dick's account was that the appellant told him that he had
financial troubles arising from one of his separations from the deceased. He hoped to gain a financial advantage in the
separation. A separation would cost him
about £86,000. He asked Dick if he would
buy his house and his whisky collection.
On the night of 4 April
1998, when they met the deceased in Elgin, the
appellant had twisted his arm to get him to go out for a drink with him.
[72] After his Granada went on
fire, the appellant at first told him that he would not need another car; but
on 19 April he told him that he wanted one.
The appellant said that he was not happy about the deceased's going out
socially with female friends. Dick said
that the appellant was "green-eyed" and jealous about this sort of thing. The appellant repeated that he wished to get
a financial advantage over the deceased and asked about the car again. The appellant said he was going to the house
and removing property. He still had the
keys.
[73] On Sunday 26
April 1998 the appellant appeared at Dick's farm with
Jamie. He and Dick had a conversation in
a bothy. The appellant was annoyed and
agitated. He again spoke about the
deceased's going out socially. He was
concerned that another man would end up living with his children. He asked Dick if he had found a car for him. He said that about 10,000 people disappeared
every year and were never found. He
thought that the deceased was having an affair.
He did not wish her to be with anyone else. He was furious about that.
[74] After Dick and the appellant left the bothy, they passed
45-gallon barrels that Dick used for burning rubbish and carcasses. When they were beside the barrels, the
appellant again spoke about people who were never found. He said that if they were never found, no
questions were ever asked. He said that
there were people who would make people disappear. He had been speaking to someone who knew
about things like that, but did not trust him.
The appellant returned to the subject of the car. He said that he would need a car within a
couple of days. He also mentioned having
visited the library for a book about court cases. He said that there had been only two court
cases in Scotland in which
there had been a conviction for murder where the body had not been found. The appellant said that he had read a
magazine article about identifying bodies by bone sample. He said that for proper identification, you
needed to have a bone at least three inches
long.
[75] Dick said that on Monday 27 April, he telephoned Ritchie
because he wanted to find a car for the appellant. The appellant arrived at the farm while
Ritchie was there. After Ritchie left to
look for a car, Dick told the appellant that he would leave the car in the car
park with the keys in it if he was not about later. The appellant left at about 7 pm.
Later that evening, Ritchie returned with the Fiesta. At about 9.30 pm Dick left it in the car park with the keys in the
ignition. Not long after, he heard a
vehicle being driven away. In the
morning the Fiesta was gone.
[76] Dick said that when he heard that the deceased was missing, he
was alarmed because of his previous conversations with the appellant and
because the car had been bought. On 30
April he and his wife visited the Taylors. The appellant was there. When he and the appellant were left alone,
the appellant signalled to him that he did not wish to talk; but whispered to
him that the car would be coming back.
He said "we have had a wee bit of a scrape."
[77] On Friday 1 May he first spoke to the police. When he got up on the following Sunday
morning, the Fiesta was back at the feed store.
He thought that it had arrived there late on the Saturday night. It was undamaged. There was a small bundle of children's
clothing on the back seat. He thought
that it was Natalie's. There was also a
lady's half-length chocolate-coloured coat with a thick collar of a slightly
different colour. He was concerned that
the car might have been used in connection with the deceased's
disappearance. He burned the car so that
there could be no forensic tests on it, flattened it with a digger and put it
on a trailer. On the following morning,
Monday 4 May, he took it to Williamson's scrap yard in Elgin.
[78] In early May and in early June, Dick was interviewed by the
police. He did not tell them what he had
done. He was not asked about the
car. After the June interview, he
contacted the appellant. That day, the
appellant accompanied him while he was delivering coal. The appellant asked him if there was any
record of the transaction involving the car.
He said that there was not. The
appellant seemed quite happy that the car had been destroyed.
[79] Dick said that in June 1998 he asked the appellant what had
happened to the deceased. The appellant
said that she was dead. He said that he
had disposed of the body by burning it.
There could be no identification of her.
He had ground up her remains, including her teeth, so that there could
be no identification by dental records.
Her body could not be found, so there would be no problems. He had disposed of it near Elgin. He told Dick to settle down. He said that the body had been hidden somewhere
near New Elgin for two weeks before being burned. The police had been close
by her body. He had been under police
surveillance, but he had been going out at night and had outmanoeuvred
them. On the night of the disappearance,
he had gone to the house and tidied up to clear away any evidence. He had wiped up. He had cleaned something.
[80] This was the first of a number of conversations that Dick had
with the appellant as to what had become of the deceased. The appellant said that he had paid someone
to do it. The deceased had been killed
in the house. He had given the killer a
key to the house. Dick said that he knew
that the appellant still had a key to the house and was removing property from
it.
[81] Dick said that later in the summer the appellant said to him
that when the killer had been in the house, someone had come about the house
and had almost come a cropper too. He
said "Thank fuck it wasn't the kids that came home from school or they would
have got it as well."
[82] The appellant also said that the children would soon get over
their mother's disappearance. From what
the appellant had said, Dick understood that the deceased had been strangled in
the house, that her body had been removed and hidden and that the appellant had
thereafter burned it. He had scattered
the remains. The appellant made a
gesture of strangulation a couple of times when talking about the deceased's
death. He had arranged this so that he did not
have to pay the deceased any separation money.
He had paid the person whom he had engaged with "dodged cash."
[83] Dick said that while he was on bail awaiting trial, he met the
appellant at his house. He told the
appellant that he had spoken to the police about the appellant and the
car. He asked the appellant if he would
come clean about the car and own up to his knowledge and his use of it. The appellant said that there was no chance
of that. He had got himself an alibi and
he was not budging.
[84] In cross-examination Dick admitted to having told lies. He also denied certain allegations that he
had lied in other respects. He admitted
that he had been involved in the bootlegging of duty free vodka, but denied
that the Fiesta had been bought for that purpose. He admitted that during the course of his
police interview on 1 October
1999 he lied and did his best to keep the police off the
scent. He said to them that he was not
sure what the car had been used for. He
had been covering for himself and the appellant.
[85] Dick said that on Friday 24 April he had gone to see the
deceased at the house. She said that she
knew that the appellant was going in and out of the house. On the Sunday before the disappearance, the
appellant had told him that the deceased would be at home on the Tuesday.
The evidence
of Michelle Scott
[86] The advocate depute recalled Michelle Scott. She said that when she searched the house
after the deceased's disappearance she could not find the deceased's three
quarter-length jacket. It was of a
mid-chocolate brown colour and had a small collar. This evidence was not challenged.
Defence case
Dick recalled
[87] The defence led evidence from the appellant and four other
witnesses, one of whom was Dick.
[88] Dick denied having said during a meeting with DI Japp and DS
Mackay at Inverness Prison on 5 October
1999 that "The car is 70% gettable and the body is 50%." He explained that discussion about percentage
prospects for recovering the car and the body first arose during a meeting that
he had with his solicitor on 11 October
1999. He understood that
after that meeting his solicitor had discussions with the police. It was only after that that the police raised
the point with him.
DI Japp and
DS Mackay
[89] DI Japp said that he met Dick at Inverness Prison on 5 October 1999 to discuss
Dick's bootlegging activities. He said
that as he and DS Mackay were leaving the meeting Dick made the following
unprompted remark. "I know what you are
after. The car is 70% gettable, the body
50%." He said that he had not had his
notebook with him but thought that he had scribbled the remark on a piece of
paper. That was the only record that had
been made of it. It had not been kept. DS Mackay corroborated the evidence about
Dick's remark.
The
appellant
[90] The appellant denied having killed the deceased or having been
involved in her disappearance or death.
He said that he kept sums of money hidden behind the vent in the bedroom
and in the gun cabinet. He spoke of the
matrimonial problems that he and the deceased had experienced. He did not consider that there had been any
realistic prospect of the deceased leaving him permanently and setting up with
another man. He denied that he ever said
to the deceased that if he could not have her, nobody else would. He admitted having had some minor involvement
in bootlegging with Dick. He denied that
he set fire to the Ford Granada. He said
that having met Hazel Walker on 18 April
1998, he telephoned her from a number of telephone boxes during
the mornings of the following week. He
described his movements on 27 and 28 April. At that time he was living with the Taylors. He met Ritchie at Dick's farm on 27 April,
but was not involved in the acquisition of the Fiesta. It was a coincidence that he was there that
night. He had not been involved in the
conversation between Dick and Ritchie.
He had read the local newspaper while the car was being discussed. On 28 April he spent the day making
deliveries. He telephoned Hazel
Walker. He accepted that the deceased
had disappeared at that time. He denied
having arranged an alibi to cover the morning of that day. He said that he had received a telephone call
from Patricia Gauld at around 9.45 pm. She had been enquiring as to the whereabouts
of the deceased.
[91] The appellant denied Dick's evidence against him on all
material points. On the question of the
rings, he said that he had no idea how the deceased's rings had got onto the
dowel. He denied that he put them
there. In cross-examination, he denied
the suggestion that the killer removed the rings from the body and put them
back in the house, that he was the killer and that he put them back on the
dowels. He said that when he gave his police
statement on 15
November 1998, he could not remember if he had been at his mother's
house for his tea on the evening of 27 April.
[92] He denied that he said to Hector McInnes that the children
would eventually forget their mother. He
conceded that he might have said "they will be missing their mother." He said that he gave up hope that the deceased
was alive after he heard Dick's evidence.
He agreed that it was obvious that she was dead.
[93] In cross examination he admitted that he had said to a number
of people over the years that he believed that the deceased might be alive and
well and living somewhere else. He had
said this because he "didn't know what had happened" to her. Notwithstanding his television interview, he
said that he had kept hoping that he and the deceased would get back together
again. He admitted that he had told the
police that he thought that the deceased was having an affair at the time of
her disappearance. He admitted that he
had told Dick that he was jealous that she was seeing another man. He admitted that he knew that if she divorced
him she would be wanting 50% of what he owned.
[94] He said that as far as he knew, she did not know about the
money hidden behind the vent. He agreed
that the vent could have been moved and the money taken only by someone who had
been told about the money by himself. He
said that no one else knew about it. The
appellant was extensively cross-examined about this. He admitted that nobody could have known that
the vent was a hiding place for money apart from him unless the deceased had
discovered the hiding place after he left the house on 20 March 2006. At that date the vent was in its proper
place. He admitted that he told Carol
Gillies and Alexander Munro about money being missing from behind the
vent.
[95] He admitted that he had a life policy over the deceased and
that he was the only person who stood to benefit from her death.
[96] In re-examination, he was asked if he could think of any reason
why, if he planned to kill the deceased, and if he had arranged for a hit man
to do it, the hit man or the killer would require to go anywhere near any
vents. He said "Unless I told them
to." He was asked if there was any
reason why he would tell them to. He
replied "To make it look like a robbery."
Then he was asked "Were there any drawers torn away in the house, was
there anything on the face of it appeared to be taken, any disturbance?" He replied "I dinnae think so, no."
Richard
Murray
[97] Richard Murray, the operations manager of Spey Bay scrap
yard, said that in April 1998 he was contacted by telephone to quote a price
for a Ford Fiesta. Three men later
appeared at his yard with a B-registration Fiesta. He had dealt with one of the men, who had
been in his late 50s. Although he had
not known Dick in April 1998, he believed that, from newspaper photographs that
he saw a few years later, this man had been Dick.
[98] In cross-examination it was put to him that when he had told
the police about two men coming to his yard, he had said that the man with whom
he had dealt had been in his late 20s or early 30s and that the other man with
him had been in his late 20s. He said
that he could have been mistaken when he first spoke to the police about the
men, that he only subsequently remembered that a third man had been present and
that it had not been until March 2002 that he realised that the man with whom
he dealt could have been Dick.
[99] Counsel for the defence led this evidence to show that Dick was
lying when he said that he crushed the Fiesta and conveyed it to Williamson's
scrap yard.
PC Lynch
and WPC Clark
[100] Neither PC Lynch nor WPC Clark was called by the Crown or the
defence.
The indictment in its final form
[101] At the end
of the Crown case the trial judge found that there was no case to answer under
one head of the charge of attempting to defeat the ends of justice. At the end of the defence case, the advocate
depute withdrew the remainder of that charge.
The case therefore went to the jury on the murder charge only, which in its
finally amended form was as follows.
"Between 26 March 1998 and 28 May 1998, both dates
inclusive, at 2 Smith Street, New Elgin, Elgin, Wester Hillside Farm,
Mosstowie, Elgin, Tzaneen, Burnside Road, Lhanbryde, Williamson's Scrap Yard,
Moycroft Industrial Estate, Elgin and elsewhere in Scotland to the Prosecutor
unknown, knowing that your wife Arlene Fraser, now deceased, formerly residing
at said 2 Smith Street, had consulted with a solicitor with a view to
instituting divorce proceedings and obtaining a financial settlement from you,
you NAT GORDON FRASER while acting along with another or others whose
identities are to the Prosecutor meantime unknown did
(a) between
26 March 1998 and 27 April 1998, both dates inclusive, at said Wester
Hillside Farm or elsewhere in Scotland to the Prosecutor unknown, arrange the
purchase of a motor car with a boot;
(b) on
4 April 1998 at said 2 Smith Street, set fire to a motor car registered
number A19 NAT; ...
(d) on 27 April 1998 at said Wester Hillside Farm, by the hands of
Hector William Dick, residing there, purchase and secrete motor car registered
number B231 PDY;
(e) between
28 April 1998 and 7 May 1998, both dates inclusive, at said 2 Smith
Street or elsewhere in Scotland to the Prosecutor unknown, assault said Arlene
Fraser, then residing at said 2 Smith Street, and did compress her neck
and strangle her or by other means to the Prosecutor unknown assault her and
did murder her ...
and you NAT GORDON FRASER did previously evince
malice and ill-will towards said Arlene Fraser."
The advocate depute's speech
[102] The advocate
depute submitted that the appellant had a motive to kill the deceased; that the
vent was moved on the day of the murder; that the appellant had made it look as
though the deceased had run off with the money; and that the finding of the
rings suggested that the appellant removed the rings from the body.
[103] When he came to deal with the rings he said the following:
"The discovery of these rings represents one of the
most compelling pieces of evidence that you will ever hear in a court in a case
of this kind ... eight or nine days after her death these rings were removed from
the dead body of Arlene Fraser and taken to the house to be planted on the
dowel rail ... probably as some kind of shallow gesture in the mind of a
panicking individual ... the finding of the rings is the cornerstone of the
entire case against him ... it is a piece of explanation (sic) for which Mr Fraser has simply no explanation and it
demonstrates his complicity and his guilt beyond any doubt" (p 32).
He submitted that the finding of
the rings indicated that the appellant put them in the bathroom in a panic for
the purpose of suggesting that the deceased was still alive (p 33), and that he
had had access to the deceased's body for some time after her disappearance. He submitted that this tied in with Dick's
evidence that the appellant told him that the body had been hidden for two
weeks before he disposed of it (p 34).
Then came the following dramatic passage during which he held up the
rings.
" ... ladies and gentlemen, these rings tell us that
the dead body of Arlene Fraser was available eight or nine days after her
killing for these rings to have been removed from her, so long of course as the
person who did it knew where the body was hidden. This
is the engagement ring of Arlene Fraser, this
is the wedding ring and this is the
eternity ring. These are the rings that he gave to his young wife and the
mother of his children. How ironic that
these tokens of love, of permanence and of fidelity should end up being his
undoing because they are the undoing of a husband who became consumed by
jealousy and greed and these rings tell us as eloquently and as powerfully as a
witness who saw what happened that Nat Fraser killed Arlene. There is nothing satisfying about proving the
guilt of this man because it changes nothing.
It doesn't change the awful circumstances that Arlene's family live with
and it doesn't change the awful circumstances that the children live with. But there is perhaps something inherently
just in the way that after death something of Arlene's can reach back and
ensnare the man who promised he would live with her forever and then took her
very life just because it no longer suited his purposes.
So ladies and gentlemen, perhaps you will see that
when we just look at the circumstantial evidence we see only Mr Fraser had a
motive to kill his wife, the evidence of and about the vent suggests it was
moved on the day of the killing and points towards his involvement as being
responsible for organising her death and it was made to look as though she had
run off and taken the money and the evidence of and about the rings shows he
knew where the body was hidden and he removed the rings from it. Only the person responsible for her death,
the killer and the person who arranged it, could have known how to do
that. So, ladies and gentlemen, before
we even begin to look at Hector Dick's evidence we can see that there is enough
evidence to demonstrate beyond reasonable doubt the guilt of Nat Fraser and
that is before we add in the comment of Arlene's father, Hector McInnes. You will remember he said to us that in the
kitchen Mr Fraser let slip the comment that the children will soon get used to
missing their mother at a time when everyone is expecting that any minute there
will news that she has turned up somewhere else. Well, once again, as we have seen two or
three times now, I will count them up for you perhaps at the end, of those two
people, one has to be a liar. The father
of the dead woman or the husband of the dead woman. One or other of them has to be lying ... " (pp
34-36)
[104] The advocate depute then dealt with Dick's evidence. In the course of his review of it, he said
the following
" ... You might find, ladies and gentlemen, that you
can summarise what Hector Dick said.
When I was looking at it, it seemed to me that you could summarise it in
probably eight points. He says that the
body was hidden for two weeks. He says
the body was burned and ground up and scattered. He says that Fraser had told him he had been
to a library, looked up some books, seen that there were only two cases in
which there had ever been a conviction without a body and he told him about the
facts of one of them. The fourth point
is he said Fraser told him he had given someone a key to go to 2 Smith Street. The fifth point, the
children would soon get over their mother's disappearance. Sixth, he didn't want Arlene living with
someone. Seventh, he thought Arlene was having an affair and eight, the cost of
the divorce. There are ways in which you
can check each one of those comments and cross-reference it with the other
facts in the case and if you do that you may or you may not find that there is
support for what Mr Dick says ... " (pp 37-38)
He then discussed the evidence that
could support Dick's account on these points.
[105] By way of conclusion, he returned to the subject of the
rings. This is what he said.
" ... And, ladies and gentlemen, the rings will
provide you, along with the other evidence, with the security that you need to
rest happily at night in knowing that you have brought some justice to this
case in convicting Mr Fraser. These are
your security.
So ladies and gentlemen, I suggest to you that on
the evidence your duty is to convict that man of arranging the killing of his
wife and that is the crime of murder" (p 54).
The defence speech
[106] Counsel for the defence did not dispute that the deceased had
been murdered. The central theme of his
speech was that Dick was a liar and that it was he and not the appellant who
was responsible for the murder. He
described the Fiesta car as the "key to the case" and said that the cornerstone
to the case was Dick and the car. He
robustly dismissed the advocate depute's words about the rings as
"rubbish." He suggested that the jury
could make very little of the evidence about the rings, that there were many
people coming and going in the house and that there was no obvious reason why
the appellant should have put the rings in the bathroom. He pointed out that there was no evidence
that the deceased was even wearing her rings when she disappeared. He commented on the lack of independent
support for the evidence of Dick. He
suggested that the murder was a mystery that might never be solved. He sought to neutralise the evidence relating
to the appellant's motives and of his seeming ill-will towards the
deceased.
The trial judge's charge
[107] The trial judge directed the jury that there was sufficient
evidence in law to entitle them to convict (p 33). He dealt inter
alia with the circumstantial case and with the evidence of Dick (pp
64-89). Then he gave the following
directions.
"Ladies and gentlemen, I have to direct you that if
you reach the view that you are not prepared to accept and rely upon the
evidence of Hector Dick there would still be sufficient evidence before you
which would entitle you to hold that the accused, Nat Fraser, instigated and
agreed with another or others that his wife should be killed and that his wife
was killed or was murdered in furtherance of that instigation or agreement. What you make of that other evidence as to
the facts and circumstances is entirely for you. What weight you are prepared to place on that
other evidence is again entirely for you.
Likewise it is for you the inferences that you draw but as a matter of
law I have to direct you that even if you choose not to rely on anything that
Mr Dick said there is still sufficient evidence before you that would allow you
to convict" (pp 89-90).
For reasons that I shall give, I
consider that this direction was correct; but the trial judge immediately added
the following direction, which counsel for the appellant submits is critical to
this appeal.
"On the other hand, ladies
and gentlemen, [counsel for the accused] also placed a number of arguments
before you, not least in his submission that you should accept the evidence of
the accused in seeking to persuade you that you should not hold that the
accused had placed the rings in the bathroom at 2 Smith Street on 7th May of
1998. Ladies and gentlemen, I have reached
the view, having regard to the manner in which the advocate depute presented
the Crown's case to you, that I should direct you that if you reached the view
that you were not prepared to hold that it had been the accused who placed the
rings in the bathroom on 7 May then in that event it would not be open to
you to convict the accused. The advocate
depute referred to the return of the rings as being the cornerstone of the
Crown case. On that approach to the case
and without the cornerstone you would not be entitled to hold that the accused
had instigated and agreed with another or others prior to the last time that
Arlene Fraser was known to be alive that she should be killed and in that event
you would be bound to acquit him. That
is because establishing a prior instigation and agreement is an essential
element of the Crown case" (p 91).
VII Post trial events
Information coming to light after the
appeal was lodged
[108] This chapter of the history relates to the discovery by Crown
Office, after the trial, of evidence from PC Lynch and WPC Clark about the
presence of the deceased's rings in the house immediately after her
disappearance. This evidence was not
known to the key officials of Crown Office or to the advocate depute before or
during the trial and was not disclosed to the defence until March 2006. This discovery has led to two inquiries and
it underlies both grounds of appeal. In
view of the public interest in this appeal and the controversy to which this
evidence has given rise, I shall set out the sequence of events relating to the
discovery of it, although I do not regard it as decisive in this appeal.
Mrs Ralph's
discovery
[109] On 15 April 2003 Mr Dickson returned his trial papers to the
office of the procurator fiscal at Elgin with a covering letter signed by
him. In the spring of 2004, Mrs Ralph
learned from Mr Burns that he had precognosced PC Lynch, that PC Lynch had told
him about seeing the rings and that he had left the precognition with the note
attached on Mr Dickson's desk. Mrs Ralph
looked out the boxes of papers that Mr Dickson had returned. In one of them she found his covering
letter. Underneath it, on top of the
bundle of papers, she found Mr Burns' draft precognition of PC Lynch and his
handwritten notes, with his note to Mr Dickson still attached to the first
page.
[110] Mrs Ralph reported this to the then area procurator fiscal for
Grampian, Mr John Watt. Mr Watt examined
the papers, saw that they included the Burns-Bruce and Burns-Gilchrist letters
and the precognition of PC Lynch and assumed from their presence in the bundle
that the precognition must have been known to both Mr Dickson and Crown Office.
Mr Watt's
inquiry
[111] Mr Watt was at that time conducting a separate inquiry arising
from this case. It related to a
complaint by an officer in the murder enquiry team, PC David Alexander, that DC Supt
Wilkins had not properly investigated PC Alexander's concerns about a Masonic
link between the appellant and DS William Robertson, another member of the team, who had interviewed the appellant with
PC Lynch at 3am on 29 April. The
complaint involved an allegation that the deceased's rings had been removed
from the house by DS Robertson, kept in a drawer at the police office and
returned to the house by 7 May. Counsel
for the appellant alluded to the possibility that this allegation was true and
suggested that WPC Clark's evidence to the Dyer-Gray inquiry indicated that DS
Robertson and other officers had put pressure on her not to say anything about
the rings. Since these allegations are
not part of the grounds of appeal, and since in any event no evidence has been
led to support them, we cannot, in my view, take them into account.
[112] By January 2005 Mrs Ralph continued to be concerned about the
precognition of PC Lynch. She contacted
Crown Office and ascertained that the grounds of appeal did not refer to PC
Lynch
[113] Thereafter, it became apparent that the advocate depute had not
been given a copy of PC Lynch's precognition and throughout the trial had been
unaware of what PC Lynch had said. It
also became obvious that the precognition had not been disclosed to the
defence. On 25 October 2005 in an e-mail from Mrs
Ralph, the advocate depute learned of the precognition for the first time.
Miss Morag
McLaughlin's inquiry
[114] On 25
November 2005 Miss Morag McLaughlin, Mr Watt's successor, was
instructed to investigate and to report.
On 8 February 2006 she precognosced PC Lynch. PC Lynch said that he first attended at the
house with WPC Clark around 10.30-11.00
pm on Tuesday
28 April 1998. During this
visit he saw jewellery in the bathroom on a shelf of some sort. His recollection was that he saw two or three
rings there and a chain necklace, or maybe two.
The rings were wedding/engagement/eternity type rings, and not dress
rings. The jewellery was all
together. He had given this information
when he was precognosced on 3 July
2002. He said that when he
and DS Robertson interviewed the appellant at the Taylors' house at 3am in the morning of 29 April, there
was "something not quite right about the appellant's responses and demeanour."
[115] Miss McLaughlin concluded that the discrepancies between PC
Lynch's two precognitions could be explained by the passage of time. She also found that there was no evidence to
establish that DS Robertson had had the deceased's rings in his drawer at any
time between 28 April and 7 May.
[116] On 2 March 2006 Miss McLaughlin precognosced
WPC Clark at Aberdeen. This was the first
occasion on which the question of the rings was raised with her. WPC Clark said that either on the night of
28 April 1998 or in the early hours of 29 April 1998, when she was at
the house with PC Hall, PC Lynch or DS Cooper, 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. This was before the formal police searches began. She was sure that she had mentioned
the jewellery when she was precognosced at Elgin before the
trial. This
information was not contained in her Crown precognition, in any of her police
statements or in her police notebook.
The Dyer-Gray inquiry
The remit
[117] On 11 March 2006
the following statement relating to this appeal was made on behalf of the Lord
Advocate:
"In preparing the Crown's response to this appeal, Crown
Counsel has learned that evidence which was relevant to the case was not made
available to the defence or to the Court at the time of the trial. Crown Counsel considered that this evidence
should be made available to the defence under the duty which the Crown has to
disclose evidence which undermines the prosecution case or may assist the defence
... The Lord Advocate regards it as a matter of serious concern that this
evidence was not made available to the defence prior to the trial. For that reason, the Area Procurator Fiscal
for Glasgow, Catherine Dyer, has now been asked to conduct a full investigation
into this matter. At the same time,
Grampian Police asked the Association of Chief Police Officers in Scotland to
appoint a lead investigating officer into the handling by Grampian Police of
relevant information and evidence concerning the Arlene Fraser murder enquiry ...
The primary purpose of these investigations is to establish the facts and to
ensure that all relevant evidence is available for the appeal ... "
Richard Gray, Deputy Chief
Constable of Strathclyde, was appointed to conduct the inquiry with Mrs
Dyer. I shall refer to it as the
Dyer-Gray inquiry. Its remit was to -
"establish
independently the facts surrounding the rings, including the information known
to the police and Crown at the time of the trial in relation to the sighting of
the rings and any failures of disclosure of such information; and to ensure
that all material relating to these matters that can be of assistance to the
appellant and to the proper disposition of the appeal is made available."
Some of the statements made to the
Dyer-Gray Inquiry
David
Dickson
[118] Mr Dickson accepted that he instructed Mr Burns to precognosce PC
Lynch; but, despite the fact that Mr
Burns left the precognition on his desk with the yellow note attached and
despite the fact that Mr Dickson returned the precognition and note to the
Elgin office with the rest of his trial papers, Mr Dickson told the Inquiry
that he never saw either document. He
said that he had no recollection of anyone telling him about either of the
matters relating to PC Lynch's precognition that are mentioned in the
Burns-Bruce letter and that he was never aware of it. Despite having said in his letter to Miss
Bruce dated 4 September 2002 that he had "carefully considered" the Burns-Bruce
letter of 19 July 2002, he said that he first saw the Burns-Bruce letter in
2005 when he was interviewed by Ms McLaughlin. He agreed that he could not
reconcile his position with what he said in his letter to Miss Bruce.
Denise
Bruce
[119] Miss Bruce accepted that
she must have seen the Burns-Bruce and Burns-Gilchrist letters. She said that she would expect the advocate
depute to have read the correspondence file.
Lord
Turnbull
[120] Lord
Turnbull explained his approach to the case as follows
"I subsequently referred to the rings in my speech to the
jury as the 'cornerstone' of the Crown case and this was my view very early on
in my preparations. At an early stage in
my involvement, I thought they were the key piece of evidence. Essentially, the fact that they were not
there on the day of the police video being taken and then subsequently
re-appearing later in the bathroom after Nat Fraser had been present appeared
to be of particular significance."
His reaction to the information contained in PC Lynch's
precognition, which was referred to in the Burns-Bruce and Burns-Gilchrist
letters, was as follows.
"If I had seen these
references at the time I was preparing for trial I would have thought that I
had to get to the bottom of this issue because I would have been concerned that
there were issues about the rings, which were a crucial piece of evidence in
the case. What I was told in relation to
the rings as I prepared the case was different to what was in the shopping list
letter [sc the Burns-Bruce letter
dated 19 July 2002] but if I had read the correspondence then one of the main
concerns at the preparation stage would be to bottom this out and to answer it
if possible ...
... I am referred specifically to the reply to
the shopping list letter dated 19 July
2002. I am referred to 2
paragraphs relating to the rings, at page 2 and page 8 of the letter. If I had seen these paragraphs, I would have
realised that they were inconsistent with the material I had. I would have focused on these very easily if
I had read that letter at the time.
Sometimes cross referencing with all the documentation in a case can be
very difficult therefore it can be better to do it by speaking to people who
have knowledge of the case and that is why when I saw initially the number and
length of the letters from the High Court Unit to David Dickson and his replies
I decided that it would be better to discuss what I needed to know with the PF
staff and the police rather than wade through the lengthy correspondence on the
file.
The information that the
rings were present in the house on the day Arlene Fraser disappeared would have
been inconsistent with the case theory that I had developed. Essentially my case theory was that Nat
Fraser had set up a deliberate alibi; that he had dealings with the person of
Arlene Fraser following her sudden disappearance, either alive or dead; this
was the context in which he obtained and later reintroduced the rings to the
house; and there was never the slightest suggestion that he picked up the rings
from inside the house ...
... If in the course of the trial I had been
shown the references in the correspondence or Lynch's precognition, then I
honestly would have fainted, so inconsistent would it be with my thinking and
my view of the evidence. If the Lynch
precognition had come to light during the trial, however, then clearly the
trial would have had to be deserted.
There would have had to have been further Crown enquiry and defence
precognition etc. If I had been shown it
at any stage during my preparations I would certainly have wanted to know all
about it and would have wanted the whole thing bottomed out."
[121] Lord Turnbull's statement also disclosed
that during the preparation of the prosecution, the question of the rings had
expressly arisen. He said that he was
certain that he was told that a police officer had seen rings in the house
after the disappearance and before 7 May, but that he had a clear recollection
of being told that the officer had made a mistake. It was his impression that he was told this
by DC Supt Wilkins. Counsel for the
appellant suggested that it was possible that Lord Turnbull had been lied to on
this point. Having heard no evidence on
the matter, we can make no finding about it, in my view.
Sharon Ralph
[122] Mrs Ralph said inter alia that
in April 2006 WPC Clark told her that she had seen the rings. WPC Clark then broke down and wept in fear of
being interviewed by officers of Strathclyde Police and of the treatment she
would receive as a result.
PC
Lynch
[123] By
2006 PC Lynch had retired. One morning
in either March or June 2006, DS Charles Byrne and DC Andy Wright of
Strathclyde Police came to his door unannounced. They wished to interview him as part of the
Dyer-Gray inquiry. These officers
subjected him to an interrogation of the most unpleasant kind. I need not go into the details. It is sufficient to say that DC Wright, who
conducted the questioning, was so aggressive and offensive towards him that Mr
Lynch ended the interview and asked both officers to leave. DC Wright records in his statement to the Dyer-Gray
inquiry that at this point he said to Mr Lynch "that the next time we would
speak to him would be on our terms."
[124] Even after the Dyer-Gray inquiry was
concluded, DS Byrne and DC Wright continued to investigate the question of Mr
Lynch's evidence about the rings. They
interviewed him again, apparently without reference to the procurator fiscal or
Crown Office, on 23 and 29
November 2006.
In the statements taken in these interviews, Mr Lynch is recorded as
having accepted that he might have been mistaken as to what he saw in the house
on 28-29 April 1998.
WPC
Clark
[125] WPC Clark gave statements to Strathclyde Police on 17 and 29
March 2006. In the first of these she
repeated the suggestion that she had mentioned jewellery to Mr Burns when he
precognosced her. She said that she saw
at least two finger rings and a chain of some sort on the dowel. In her second statement she accepted that
there was no reference to jewellery in her precognition of 28 June 2002, but she insisted that she had
told Mr Burns about that. She also made
a sketch of the layout of the bathroom that showed the dowel on the left of the
sink, whereas it was to the right.
Douglas Burns
[126] Mr Burns was adamant that
WPC Clark did not mention any sighting of jewellery when he precognosced
her. There is no reference to jewellery
in his notes of the interview.
Ian Walker
[127] Mr Walker was interim
procurator fiscal of Elgin in November-December 1998.
He was interviewed by Mrs Dyer.
His evidence was to the effect that in late 1998 to early 1999 it was
known in the office of the procurator fiscal at Elgin that there was evidence that the deceased had left her
wedding ring behind when she left the house.
This statement can be related to a meeting that Mr Walker attended at
Grampian police headquarters on 9 December 1998 at which one of the documents
considered was the missing person enquiry summary that recorded that the
deceased's jewellery was found in the bathroom.
The Woods-Bowie Report
[128] As part of the Dyer-Gray inquiry, Miss Elaine
Woods, a forensic analyst, and Dr Leslie Bowie, a chartered engineer,
examined the Crown video to determine whether or not three rings could have
been present on the wooden dowel without being visible on the video. In their Report dated 7 November 2006 they concluded that, while the rings could not be seen,
their presence could not be absolutely ruled out, given the limitations of the
views contained in the recording.
The Dyer-Gray Report
[129] During the hearing counsel for the appellant referred us to the
Dyer-Gray Report, but in the event both he and the advocate depute disclaimed
any reliance on it. The Report leaves
several important factual questions unresolved, not least that of Mr Dickson's
credibility in relation to the precognition of PC Lynch, but it sheds some
light on the approach of the advocate depute at the trial and on the positions
of PC Lynch and WPC Clark. But since
neither counsel relies on the Report, we need not consider it further on the
central issue in this appeal.
VIII The grounds of appeal
[130] The grounds of appeal against conviction are (1) that the
evidence of PC Lynch and WPC Clark about the rings and the
conclusions of the Woods-Bowie Report constitute fresh and significant evidence
that has a vital bearing on the jury's verdict; and (2) that the Crown failed
to disclose to the defence before or during the trial materially significant
information provided by PC Lynch when he was precognosced by Mr Burns, and
that in consequence of that failure the new evidence in the precognition of WPC
Clark dated 2 March 2006 and the evidence of the Woods-Bowie report did not
become known to the defence before the trial.
In both grounds the appellant contends that there was a miscarriage of
justice.
Ground of appeal 1 - fresh evidence
The
statutory framework
[131] Sections 106(3) and 106(3A) of the 1995 Act
regulate fresh evidence appeals in the context of the single ground of appeal
that the 1995 Act allows, namely miscarriage of justice. Before new evidence can be considered by the
court, the appellant must furnish a reasonable explanation why it was not heard
at the trial. Unless there is a reasonable
explanation, the appeal cannot succeed, no matter how significant the proposed
new evidence may be (Campbell v HM Adv, 1998 JC 130, at pp 150, 176-178;
Barr v HM Adv, 1999 SCCR 13, at pp 17-18).
[132] If
the appellant provides such an explanation, the onus being on him, the court
must consider whether the new evidence would have been capable of being
regarded by a reasonable jury as credible and reliable. If the court is so satisfied, it must next
consider the cogency of the new evidence.
The new evidence must be
important evidence of such a kind and quality that it was likely to have been
found by a reasonable jury, under proper directions, to have been of material
assistance in their consideration of a critical issue that emerged at the trial
(Cameron v HM Adv, 1991 JC 251, Lord Justice General Emslie at p 262).
[133] At that stage the appeal can succeed only if the court is satisfied that if the
jury had heard the new evidence, it would have been bound to acquit; or that
the new evidence is of such significance that it is reasonable to conclude that
the verdict of the jury, reached in ignorance of its existence, must be
regarded as a miscarriage of justice (s 103(3)(a); Cameron v HM Adv, supra,
at pp 261-262). Since there is a danger that fresh evidence
may assume greater strength than it would have had if it had been led at the
trial (Gallacher v HMA 1951 JC 38, at p 47), it is
essential that this court should assess it in the context of the whole evidence
led at the trial (Al Megrahi v HM Adv, 2002 JC 99, at para [249]; cf Lyon v HM Adv, 2003 SCCR 692).
[134] These
principles are based, in my view, on the assumption that the proposed new
evidence, if available to the defence at the trial, would in fact have been
led. In this case I am not persuaded
that we should make that assumption; but if we are required to make it for the
purposees of section 106, it follows, in my view, that we must consider that
evidence in its entirety, taking into account those elements that were
unfavourable as well as those that were favourable to the appellant.
Submissions
of counsel
[135] Counsel for the appellant
submitted that, through no fault of the advocate depute, the case went to the
jury on a false basis. The advocate
depute told the jury that the finding of the rings in the house on 7 May was
the cornerstone of the Crown case. His
case was based on the theory that the deceased was wearing the rings when she
was killed and that the appellant took them from her body after it was removed
from the house. The trial judge's
directions were given in that context.
The verdict implied that the jury accepted the cornerstone of the Crown
case. Any evidence that cast doubt on
the Crown theory was bound to be material.
The Woods-Bowie Report acknowledged the possibility that the rings were
on the dowel when the video was made. To
that extent, it supported the appellant.
The evidence of PC Lynch and WPC Clark undermined the Crown's
position. It suggested that the rings
were still in the house after the disappearance. There was no reason to doubt its credibility
and reliability. The defence could not
reasonably have been aware of it at the time of the trial. The court should treat the trial evidence as
frozen, add to it the new evidence and assess what impact the new evidence
would have had if it had been heard by the jury (Smith v HM Adv, 2001 SCCR
143, at para [23]). The advocate depute
might well have presented his case differently if he had known of the new
evidence; but that was true also of counsel for the defence. The new evidence was of such significance
that the verdict must be regarded as a miscarriage of justice.
[136] The advocate depute submitted that this
ground failed because the appellant has failed to provide a reasonable
explanation for the failure of the defence to have the video and the
photographs analysed before the trial, or for the failure of the appellant's
former solicitors to precognosce PC Lynch and WPC Clark on the point. The significance that the Crown put on all of
this evidence had been obvious. In any
event, the Woods-Bowie Report was inconclusive.
The evidence of PC Lynch and WPC Clark could not be considered to be
credible and reliable. If the question
should arise, none of the new evidence was of such significance or cogency that
its absence from the trial could be said to have caused a miscarriage of
justice.
The conclusions of the
Woods-Bowie Report
[137] In my opinion, the first ground of appeal fails in relation to
this report. The report analyses the
video and the still photographs that were productions at the trial. It raises a question of fact that was not
canvassed at the trial, namely whether the fact that the rings could not be
seen on these productions necessarily excluded the possibility that they were
there. The indictment gave notice of the
allegation that on 7 May 1998 the
appellant put the rings on the dowel. He
denied that. The video and the stills
were significant evidence against him.
It was open to his then solicitors to have these productions
scientifically analysed in an exercise similar to that of Miss Woods and Dr
Bowie. That was a line of enquiry
suggested by the terms of the charge and by the appellant's response to it (cf McLeod v HMA, 1998 SCCR 77, at p 102).
In my view, the appellant has failed to give a reasonable explanation
for the failure of the defence to lead evidence of this kind at the trial. If I am right, we cannot take that evidence
into account.
[138] If I am wrong in this conclusion, then, since the Crown accepts
that the evidence of the Woods-Bowie Report can be considered to be credible
and reliable, the only remaining question is whether the report is of any
material significance. In my view, it is
not. The findings of the report are
inconclusive. The authors do not claim
that the rings are visible on the videos and the stills. On the contrary, they say that they are
not. They conclude only that there is a
possibility that the rings could have been on the dowel if they were pushed so
far up the dowel as to be invisible from the camera's viewpoint. That inconclusive finding has to be assessed
in the context of the evidence of the
family witnesses that the rings were not in the bathroom between 30 April and 7
May, and by Mrs McInnes's evidence of the finding of them. The finding of the report is also
inconsistent with the position in which PC Lynch and Mrs McInnes said that they
saw them. In my opinion, the conclusion
of the report is not of such significance that we should hold that a verdict
returned in ignorance of it must be regarded as a miscarriage of justice.
The
evidence of PC Lynch and WPC Clark
[139] In my opinion, the appellant has failed to
provide a reasonable explanation why this evidence was not led at the
trial. In general, it is not a reasonable explanation
merely to say that the appellant was not aware of the existence of the proposed
witness or was not aware that that witness could give evidence of any
significance. Section 106 requires the
court to take a broad and flexible approach, looking to the circumstances of
the case, and to consider what steps the appellant could reasonably be expected
to have taken in the light of what was known at the time. The court could hold that a reasonable
explanation was made out if at the time of the trial the appellant had no good
reason to think that the witness existed or that he could give the evidence in
question. Much may depend on the steps
that the appellant can reasonably be expected to have taken in the light of
what was known at the time (Campbell v HM Adv, supra, at p 147A-C). In
Campbell v
HM Adv (supra), Lord Sutherland
commented that "reasonable" in
the context of these provisions could not be equiparated with "rational." He expressed the
view obiter that the fact that
defence solicitors failed to precognosce a witness on the Crown list, and were
therefore unaware of the existence of evidence favourable to the defence, was a
rational explanation, but could not in general be regarded as a reasonable one (ibid, at p 176F-I; cf Barr v HM Adv, supra). There may of course be
exceptional situations where failure to precognosce will not rule out the
possibility of there being a reasonable explanation; for example, where it is
clear that the witness in question would have refused to say anything to the
precognoscer (Campbell v HM Adv, supra, Lord Sutherland at p 180A-C).
[140] Since
a person accused on indictment receives the Crown list of witnesses, he
and his advisers have the opportunity to investigate the case, to precognosce
potential witnesses for the Crown and for the defence, and then to decide in
general how the case can best be presented and in particular what witnesses should
be led (Mills v HM Adv, 1999 SCCR 202). A
significant degree of diligence is expected of defence solicitors in this
aspect of the case (Barr v HM Adv, supra, at pp 17F-18G). When
a defence solicitor has identified the essential allegations in an indictment,
his first priority is to find out which witnesses on the Crown list can speak
to each allegation and, by way of precognition, to find out what each will
say.
[141] The mere inclusion of a witness on the Crown
list does not necessarily exclude the possibility that evidence from that
witness could be treated as new evidence in an appeal. But in this case, in my view, the inclusion
of PC Lynch and WPC Clark on the Crown list did have that effect.
[142] As is common practice, Beltrami and Co arranged for several
witnesses, including PC Lynch and WPC Clark, to be precognosced by precognition
agents. The indictment gave notice of
the allegations that the appellant had removed a sum of money from the house on
28 April and had placed the rings in the house on 7 May. Since the appellant denied these allegations
altogether, it was relevant to his defence to know inter alia whether the rings were in the house before 7 May. One obvious line of enquiry was to
precognosce the police officers who were in the house in the 24 hours after the
disappearance. In my view, it was
obvious from the indictment, and particularly from the charge of attempting to
pervert the course of justice, that the officers who searched the house on the
night of the disappearance were priority witnesses.
[143] If PC Lynch and WPC Clark were formally precognosced on behalf of
the appellant, which is open to doubt, it follows that the essential factual
issue to which the proposed new evidence relates was not taken up with
them. We have not been told what precise
instructions were given to the precognition agent. It may be that he was simply given a general
instruction to precognosce certain specified Crown witnesses. It may be that he did not fully appreciate
the significance of heads (ii) and (iii) of the conspiracy charge. These, I think, are risks inherent in the
employment of precognition agents.
[144] The failure of the defence to precognosce these officers
thoroughly, if at all, is unfortunate because what was discovered by Mr Burns
in 2002 and by Miss McLaughlin in 2006 was there to be discovered by the
defence. We have been given no firm
explanation from the appellant's trial solicitors why these issues were not
pursued with those witnesses. But it is
plain that the defence were not deprived of any opportunity to precognosce
these officers thoroughly about the factual allegations in the indictment. This too was a line of enquiry that was
suggested by the terms of the indictment (McLeod
v HM Adv, supra, at p 102). In my
opinion, this evidence cannot justify an appeal under section 106 (Burzala v HM Adv 2007 HCJAC 67, at para [49]; Barr v HM Adv, supra, at p 18A-C).
[145] On the view that I have taken, the question of the credibility
and reliability of these witnesses does not arise. I should say, however, that we have not been
given a proper basis on which we could answer that question in favour of the
appellant. There can be exceptional
cases under section 106 where the new evidence is such that the court need not
hear witnesses before deciding on its effect.
I have in mind cases such as McPhee
v HM Adv (2006 HCJAC 137), where
the documents recovered proved conclusively that the senior officer in charge
of the investigation had given untrue evidence at the trial on a crucial
issue.
[146] But, in general, where a fresh evidence appeal relates to
contentious issues of fact, the court, if it reaches that stage, must hear
evidence before it can decide whether the new evidence was likely to have been
accepted by the jury as credible and reliable.
In this way, in Johnston and
Allison v HM Adv (2006 SCCR 236),
for example, we formed an adverse view of the credibility of certain police
witnesses, and a favourable view of the new defence witnesses (cf also Gilmour v HM Adv, 2007 SCCR 417; Hall v HM Adv, 1999 SCCR 130).
[147] Counsel for the appellant did not lead either PC Lynch or WPC
Clark. All the information available to
us suggests to me that they were honest and conscientious officers. PC Lynch was treated shamefully by officers
of Strathclyde Police. I do not consider
that if either he or WPC Clark had given evidence at the trial the jury would
have been bound to reject it. But there
are serious questions about the reliability of both officers'
recollections. Both of them failed to
record the sighting of the rings in their notebooks or to mention it in their
police statements. If PC Lynch and WPC
Clark were actually precognosced, their silence on the subject of the rings
simply casts further doubt on the reliability of their recollections. PC Lynch's first mention of the rings came
four years after the event. WPC Clark
did not record the sighting of the rings in her notes of the search on 29
April; nor did she mention the rings at the briefing at which the question of
the rings was specifically raised. Her
first undisputed mention of them came nearly eight years after the event, and
then only when the point was specifically put to her. There are also inconsistencies in both
officers' accounts in the several statements and precognitions that they
gave. In the absence of their evidence
on oath in this appeal, I can say only that I am not persuaded that the
recollections of either of them on the point could be regarded as
reliable.
[148] In any event, I consider that this ground of appeal fails even if
we take the evidence of both officers at its best for the defence. On the assumption that the jury could have
held it proved that at the time of the police searches on 28 April and in the
early hours of 29 April 1998, both officers saw the deceased's rings in the
bathroom, I shall consider what significance the proposed evidence would have
if it qualified as new evidence under section 106.
[149] Counsel for the appellant made his point concisely in the
following way. The advocate depute
described the finding of the rings on 7 May as the cornerstone of the Crown
case. He suggested that the appellant
took the rings from the body. The trial
judge directed the jury that if they did not accept that the appellant placed
the rings in the bathroom on that date, they could not convict. Apart from the evidence of the Woods-Bowie
report, there was now eye-witness evidence of PC Lynch and WPC Clark that the
rings were in the house in the early hours of 29 April. That was incompatible with the cornerstone of
the Crown case. It could not be said
that if the jury had heard this evidence, they would have convicted anyhow.
[150] I think that this argument is based on an incomplete view of the
case. The approach of counsel for the
appellant was to treat the Crown's presentation at the trial as being fixed for
all time, so to speak, and then to assess what impact the new evidence would
have had upon it. I do not accept that
approach. It requires us to consider the
significance of the new evidence on the unreal assumption that if it had been
led, the advocate depute would have presented the jury with the same theory of
the facts. In my opinion, if either PC
Lynch or WPC Clark had given evidence about the presence of the rings in the
house on the night of 28-29 April, the advocate depute would not have committed
himself to his theory about the cornerstone of the Crown case, and the trial
judge would not have directed the jury as he did.
[151] Counsel for the appellant relied on a dictum of Lord Justice General Rodger in Smith v HM Adv (supra) that in an appeal of this kind
"it will often - and indeed perhaps usually - be appropriate" to consider the
new evidence but take the other evidence frozen into the form in which it
emerged at the trial (at para [23]).
That is not a universal principle, as Smith v HM Adv itself
shows. In that case the new agreed
evidence destroyed the evidence given at the trial as to the cause of
death. Since the latter evidence had
influenced the entire course of the trial, the new evidence could not be
regarded as being merely additional to the evidence led at the trial.
[152] In my view, the correct way to deal with this ground of appeal,
in the unusual circumstances of this case, is to consider the new evidence in
the context of the whole evidence led at the trial in order to see what, if
any, relevance the new evidence has to the crucial issues and to judge whether
the absence of it at the trial requires us to set aside the verdict. To put the proposed new evidence in context,
I think it best to analyse the evidence at the trial in three stages; namely
(1) the circumstantial case alone; (2) the evidence of Dick and of the
appellant, and (3) the evidence about the finding of the rings on 7 May.
The
circumstantial case
[153] The appellant had powerful motives for killing the deceased,
namely the cost to him of a divorce and his jealousy arising from his suspicion
that she was having an affair. As he
admitted, he was the only person who stood to gain from her death.
[154] The appellant had also
shown previous malice and ill-will towards her.
There was evidence that he had assaulted her on 21 March 1998. There was
evidence that could be held to link him with the Granada fire on 4 April 1998. During the
weekend before her disappearance, according to the hearsay related by Marion
Taylor, he told the deceased that if she was not going to live with him, "she
wouldn't be living with anyone."
[155] There was evidence of preparatory acts by the appellant. It was open to the jury to hold that he
contrived to support an alibi by arranging to telephone Hazel Walker at the
critical time on the morning of the disappearance; and that on the night of 27
April, about 12 hours before the deceased disappeared, he was involved in the
clandestine and urgent purchase of a car with a boot and in the payment of £50
to Ritchie to keep quiet.
[156] There was also the evidence of the events
and circumstances immediately surrounding the disappearance. To the knowledge of the appellant, Tuesday
was the only weekday on which the deceased was not at college and would be at
home alone in the morning after the children left for school. The time of the disappearance suggested that
whoever was responsible knew of her movements.
There was evidence from Michelle Scott that the deceased normally kept
her front door locked. The appellant was
in a position to provide the killer with a key.
The absence of any signs of disturbance pointed to a premeditated
killing rather than a random attack.
[157] The appellant's actings on the morning itself were consistent
with his carrying out a planned alibi.
When he telephoned Hazel Walker he made a point of telling her exactly
where he was. He had never before telephoned
her at a pre-arranged time and never telephoned her thereafter. His telephone call to his office after that
could be interpreted in the same way.
[158] The jury were also entitled to take into account evidence of the
demeanour and the statements of the appellant immediately after the
disappearance (Campbell v HM Adv, supra, at p 137F). They could draw an adverse inference from
evidence that when the deceased disappeared, the appellant failed to notify any
of her family and that he seemed unconcerned when he came to the house. There was evidence that the deceased did not
know where the appellant's money was concealed; that the appellant told PC Hall
on the evening of 28 April that there should be two stashes of money in the
house, neither of which was found by the police; and that the vent in the
bedroom had been moved. Form that, the
jury were entitled to infer that the appellant was trying to create the false
impression that the deceased had run off with his money. That inference was supported by his remarks
to Alexander Munro and to Carol Gillies, on the two successive days, that the
deceased had taken his money. That was
significant since he accepted that only he knew where the money was hidden.
[159] Hector McInnes's evidence that on 7 May 1998 the appellant
remarked to him that the children would eventually forget their mother
suggested that, when the deceased was thought to be a missing person, and when
the appellant ostensibly believed that she would return, he knew that she was
dead (Greenshields v HMA, 1989 SCCR 637). That remark was also incompatible with his
statements, on the Frontline Scotland
programme and in his police statement of June 2001, that he thought that she
was still alive.
[160] The jury were also entitled to take into account the appellant's
conflicting statements to the police on 15 and 16 November about his movements
on the evening of 27 April when the Fiesta was bought (Bovill v HM Adv, 2003
SCCR 182, at para 24).
[161] I conclude that the circumstantial evidence alone was sufficient
to entitle the jury to convict. Parts of
it were capable of more than one interpretation; and in relation to those parts
it was for the jury to decide which interpretation they preferred (Al-Megrahi v HM Adv, 2002 SCCR 509, at paras [32]-[36]; Fox v HM Adv, 1998 JC 94;
Hume, ii, 382-4). But, apart from being
sufficient in law, the circumstantial case was also powerful in its
totality. It illustrates the probative
power of circumstantial evidence when it emerges "by undesigned coincidence" (R v
Taylor, (1928) 21
Cr App R 20. Hewart LCJ at p 21) from a multiplicity of independent sources (cf
Dickson, Evidence, 3rd ed, para 95;
Wills, Circumstantial Evidence, 7th
ed, chap 2).
The
evidence of Dick and of the appellant
[162] Dick confirmed the appellant's likely motives; but he
incriminated the appellant more directly.
He gave evidence of premeditation.
He described how, two days before the disappearance, the appellant was
thinking about people who disappeared without trace, about the low rate of
convictions in murder cases where no body was found and about the difficulty of
identifying a body from a small bone sample.
Dick then described how, on the eve of the disappearance, the appellant
was urgently seeking a car with a boot; how he drove it off late that night;
how he later told Dick that there had been a bit of a scrape; and how he
returned the car to the farm with, inside it, a coat similar to that identified
by Michelle Scott as being the deceased's, and a bundle of girl's clothing that
Dick thought was Natalie's. Dick also
spoke to several detailed confessions made to him by the appellant describing
his part in the murder and his destruction of the body; the appellant's signal
and whispered words to him at the Taylors'
house; and later the strangulation gesture that he made during one of their
conversations about the death of the deceased.
[163] The defence had ample material for an attack on Dick's
credibility. He had given several
conflicting accounts of events over the years to the police. He had been convicted of attempting to
pervert the course of justice in relation to the Fiesta car. He had been one of the co-accused. In his speech, the advocate depute identified
a number of respects in which the evidence of Dick was supported by the
circumstantial evidence in the case. The
trial judge directed the jury in detail on the assessment of Dick's evidence
(Charge, pp 73-90). In my view, the trial
judge was right to direct the jury that the issues of credibility affecting
Dick were for them to resolve.
[164] The evidence of Dick, if the jury believed it, transformed the
Crown case. It made it more compelling
by providing directly incriminating evidence.
Conversely, the circumstantial evidence, and not least the evidence of
Ritchie, assisted the Crown in supporting Dick's credibility in his evidence
against the appellant (cf Fox v HM Adv, 1998 JC 94, Lord Justice
General Rodger at p 100E-G).
[165] To these views of the evidence we can
add the appellant's own evidence, which contained the damaging admission in
cross-examination that, if the deceased did not know about the hiding place
behind the vent, only he could have told the killer about it.
The evidence about 7
May
[166] Leaving aside
the speech for the Crown and the trial judge's directions, I consider that, on
my interpretation of the evidence so far, 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 to the extent that that
question was relevant, their conclusions on it depended on how they resolved
the conflict on the point between the appellant and the family witnesses. If they believed the family witnesses, they
could conclude that, no matter how the rings ceased to be in the house, the
appellant brought them back to it on 7 May and furtively left them in the
bathroom. On that view, what the
appellant did on 7 May was a further incriminating circumstance.
[167] On that view of
the evidence at the trial and, I repeat, leaving aside the speech for the Crown and
the trial judge's directions, I cannot see how the proposed new evidence could
be of such significance as to require us to set the verdict aside. The question then becomes whether the
advocate depute's speech and the trial judge's direction on the point require
us to take a different view.
The effect
of the trial judge's directions
[168] The advocate depute gave a clear exposition of the circumstantial
case. He submitted that the
circumstantial case alone was sufficient for a conviction (p 21). He suggested that Dick's evidence was
credible and reliable, whatever Dick's previous lies, because it was supported
by other evidence. That presentation was
logical and persuasive. If he had left
it at that, the jury would have been given cogent reasons to convict.
[169] But he then returned to the subject of the rings and committed
himself to the theory that the appellant knew where the body was hidden and
took the rings from it. Then he insisted
that the evidence of the finding of the rings was the cornerstone of his
case.
[170] In my opinion, the theory that the appellant took the rings from
the body was a speculation; but of course the advocate depute had no reason to
think that the rings could have been in the house at any time after the
disappearance. His presentation on this
point is understandable in the light of his state of knowledge. He may also have been anxious that his
presentation of the case should not depend crucially on the evidence of Dick,
whose credibility was open to doubt.
[171] In my view, the effect of the whole evidence was that, from the
Crown's point of view, it hardly mattered whether the rings were taken from the
house or were taken from the deceased's body.
What mattered was that there was strong evidence that the rings were not
in the house from 30 April, when the family moved in, until lunchtime on 7
May. If the jury accepted that evidence
and if they accepted that the appellant brought the rings to the house on 7
May, it was open to them to consider why, if he came by the rings innocently,
he did not give them to a member of the family, or at least tell the family
that he had them. They were entitled to
conclude that, at the time of an intense police enquiry, the furtive manner in
which he left these important items of real evidence in the bathroom indicated
that he had a sinister reason of some kind for doing so.
[172] Whatever the advocate depute's reasons were for presenting the
case as he did, his presentation led the trial judge to direct the jury that
unless they held that the appellant placed the rings in the bathroom on 7 May,
they could not convict. That raises the
question whether that direction was sound.
[173] To assess the significance and the consequences of the direction,
we have to consider it in the context of the whole charge. The trial judge's summary of the
circumstantial evidence implied that, on its own, the circumstantial case
raised a question of credibility rather than of sufficiency. The trial judge summarised the whole evidence
and left it to the jury to decide what parts of that evidence they accepted and
what inferences they were prepared to draw from it. In particular, he directed them that even
without the evidence of Dick, they were entitled to convict.
[174] But the trial judge seems to have altered course when he came to
the subject of the rings. His direction
that they could convict only if they accepted that the appellant placed the
rings in the bathroom on 7 May was based on the idea that, unless they did so,
they could not hold that he instigated or agreed with another or others that
the deceased should be killed. I cannot
follow the logic of that. In my opinion,
this was a misdirection.
[175] The trial judge said that he had reached the view that he should
give the direction "having regard to the manner in which the advocate depute
presented the Crown case ... " He referred
particularly to the advocate depute's remark that the evidence of the rings was
the cornerstone of the Crown case. In my
opinion, it was for the trial judge to direct the jury on the question of
sufficiency according to his own judgment of the evidence. To my mind, the appropriate direction would
have been that the circumstantial evidence was sufficient to entitle the jury
to convict (cf Leandro v HM Adv, 1994 SCCR 703); that the
evidence of Dick that directly incriminated the appellant, so far as they
accepted any of it, added strength to the circumstantial case; and that, if
they believed that the appellant left the rings in the bathroom, they were
entitled to treat that as a further incriminating circumstance. On that view, the whereabouts of the rings on
28-29 April was not a critical
issue.
[176] But the misdirection
was limited in its scope. The trial
judge did not direct the jury that they could not convict unless they held it
proved that the appellant took the rings from the body, or unless they held
that the rings were not in the house on the night of 28-29 April. All that he said was that they could not
convict unless they found that the appellant left them in the house on 7 May. That question did not depend on proof or
disproof of the suggestion that the rings were in the house in the early hours
of 29 April.
[177] Nevertheless, it is beyond argument that if, as I think, the
evidence of the return of the rings was not crucial to the Crown case, the
effect of the trial judge's direction was to make it so. In the result, the evidence about the events
of 7 May took on a significance that it need not have had. But that has had an important result that
helps us in our consideration of this ground of appeal, namely that, in the
light of the misdirection, we can conclude with certainty that the jury found
that the appellant put the rings in the bathroom that day.
[178] That being so, the central question is whether a verdict based on
that finding is insupportable in the light of the new evidence; or, in other
words, whether the proposed evidence of PC Lynch and WPC Clark requires us to
conclude that the verdict constituted a miscarriage of justice.
[179] In discussing this question, I shall make the assumption, which
underlies the submission for the appellant, that if the evidence of PC Lynch
and WPC Clark had been available to the defence, it would have been led. I am not persuaded that that is so. Since both officers had failed to record any
sighting of the rings at the time, either in their police notebooks or in their
police statements, and since their various statements showed inconsistencies,
it is doubtful, to say the least, whether counsel for the defence would have
risked leading either of them.
[180] But the defence faced other more specific problems relating to PC
Lynch. If PC Lynch had been led, he
would have been open to examination about his visit with DS Robertson to the Taylors' house at 3 am on 29 April. That possibility carried considerable menace
for the defence. If PC Lynch had been
fully precognosced about that visit, according to his statement to Miss McLaughlin,
he would have described his suspicions about the appellant's responses and
demeanour. In that event, it is unlikely
that counsel would have risked leading him and undoing what he had achieved on
that subject in cross-examination of PC Hall.
[181] However, if we are required to assume for the purpose of section
106 that the proposed new evidence would have been led, I consider that the
absence of it at the trial did not result in a miscarriage of justice. I have four reasons. The first is that it is not irreconcilable
with the evidence at the trial. For the
purposes of this analysis, I shall assume that in the evening of 28 April and
in the early hours of 29 April the rings were in the house. This is quite possible. There was evidence that the deceased took off
her rings each night. It appears that
she was doing housework when she was disturbed.
She may well have been killed before she had put her rings on
again. The evidence of the searches made
on 29 April, supported by the video, suggested that the rings were not then in
the house. There was compelling evidence
from the family members that the rings were not in the house from 30 April
until lunchtime on 7 May. It is quite
possible that the appellant removed the rings from the house on 29 April
sometime between the assumed sightings by PC Lynch and WPC Clark and the making
of the video. The house was not at that
time a crime scene. It was
unoccupied. The appellant had a
key. According to Dick, the appellant
made the highly 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 new evidence would therefore
have been double-edged. In my view, it
would have done the defence more harm than good.
[182] The evidence of Catherine McInnes and the other family members
proved that the appellant put the rings back in the house on 7 May. That is the key finding and the evidence of
PC Lynch and WPC Clark is not inconsistent with it.
[183] My second reason for reaching this view is that, even at its
highest, the evidence of these officers had no material significance in
comparison with the weight of the evidence of the family members and of the
whole circumstantial background to the disappearance.
[184] My third reason is that if the proposed new evidence had been led
and the jury had accepted it, it would have been open to them to relate that to
the evidence of the searches on 29 April, when no rings were seen; the evidence
of the family witnesses that there were no rings in the house between 30 April
and 7 May; and the evidence of the
finding of the rings on 7 May. That
would have supported the credibility of Dick's evidence that the appellant told
him that he had been to the house on the night of 28-29 April to tidy up and
clear away evidence. It would also have
supported Dick's credibility more generally.
[185] My fourth reason is that, in directing the jury as he did, the
trial judge raised the Crown's hurdle higher than it should have been. In that sense, the misdirection was favourable
to the defence. A misdirection of that
kind cannot normally be regarded as having caused a miscarriage of justice (Kiely v HM Adv, 1998 SCCR 120, at p 126; cf Moir v HM Adv, 1993 SLT
1191, at p 1195E-G; Low v HM Adv, 1993 SCCR 493, at p 504E) and
in my opinion cannot be so regarded in this case.
[186] The question is not whether, in the circumstances complained of,
the absence of the proposed new evidence, and the related misdirection,
constituted a miscarriage of justice per
se; but whether the conviction of the appellant in those circumstances
constituted a miscarriage of justice. We
must decide that question in the context of the whole trial (cf Gonshaw v Bamber (No 2), 2004 SCCR 696, at para [11]). Taking that approach, I am in no doubt that
the proposed new evidence is not of such significance that the verdict of the
jury returned in ignorance of it must be regarded as a miscarriage of
justice.
Ground of appeal 2 - non-disclosure
The obligation of disclosure
[187] The Crown accepts that it now has a general duty to disclose
information that may undermine its case or assist the defence case (McLeod v HM Adv, supra). The process of disclosure has traditionally
involved the inclusion of witnesses on the Crown list whose evidence may be
favourable to the accused (McLeod v HM Adv, supra, at p 97).
[188] In Holland v HM Adv, in this court (2004 SCCR 452) and before the Judicial Committee
(2005 SC (PC) 3), the Crown conceded that it had an obligation to notify the
defence of a statement made on precognition by the witness Mrs Gilchrist, which
had a bearing on the reliability of her dock identification (Holland v HM Adv,2004 SCCR 452, at para [37]; 2005 SC (PC) 3, at para
[76]). In several appeals that we have
heard since the Judicial Committee decided Holland
v HM Adv (supra) and Sinclair v HM Adv (2005 SC (PC) 28), it has been
suggested that in consequence of these decisions the Crown now has an
all-embracing duty in every case to hand over every piece of information that
it holds. That is emphatically not the
case, in my opinion. The rights of the
defence are to precognosce any witness on the Crown list or any other possibly
relevant witness of whom they may become aware.
The defence are not entitled to assume a passive role and look to the
Crown to provide all of its information.
[189] The true principle, in my view, is that the Crown's duty of
disclosure does not extend to the provision of Crown precognitions to the
defence (cf Sinclair v HM Adv, supra, Lord Hope of Craighead at para [28]; Lord Rodger of
Earlsferry at para [49]; Downie v HM Adv, 1952 JC 37). A precognition cannot be equiparated with a
witness statement. It reflects the
evidence of the witness filtered through the mind of the precognoscer (Kerr v HM Adv, 1958 JC 14). In
consequence, it cannot be put to a witness as a being a prior inconsistent
statement (1995 Act, s 263(4); McSween v HM Adv, 2007 SCCR 320); it cannot
qualify as hearsay evidence (ibid, s 262(1)(b)), and it cannot be adopted
as a witness's evidence (s 260). There
is no general rule that the Crown is obliged at all times to provide
information to the defence about the contents of its precognitions; but there
may be circumstances in which the Crown becomes obliged to notify the defence
of information that it has discovered on precognition. That was accepted by the Crown in Gair v HM Adv, 2006 SCCR 419), rightly in my view.
The test in
an appeal based on non-disclosure
[190] For the purposes of this appeal I shall assume in the appellant's
favour that the Crown had a duty to disclose the information that came to light
in PC Lynch's Elgin precognition and that it did not discharge that duty merely
by including him on the Crown list. I
shall also assume in the appellant's favour that if the information in that
precognition had been disclosed to the defence, that in turn would have led to
the precognoscing of WPC Clark on the question of the rings and to an analysis
of the video such as was undertaken by Miss Woods and Dr Bowie.
[191] Counsel for the appellant at first submitted that an appeal based
on non-disclosure should be decided on the test that was formulated in Holland v HM Adv (supra), namely
whether it could not be said that the undisclosed evidence "might not possibly
have affected the jury's verdict" (ibid,
Lord Rodger of Earlsferry at paras [82]-[83]).
That raised the question whether in cases such as Holland and Sinclair, a conviction can be quashed on
a different criterion from that established in Cameron v HM Adv (supra).
[192] The advocate depute indicated that the Crown hopes that the
decisions of the Judicial Committee in Holland
v HM Adv (supra) and Sinclair v HM Adv (supra) will be reconsidered on some opportune occasion. In essence, the Crown submits that the
jurisdiction of the Judicial Committee to determine a devolution issue under
article 6 is different from the jurisdiction of this court to determine whether
there has been a miscarriage of justice under section 106 and that the correct interpretation
of these respective jurisdictions was set out by Lord Justice General Hope in Montgomery v HM Adv (2000 SCCR 1044, at pp 1107F-1108A).
[193] Since there
is no devolution issue in this appeal, I need not consider the points that the
advocate depute raised about the test applied in appeals to the Privy Council. This appeal falls to be dealt with solely as
an appeal under section 106 based on the contention that there has been a
miscarriage of justice. If I am right,
the test set by Lord Justice General Emslie in Cameron v HM Adv (supra), and followed in this court for
over 20 years, applies to both grounds of appeal.
[194] We raised this point with counsel for the appellant during his
reply to the advocate depute. He then said
that he was content not to base his submissions on Holland v HM Adv (supra) or Sinclair v HM Adv (supra), and to confine them to section 106 and the case law on
it. He also accepted the contention of
the advocate depute that if the court were to hold that there had been
non-disclosure, ground of appeal 2 fell to be treated as a new evidence appeal
and in effect as a duplication of ground 1.
[195] In my view, that is correct.
The appellant must establish that the Crown's non-disclosure caused
there to be a miscarriage of justice. To
do that he must demonstrate the importance and significance of the undisclosed
evidence to the crucial issues at the trial.
At that stage the non-disclosure ground becomes a new evidence ground
and falls to be decided on the general principles that I have outlined.
Did the
failure to disclose cause a miscarriage of justice?
[196] On the assumption for the
purposes of this discussion that there was a failure by the Crown to disclose
the evidence now founded on by the appellant, I consider, for the reasons set
out in my conclusions on ground of appeal 1, that the Crown's failure to
disclose that evidence did not result in a miscarriage of justice.
Gair v HM Adv (2006 SCCR 419)
[197] In the course of the discussion the question
arose whether in Gair v HM Adv (supra) this court imported the test in Holland v HM Adv (supra) in appeals based on non-disclosure. That case related to new evidence, obtained
under disclosure, in the form of police statements of, and personal information
relating to, a prosecution witness. Like
this case, it raised no devolution issue.
The court observed that the "possibility that the jury might have
reached a different verdict" if disclosure had been made, was real and
certainly could not be excluded (Gair v HM Adv, supra, at para [39]). That
echoed the words of Lord Rodger of Earlsferry in Holland v HM Adv (supra); but the court's conclusion on
the special facts of the case was that the undisclosed evidence would have
tended to undermine the credibility and reliability of the relevant witness's
evidence and thereby cast reasonable doubt on the Crown case, and that in the
circumstances the non-disclosure resulted in a miscarriage of justice (ibid, at para [40]). Although the court cited none of the
authorities in its discussion and conclusions (at paras [32]-[40]), it seems to
me that its overall conclusion was not inconsistent with the application of the
test in Cameron (supra).
XI Disposal
[198] I propose to your Lordships that we should refuse the appeal
against conviction and continue the appeal for consideration of the sentence.
|
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice Clerk
Lord Osborne
Lord Johnston
|
[2008] HCJAC26
Appeal No: XC229/03
OPINION OF LORD OSBORNE
in the Appeal by
APPEAL
by
NAT GORDON FRASER
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
For the Appellant: Gray QC, Miss
Livingston, advocate; John Macaulay
& Co., Glasgow
For the Crown: Beckett, QC,
A.D., Balfour; Crown Agent
6 May 2008
[199] I am grateful
to your Lordship in the chair for the narrative which you have compiled of the
factual background to this appeal and the contentions of the parties to
it. I agree that the appeal against
conviction should be determined in the manner proposed by your Lordship. I am also in agreement with the reasons which
you have given to justify that disposal.
However, in view of the importance of certain of the issues raised, it
is appropriate that I should now express my own opinion on those matters.
[200] As this appeal
was presented, senior counsel for the appellant relied exclusively upon grounds
of appeal 1 and 2. Ground 1 is, of
course, concerned with new evidence which was not heard at the trial, which is
dealt with in detail in that ground.
Ground 2 relates to the Crown's alleged failure to disclose to the
defence prior to, or at, the trial materially significant information provided
to the Crown by Police Constable Lynch at precognition on or around 3 July 2002
at the procurator fiscal's office, Elgin.
The appellant's contention is that, in respect of each of grounds of
appeal 1 and 2, there was a miscarriage of justice. Against that background, it is necessary to
consider separately the law relating to how evidence, which was not heard at
the trial, is to be handled and also the approach to be taken to the alleged
failure to disclose. It appears to me
that these are distinct matters, although, in due course, I shall consider the
relationship between the two grounds of appeal insisted upon.
[201] Turning then to
the approach to be taken to evidence not heard at the trial, the starting point
must be section 106(1) of the Criminal Procedure (Scotland) Act 1995, "the 1995
Act". That sub-section provides for the
right of any person convicted on indictment, with leave granted in accordance
with section 107 of the Act, to appeal against such a conviction in accordance
with Part VIII of the Act. Under section
106(3), it is provided:
"By an appeal under subsection (1)
above a person may bring under review of the High Court any alleged miscarriage
of justice, which may include such a miscarriage based on -
(a) subject
to subsections (3A) to (3D) below, the existence and
significance of evidence which was
not heard at the original proceedings;
... ".
Section 106(3A) provides:
"Evidence such as is mentioned in
subsection (3)(a) above may found an appeal only where there is a reasonable
explanation of why it was not so heard."
For the present purposes, it is not necessary to be concerned
with subsections (3B) to (3D).
[202] Section 118(1)
of the 1995 Act, which is concerned with the disposal of appeals, provides:
"The High Court may, subject to
subsection (4) below, dispose of an appeal against conviction by -
(a) affirming
the verdict of the trial court;
(b) setting
aside the verdict of the trial court and either quashing the
conviction or, subject to subsection
(2) below, substituting therefor an amended verdict of guilty; or
(c) setting
aside the verdict of the trial court and quashing the conviction
and granting authority to bring a new
prosecution in accordance with section 119 of this Act."
Those provisions alone furnish the power of this court to set
aside a verdict of a trial court and quash a conviction.
[203] It is a consequence
of the terms of section 106(3) that this court may quash a conviction under
solemn procedure only upon the basis that a "miscarriage of justice" has
occurred. While section 106(3)(a) and
(b) provide a limited definition of what may constitute a miscarriage of
justice, otherwise the concept is not defined by legislation. As I myself said in Harper v H.M. Advocate
2005 S.C.C.R. 245, in paragraph [33]:
"It is a consequence of these
provisions that, before this court can disturb a conviction in referral
proceedings such as these, it is necessary for us to identify the existence of
a miscarriage of justice. The statutory
provisions do not, of course, elaborate what may constitute a miscarriage of
justice, except in so far as subsection (3)(a) and (b) furnishes examples of
what may constitute a miscarriage. No
doubt it would be difficult or impossible and unwise to attempt a comprehensive
definition of the concept of miscarriage of justice; it is sufficient to say that it may cover a
wide variety of situations in which, for one reason or another, the court
concludes that justice has not been done, in the particular circumstances of a
case. However, having said that, it has
never been recognised by the court that some general concern, or unease, in relation
to a particular conviction, with no further specification, could be a basis
upon which a conviction could be disturbed."
[204] As regards
evidence not heard at the original proceedings, there is a long line of
authority dealing with the problems created by such evidence, as old as the
system of criminal appeals against convictions on indictments itself. For the present purposes, it is necessary to
have regard only to decisions taken under the legislation currently applicable,
or the immediately preceding legislation, which contained provisions which, so
far as material, used virtually identical language. The starting point must be Cameron v H.M. Advocate 1987 S.C.C.R. 608.
The important passage in the Opinion of the Court delivered by Lord
Justice General Emslie, is to be found at pages 618 to 619. There he said:
"In the case of an appeal in which it
is contended that there has been a miscarriage of justice on the basis of the
existence and significance of certain additional evidence which was not heard
at the trial, it is obvious that the court will be in a position to give effect
to that contention if it is satisfied that, if the original jury had heard the
new evidence, its significance was such that the jury would have been bound to
acquit. In such a case the appeal court
will quash the conviction. The problem
arises, however, where in an appeal based upon additional evidence within the
meaning of section 228(2) the court cannot be so satisfied. Bearing in mind the provisions of section
254(1)(c) there must nevertheless be circumstances in which a court which could
not be satisfied that, had the jury heard the additional evidence, they would
have been bound to acquit would be entitled to be satisfied that a miscarriage
of justice had occurred. What then are
these circumstances? In our opinion they
must be such that the court is persuaded that a verdict returned in ignorance
of that additional evidence must be regarded as a miscarriage of justice. Plainly, the court will require to be
satisfied not merely that the additional evidence was relevant for
consideration by the trial jury. Setting
aside the verdict of a jury is no light matter, and before the court can hold
that there has been a miscarriage of justice it will, under reference to the language
of section 228(2), require to be satisfied that the additional evidence is not
merely evidence which it would have been relevant to lead at the trial but that
it is relevant evidence of such significance that it will be reasonable to
conclude that the verdict of the jury, reached in ignorance of its existence,
must be regarded as a miscarriage of justice.
The decision on the issue of the significance of the additional evidence
is for the appeal court, and before the court will be in a position to decide
that the verdict of the jury represents a miscarriage of justice, it will
require to be satisfied that the additional evidence is important evidence, of
such a kind and quality that it was likely to have been found by a reasonable
jury under proper directions of material assistance in their consideration of a
critical issue which emerged at the trial.
This,
in our opinion, will require the Appeal Court to be persuaded in the first place
that the witnesses who have given the additional evidence were credible and
that the evidence given was plainly reliable or was at least capable of being
so regarded by a reasonable jury. It
will also, however, require the Appeal Court to be satisfied that the additional
evidence would have been likely to have had a material bearing upon, or a
material part to play in, a reasonable jury's determination of a criminal issue
at the trial. ...
To
summarise what we have said so far, in our opinion, if the court is to find
that a miscarriage of justice had occurred in an appeal such as this, it must
be satisfied that the additional evidence is at least capable of being
described as important and reliable evidence which would have been bound, or at
least likely, to have had a material bearing upon or a material part to play in
the jury's determination of a critical issue at the trial. If the court is so satisfied, it will be open
to it to hold that a conviction returned in ignorance of the existence of that
evidence represents a miscarriage of justice and it may exercise its power to
authorise the bringing of a new prosecution."
[205] Certain points
of importance emerge from this passage.
First, it is made plain that it is a matter for the appeal court to
evaluate and determine the significance of the additional evidence proffered. It will require to be satisfied that the
evidence is important and of such a kind that it was likely to have been found
by a reasonable jury of material assistance in their consideration of a
critical issue at the trial. Secondly,
it is apparent from the last paragraph of the passage quoted that, in
considering whether a miscarriage of justice has occurred, the court is to
approach the issue as one involving the exercise of a sound discretion. This is also evident from what was said by
the Lord Justice Clerk (Cullen) in Kidd v
H.M. Advocate 2000 S.C.C.R. 513, at
page 528 in paragraph [23]:
"In approaching this question, it is
important, in our view, that a number of matters should be borne in mind. First, the governing question in any appeal
based on additional evidence is whether the fact that it was not heard at the
trial represents a miscarriage of justice.
It is not a matter of whether the additional evidence is significant -
as if that represented some absolute quality - but whether it is of such significance as to lead to the
conclusion that a verdict returned in ignorance of it must be regarded as a
miscarriage of justice. Secondly, while
it is convenient to describe the judicial approach to determining whether
evidence is of that significance as a 'test', it should not be forgotten that
the sole test which is laid down by section 106(3)(a) is that of a miscarriage
of justice. It is clear, as a matter of
common sense that the 'significance' of evidence includes considerations as to
its relevance, materiality and importance.
It is also plain, as was pointed out by Lord Justice General Emslie,
that it includes its quality in point of credibility and reliability. None of these factors is determinative. What matters is the overall impression which
is created."
[206] The issue of
additional evidence was further considered in detail in Al Megrahi v H.M. Advocate
2002 SCCR 509. In paragraph [219] at
page 584 the Lord Justice General Cullen summarised the approach that would be
adopted by the Appeal Court in relation to fresh evidence in six
propositions. These were:
"(1) The
court may allow an appeal against conviction on any ground only if it is
satisfied that there has been a miscarriage of justice.
(2) In
an appeal based on the existence and significance of additional evidence not
heard at the trial, the court will quash the conviction if it is satisfied that
the original jury, if it had heard the new evidence, would have been bound to
acquit.
(3) Where
the court cannot be satisfied that the jury would have been bound to acquit, it
may nevertheless be satisfied that a miscarriage of justice has occurred.
(4) Since
setting aside the verdict of a jury is no light matter, before the court can
hold that there has been a miscarriage of justice it would require to be
satisfied that the additional evidence is not merely relevant but also of such
significance that it will be reasonable to conclude that the verdict of the
jury, reached in ignorance of its existence, must be regarded as a miscarriage
of justice.
(5) The
decision on the issue of the significance of the additional evidence is for the
appeal court, which will require to be satisfied that it is important and of
such a kind and quality that it was likely that a reasonable jury properly
directed would have found it of material assistance in its consideration of a
critical issue at the trial.
(6) The
appeal court will therefore require to be persuaded that the additional
evidence is
(a) capable
of being regarded as credible and reliable by a reasonable jury,
and
(b) likely
to have had a material bearing on, or a material part to play in,
the determination by such a jury of a
critical issue at the trial."
[207] At paragraph
[249] of the Opinion of the Court, the Lord Justice General considered the
issue of additional evidence in the context of a prosecution in which the Crown
case against the appellant before the trial court was a circumstantial
one. In view of the nature of the Crown
case against the appellant here, I consider that this observation is apt. There he said:
"The assessment of the significance
of the additional evidence must, therefore, in our view, be conducted in the
context of the whole circumstantial evidence laid before the trial court."
Thus, the approach which this court must take in the context
of ground of appeal 1 is that developed and settled in the foregoing
authorities.
[208] During the
course of the debate before us, some consideration was given to the issue of
whether the additional evidence founded upon would in fact have been led on
behalf of the appellant at the trial.
That consideration was focused upon the circumstance that police
constable Lynch had not only attended at No. 2 Smith Street, Elgin late in the
evening of 28 April 1998, the day of the disappearance of the now-deceased, but
that, at about 3.15 a.m. on 29 April 1998, he also visited the dwellinghouse
Tzaneene, Burnside Road, Lhanbryde, where the appellant had been staying since
his separation from her. Constable Lynch
made certain observations about the condition and attitude of the appellant at
that time, which were not favourable to him in the present context. In the course of the debate, it was
postulated that, standing that constable Lynch was in a position to give that
evidence, a tactical decision might well have been made by the appellant's
advisers not to lead him as a witness, even if they had been aware that he
would give evidence about the presence of the jewellery in the bathroom at 2
Smith Street on 28 April 1998.
[209] I do not find
that consideration of that issue is either relevant or useful. In a context in which an appellant advances a
ground of appeal in terms of section 106(3)(a) of the 1995 Act, in my opinion,
the court is bound to consider the significance of the evidence tendered upon
the premise that, had its existence been known to the appellant's advisers and
had it passed the test created by section 106(3A) of the Act, it would have
been set before the trial court. Unless
that assumption is made, consideration of the significance of the additional
evidence would be merely consideration of an hypothetical, or, at best, a
conjectural issue, which cannot have been the intention of the legislators, in
my opinion.
[210] A further issue
that emerged in the course of the debate before us related to the assumptions
that had to be made in connection with the evaluation of the significance of
additional evidence in a case such as this.
Senior counsel for the appellant contended that the significance of the
additional evidence had to be assessed in the context of the original trial, as
it had been conducted in the absence of that evidence. The practical focus of this submission was
the manner of presentation of the Crown case in the appellant's trial, in so
far as it was founded upon the assumption that the jewellery of the
now-deceased was not present in the bathroom of the house at 2 Smith
Street, Elgin on the occasion of the police search of the premises by police
constable Lynch and woman police constable Clark during the night of 28 to 29
April 1998. That jewellery, of course,
reappeared in the bathroom at 2 Smith Street in the afternoon of 7
May 1998. The use to which the trial Advocate depute
put these circumstances can be seen in the transcript of his speech to the jury
between pages 32 and 35. The contention
of senior counsel was that, if one looked at how the trial was actually
conducted, it was plain that the additional evidence, to the effect that the
jewellery was present in the bathroom on the occasion of the police search
during the night of 28 to 29 April 1998 was highly significant, since it
would have undermined a very prominent part of the Crown case, as presented.
[211] In my opinion,
this contention by senior counsel for the appellant is unsound and must be
rejected. In the conduct of any trial,
the manner of presentation of a case, whether for the Crown, or for the
defence, is a function of what evidence is actually laid before the court at
the time of the trial and how counsel perceive that their cases may best be presented
in the light of it. However, while the
assessment of the significance of the additional evidence not heard at the
trial must be conducted in the context of the whole evidence laid before the
trial court, in my opinion, the very existence of that additional evidence
inevitably means that a new evidential situation has been created, which is
bound to render the tactics actually adopted at the trial, in the light of the
earlier different evidential situation, obsolete and irrelevant.
[212] Coming to the
particulars of this case, it appears to me quite inconceivable that the trial
Advocate depute would have presented the Crown case in the same way that he
did, if he had had available to him the additional evidence that has now
emerged, particularly from police constable Lynch. In all these circumstances, in my opinion,
the function of this court in 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 am confirmed in this view by what was said
by Lord Justice General Cullen in paragraph [249] of the Opinion of the Court
in Al Megrahi v H.M. Advocate, which I have already quoted.
[213] In reaching the
conclusion that I have in relation to this aspect of the appeal, I should make
clear that I do not regard anything in Smith
v H.M. Advocate 2001 S.C.C.R. 143
as bearing on the matter. In that case,
it was a matter of concession by the Crown that the verdict of the jury had to
be set aside as constituting a miscarriage of justice, in the light of
additional evidence which had emerged subsequently to the trial. The controversial issue was whether the
verdict of the jury should simply be quashed, or whether the court should
substitute a verdict of culpable homicide in place of the verdict of
murder. In relation to such an issue as
that, the court held that the onus of satisfying the court that it should
substitute a different verdict of guilty from that recorded rested on the
Crown. In the particular circumstances
of the case, it was held that the additional evidence, had it been available,
would have influenced the way in which other witnesses had been examined and
cross-examined and played a role in the formulation of advice as to whether the
appellant should or should not give evidence.
In such a situation the court declined to substitute the alternative
verdict. It appears to me that that case
simply does not deal with the issue with which the court is concerned in the
present case.
[214] Since senior
counsel for the appellant, in the course of his submissions to us, relied upon
certain dicta of Lord Rodger of Earlsferry in Holland v H.M. Advocate
2005 SCCR 417 particularly at paragraphs [76] and [83], I consider it
necessary to comment on those submissions and what I consider to be the true
significance of those dicta. That case
was concerned with, among other matters, a failure by the Crown to perform
their duty of disclosure to the defence of a range of matters. One of those matters was that, in July 2003,
following the trial of the appellant in April 2002, the Crown informed counsel
for the appellant that they had found information in the Crown papers to the
effect that, when precognosced, a witness G had said that, after the
identification parade, a police officer had told her that she had "not done too
well". The Board held, among other
things, that, if the defence had been aware of what was said to G after the
identification parade, counsel would have deployed it in cross-examination, and
that it could not be said that, the Crown having deprived the defence of the
opportunity to advance this additional argument on the crucial issue of
identification, that might not possibly have affected the jury's verdict. In paragraph [76] of the Opinion of Lord
Rodger of Earlsferry, it is recorded that, both before the appeal court and
again before the Board, the Crown accepted that they had infringed the
appellant's Article 6(1) Convention right by failing to tell the defence about
the remark which the police officer had made to Miss G after the
identification parade. Against that
background, the issue for the Board was whether, taken as a whole, the
appellant's trial had been fair in terms of Article 6(1). It should also be noted that Lord Rodger
records that the appellant's rights under Article 6(1) had been breached by the
Crown's failure to disclose certain outstanding charges against a Mr. L and
Miss G, as well as by their failure to tell the defence what the police officer
had said to Miss G after the identification parade. In the appeal court, both the Lord Justice
Clerk and Lord Hamilton, as he then was, considered that, on any view, these
failures had not resulted in any substantial prejudice to the appellant. However, in paragraphs [80] to [82] Lord
Rodger undertook a detailed consideration of the implications of the Crown's
admitted failure to disclose the matters mentioned in paragraph [79]. In paragraph [82] he stated:
"Information about the outstanding
charges might therefore have played a useful part in the defence effort to
undermine the credibility of the Crown's principal witness on charge (2). At least, that possibility cannot be
excluded. One cannot tell, for sure,
what the effect of such cross-examination would have been. But, applying the test suggested by Lord
Justice General Clyde in Hogg v Clark at page 10, I cannot say that the
fact that counsel was unable to cross-examine in this way might not possibly
have affected the jury's (majority) verdict on charge (2) - and hence their
verdict on charge (3)."
In paragraph [83], he continued:
"Similarly, it is hard to make any
precise assessment of the significance of the Crown's failure to disclose the
remark made to Miss Gilchrist after the identification parade. One can be sure, however, that, if the
defence had been aware of it (counsel) would have deployed it in her
cross-examination of Miss Gilchrist.
It would have been one more reason for suggesting to her - and
ultimately to the jury - that her dock identification of the appellant was not
to be trusted. By withholding the
information the Crown deprived the defence of the opportunity to advance this
additional argument on the crucial issue of identification. Again, I cannot say that this might not
possibly have affected the jury's verdict".
In paragraph [85] of his Opinion Lord Rodger concludes:
"Taking all the relevant factors
together, I have reached the conclusion that in this case the failures of the
Lord Advocate's representatives to disclose information to the defence and the
advocate depute's reliance on the dock identifications of Miss Gilchrist and
Mr. Simpson were incompatible with the appellant's core Article 6 Convention
right since, taken together, they resulted in an unfair trial. Since a conviction resulting from an unfair
trial cannot stand, the appellant's conviction of charges (2) and (3) must be
quashed."
In those circumstances the Board exercised its powers under
Article 4(1)(a) of the Judicial Committee (Powers in Devolution Cases) Order
1999, the appeal was allowed, the verdict of the jury set aside and the
appellant's conviction on charges (2) and (3) on the indictment were quashed.
[215] As I understood
the submissions of senior counsel for the appellant, he contended that the
ignorance of the defence concerning the true position of Constable Lynch as
regards the jewellery might possibly have affected the jury's verdict in this
case. That submission was, of course,
founded directly on the observations of Lord Rodger of Earlsferry, which I have
quoted. It is my opinion, for reasons
which I shall explain, that that submission was misconceived.
[216] The
jurisdiction of the Privy Council in criminal appeals, of course, derives from
paragraph 13 of Schedule 6 and section 98 of the Scotland Act 1998, "the 1998
Act". Paragraph 13 provides for an
appeal against a determination of a devolution issue by a court of two or more
judges of the High Court of Justiciary, whether in the ordinary course of
proceedings, or on a reference under paragraph 9 of Schedule 6 to the Judicial
Committee, but only with leave of the court concerned or, failing such leave,
with special leave of the Judicial Committee.
The nature of the jurisdiction possessed by the Judicial Committee was
explained by Lord Hope of Craighead in Sinclair
v H.M. Advocate 2005 SCCR 446
at paragraph [37] of his Opinion, which is in these terms:
"As I said at the outset, section
57(2) of the Scotland Act 1998 provides that a member of the Scottish Executive
has no power to do any act so far as it is incompatible with any of the
Convention rights. As Lord Rodger of
Earlsferry observed in R v H.M. Advocate, page 68, paragraph [155],
it is not open to the court if this subsection is breached to assess what the
consequences of any particular violation of an individual's Convention rights
should be. Parliament has decided that
members of the Scottish Executive, including the Lord Advocate, should have no
power to do acts that are incompatible with any of the Convention rights. In this case that means that the Lord
Advocate, having proceeded to trial without having made Pamela Ritchie's
statements available to the defence as Article 6(1) requires, had no power to
continue with it and seek a conviction without making those statements
available to the defence as soon as it became apparent that she was changing
her evidence. But it could equally well
be said in this case that the failure to disclose the statements was a failure
to act by the Lord Advocate which was incompatible with the appellant's Article
6(1) Convention right: see paragraph
1(e) of Schedule 6 to the Scotland Act 1998.
The right to a fair trial is an absolute right which cannot be compromised: Stott v
Brown, Lord Bingham of Cornhill at
page 80E; see also page 94B. If the accused has not had a fair trial the
verdict cannot stand and the conviction must be quashed."
Having reached that conclusion, Lord Hope of Craighead
considered that it would be appropriate in that case for the Board, under
Article 4(1)(a) of the Judicial Committee (Powers in Devolution Cases) Order
1999, S.I. 1999/1320, to exercise the powers which had been given to the High
Court of Justiciary by section 118 of the 1995 Act by "setting aside the
verdict of the trial court and quashing the conviction on the ground that there
was a miscarriage of justice".
[217] In Spiers v Ruddy 2008 SLT 39, the Privy Council departed from its own
decision in R v H.M. Advocate 2003 SC (PC) 21, in the context of a referral
under paragraph 33 of Schedule 6 to the Scotland Act 1998, which was concerned
with the implications of a breach of the "reasonable time" requirement of
Article 6(1) of the Convention. Thus the
question arises of whether the decision in Spiers
v Ruddy has in any way undermined
the validity of the observations of Lord Hope of Craighead that I have
quoted. However, in paragraphs [15] and
[21] of the report, it was made clear that the decision in that regard was not
related to the other requirements of Article 6(1). Accordingly, in my view, the observation that
I have quoted, continue to possess force.
In any event Sinclair v H.M. Advocate was not a case concerned
with the "reasonable time" requirement of the Article.
[218] As I understand
them, the observations of Lord Hope of Craighead are to the effect that, in the
event of conduct by the Lord Advocate, which is in breach of the rights of the
defence under Article 6(1) of the Convention, from the moment of the breach,
the Lord Advocate is deprived of the power to continue with the prosecution and
to seek a conviction in it, by virtue of the provisions of section 57(2) of the
Scotland Act 1998. The assessment of
whether that state of affairs has come into being is, of course, ultimately the
responsibility of the Privy Council. If
the Privy Council conclude that such a state of affairs has come into being,
the provisions of Article 4 of the Judicial Committee (Powers in Devolution
Cases) Order 1999 may be used by them.
Article 4 of that Order provides in paragraph (1)(a):
"The Judicial Committee shall, in
relation to devolution proceedings, have all the powers, rights, privileges and
authority as the appropriate superior court; ... ".
The "appropriate superior court" is defined in paragraph
(2)(b) as:
"In the case of an appeal ... from a
court in Scotland ... (ii) where the appeal ... is in
criminal proceedings, the High Court of Justiciary".
Section 118(1) of the 1995 Act, already quoted, sets out the
powers of the High Court of Justiciary in disposing of an appeal against
conviction. It is to be noted that
section 118 of the 1995 Act does not itself refer to a "miscarriage of
justice"; it simply sets out certain
powers in relation to convictions. Thus,
in my opinion, it is evident from this statutory structure that the Judicial
Committee does not require to be concerned with the concept of a "miscarriage
of justice" in determining devolution issue appeals under paragraph 13 of
Schedule 6 of the 1998 Act. If, in such
proceedings, it concludes that there has been a breach of Article 6(1) of the
Convention by virtue of the conduct of the Lord Advocate, then, on the
reasoning of Lord Hope of Craighead in Sinclair
v H.M. Advocate, a conviction has
been recorded in circumstances in which the prosecutor had no power to seek
it. Such a conviction must surely be
regarded simply as a nullity, as opposed to a miscarriage of justice, a concept
which, it respectfully seems to me, implies a validly conducted prosecution,
but one in which justice has not been done, in the particular circumstances of
the case.
[219] In any event,
in my opinion, the relationship between the concepts of a miscarriage of
justice, recognised in section 106(3) of the 1995 Act and an unfair trial in
terms of Article 6(1) of the Convention is not straightforward. Plainly they are not co-extensive. An unfair trial may not result in a
miscarriage of justice. That would be so
where, for example, that trial concluded with an acquittal, since the concept
of miscarriage of justice comes into play only following a conviction on
indictment, as provided in section 106(1) of the 1995 Act. Furthermore, a trial may be completely fair
yet result in a conviction which must be regarded as a miscarriage of justice,
as for example where the provisions of section 106(3)(a) operate.
[220] What
importance, if any, it may be asked, attaches to these considerations in the
present context. The answer, in my view,
is that it is potentially confusing and therefore unhelpful, in criminal
appeals under section 106(3)(a) of the 1995 Act to seek to rely on dicta pronounced in appeals under
paragraph 13 of Schedule 6 to the 1998 Act, since the issues which this court
must determine in the former type of appeal, which I have described in some
detail, are inevitably quite different from those issues which the Judicial
Committee require to determine in the latter.
For all these reasons, I do not find anything said in Holland v H.M.
Advocate in the Privy Council to be of any assistance in this case.
[221] Senior counsel
for the appellant, in the debate before us, also relied on Gair v H.M. Advocate 2006 SCCR 419. He contended that, had
Police Constable Lynch's information about the presence of the jewellery in the
bathroom at 2 Smith Street, Elgin in the evening of 28 April 1998 been
disclosed, it could not be excluded that, if that evidence had been led before
the jury, they would have reached a result different from that which they did
reach. In delivering the Opinion of the
Court, Lord Abernethy in paragraphs [38] to [40] considered the implications of
the Crown's failure to disclose material to the defence, particularly in
relation to the witness M. The court
formed the view that the possibility that the jury might have reached a different
verdict if the police statements and other information about M had been
disclosed was real and could not be excluded.
The information which was not disclosed would, in the opinion of the
court, have been of real importance to the defence, in that it would have
tended to undermine the credibility and reliability of M's evidence and thereby
cast reasonable doubt on the Crown case.
Against that background, the court reached the conclusion that the
non-disclosure of the police statements and other information had had such
important consequences, in the particular circumstances of that case, that it
had resulted in a miscarriage of justice.
[222] As was observed
in paragraph [40] of the Opinion of the Court, each case turns upon its own
facts, in the assessment of whether there has been a miscarriage of
justice. For that reason, in my view, no
particular assistance can be derived from that decision in relation to the
present case. If any general principle
emerges from it at all, it is simply this:
that a failure in disclosure, if of sufficient gravity, may amount to a
miscarriage of justice.
[223] I have already
drawn attention to the terms of ground of appeal 2 alleging Crown failure to
disclose to the defence the information provided by Police Constable Lynch at
precognition. That ground of appeal and
ground 1, which deals with the same material in much greater detail, raise the
question of the relationship between these two grounds. Plainly a miscarriage of justice may occur as
a result of the existence and significance of evidence which was not heard at
the original proceedings. Equally, it
may be that such evidence may have been in the hands of the Crown and may not
have been disclosed to the defence. In
such a situation as that, if the evidence was of such significance that the
fact that it had not been heard at the original proceedings amounted to a
miscarriage of justice, according to the approach set out in the authorities to
which I have referred, in my view, the injustice inherent in such a situation
could properly be remedied on the basis of, either a ground of appeal alleging
miscarriage of justice in terms of section 106(3)(a) of the 1995 Act, or a
miscarriage of justice, such as was identified in Gair v H.M. Advocate,
constituted by a failure of the Crown in its duty of disclosure having had
important consequences. In my view,
logic and consistency would require that, in a case such as that figured, the
outcome would be the same, regardless of whether the issue had been raised as a
miscarriage in terms of section 106(3)(a), or a miscarriage constituted by a
serious failure in disclosure.
[224] However, it is
possible to envisage a situation in which the circumstances could not give rise
to an appeal based on section 106(3)(a) of the 1995 Act, but where there had
been a failure on the part of the Crown to disclose information, as opposed to
evidence, the lack of which could be shown to have so prejudiced the defence
that any conviction would require to be quashed, as amounting to a miscarriage
of justice. In a situation like that,
the potential appellant would have but one option as regards grounds of appeal,
that is to say to formulate a ground unrelated to section 106(3)(a), which
focused the nature of the failure to disclose and the serious prejudicial
consequences flowing from it. So, in my
view, depending upon the particular circumstances of any case, it may be quite
immaterial whether the injustice alleged is formulated as a ground of appeal
under section 106(3)(a), or as a miscarriage of justice constituted by failure
to disclose. In such a case as that, if
there existed an option to formulate the ground as one involving either
additional evidence or non-disclosure, if the matter had in fact been focused
as a matter of non-disclosure, the court would require to evaluate that ground
of appeal by making, in substance, the same assessment as would have been
undertaken had the matter been focused in the alternative way; if that were not done, there would plainly be
an inconsistency in the approach flowing from the manner of formulation of the
grounds of appeal, which would be unacceptable.
[225] Looking at the
particular circumstances of this case, in my opinion, the situation falls into
the former category which I have described.
Accordingly, I consider that it is immaterial whether the specific
problems founded upon by the appellant are treated as a ground of appeal under
section 106(3)(a), or as a matter of non-disclosure. However, considering the extent to which the
matter is focused in detail in ground of appeal 1, it would appear to me to be
appropriate that it should be dealt with it in terms of that ground.
[226] Before parting
with this particular aspect of the case, since there was discussion of the
matter before us, I would wish to express my view in relation to the issue of
precognitions. This topic is of
practical significance in this case because, although the document was never
completed and was not brought to the attention of the Advocate depute at the
trial, constable Lynch was precognosced by the Crown, the result of that
process being the document set out between pages 3 and 6 of bundle No. 1
for the appellant. In Downie v His Majesty's Advocate 1952 J.C. 37 the court had to consider an
issue relating to the recovery of, inter
alia, statements made in connection with the prosecution of a
sub-postmistress on a charge of embezzlement.
The accused sought recovery of certain documents in the hands of the
Crown or Post Office authorities. These
documents, recovery of which was sought for the purposes of preparing the
defence and a special defence that the crime, if committed, was committed by
another person, were statements made by that person to Post Office
investigators and committed to writing, and certain other material. The court did not in fact make a
determination but continued the petition to allow consideration by the Crown of
the propriety of producing the documents sought to be recovered, other than the
statements made to Post Office investigators.
Lord Justice General Cooper, with regard to the statements made to the
Post Office investigators expressed the view that it was very difficult to
figure circumstances in which any court would order the production of such
documents, which were, in the case of a Post Office embezzlement charge, prima facie indistinguishable from Crown
precognitions, to which absolute privilege attached. At page 40 of the Report he said:
"The absolute privilege attaching to
Crown precognitions (or to documents such as those in question which are prima facie indistinguishable from Crown
precognitions in the case of a Post Office embezzlement charge) is undoubted,
and its preservation is vital to the system of criminal administration which
prevails in this country."
With that observation, I would respectfully agree. In an adversarial system of criminal justice,
such as ours, it appears to me necessary that parties to a prosecution should
be at liberty to prepare precognitions in which observations of a confidential
nature can be made concerning witnesses, for the benefit of those possessed of
the responsibility of conducting the prosecution, or the defence to it, without
fear of disclosure. Subsequent decisions
appear to me to support that view. In
that connection, I refer to Sinclair v
H.M. Advocate and, in particular, the
observations of Lord Hope of Craighead at paragraph [28]. Considering an issue of disclosure of police
statements in the context of Article 6(1) of the Convention said:
"The change in practice recognises
that the primary rule is that all witness statements, other than precognitions,
in the possession of the Crown must be disclosed. It may, of course, be a matter of some
difficulty in any particular case to identify whether a document is or is not a
precognition and thus entitled to the protection."
In that connection, the law has recently been clarified in H.M. Advocate v MacSween 2007 S.C.C.R. 310, in paragraphs [11] to [14] of the
opinion of the court, delivered by the Lord Justice General. While I wish to affirm the traditional
protection accorded to precognitions, I consider that it has to be recognised
that there may be circumstances in which material recorded in a precognition is
of such a nature that the Crown's duty of disclosure would require that it
should be disclosed to the defence.
However, that may be done simply by the disclosure of that particular
material, as opposed to the precognition itself.
[227] Where, as here,
an appeal is founded upon the existence and significance of evidence which was
not heard at the original proceedings section 106(3A) provides that such
evidence may found an appeal only where there is a "reasonable explanation of
why it was not so heard." There are
numerous authorities in which the expression "reasonable explanation" has been
considered, among which there may be mentioned Campbell and Steele v H.M.
Advocate 1998 S.C.C.R. 214, particularly at pages 241 to 242, 245, 261 to
263 and 270 to 271, Barr v H.M. Advocate 1999 S.C.C.R. and McIntyre v H.M. Advocate 2005 SCCR 380.
A very recent case in which this issue arose is Burzala v H.M. Advocate
[2007] HCJAC 67. In the light of
these authorities, certain general principles emerge. It is for the appellant to demonstrate that a
reasonable explanation exists. The court
will take a broad and flexible approach to the issue, taking into account the
particular circumstances of any case and what steps the appellant could
reasonably be expected to have taken in the light of what was known at the
time. A failure by an appellant's advisers
to precognosce a Crown witness would generally be seen as precluding there
being a reasonable explanation for that witness's evidence not being heard,
although there might be exceptional circumstances allowing of a reasonable
explanation, where a precognition had not been taken. However, in McLeod v H.M. Advocate
1998 S.C.C.R. 78, at page 102, Lord Hamilton, as he then was, pointed out that,
so far as an accused person was concerned:
" ... a person accused of serious crime
is entitled to legal advice, commonly in the form of legal aid. Accordingly, lines of enquiry suggested by
the terms of the charge and of the response and instructions of the accused in
relation to it can be pursued with legal advice."
Furthermore, as was pointed out in Burzala v H.M. Advocate
in paragraph [49] of the Opinion of the Court Lord Macfadyen said:
"It seems to us that the steps by way
of investigation that could reasonably have been undertaken on the appellant's
behalf go beyond merely contacting witnesses suggested by the appellant, but
include those steps that could and should have been undertaken if thought had
been applied to possible sources of helpful evidence."
[228] Throughout most
of the hearing of this appeal before us, matters proceeded upon the basis that
police constable Lynch and woman police constable Clark had not been
precognosced on behalf of the appellant prior to his trial. Had that understanding remained, it might not
have been difficult to reach the conclusion that no "reasonable explanation"
was available in relation to the possible reception of their evidence as
additional evidence. However, on 4
December 2007,
it was brought to our attention by senior counsel for the appellant that it had
then appeared that these police officers had in fact been precognosced prior to
the trial. In due course, copies of what
are described as "statements" of these witnesses were produced which bore to
have been taken, in the case of woman police constable Clark, on 11 August 2002
and in the case of police constable Lynch, on 23 November 2001 by a firm of
precognition agents, McPherson Precognitions.
Neither of these two documents makes any mention of the persons from
whom they were taken having seen jewellery in the bathroom at 2 Smith Street, Elgin, on 28 or 29 April 1998.
It is unfortunate that the existence of these documents which had been
in their possession throughout did not come to the attention of the advisers of
the appellant until the stage when it did, however, for my part, the
explanation given for that was comprehensible.
[229] Against this
background, the issue of whether there exists a reasonable explanation, within
the meaning of section 106(3A) of the 1995 Act, in the context of this case
must now be considered. One of the
factors that is relevant, in my opinion, is the nature of the allegations made
against the appellant in the indictment.
It will be seen that, following the allegations leading up to the
allegation of murder in sub-paragraph (e), the indictment alleges that,
thereafter, with intent to defeat the ends of the justice, the appellant did
certain things specified in sub-paragraphs (i) to (iv) and that, in this way,
he attempted to defeat the ends of justice.
It is relevant to note that sub-paragraph (i) refers to the removal of
the jewellery of Arlene Fraser from her body.
Sub-paragraph (iii) contains the allegation that, on 7 May 1998 at 2
Smith Street, Elgin, the appellant placed a wedding ring, engagement ring and
eternity ring belonging to Arlene Fraser in that house. It appears to me that, having regard to those
particular allegations, it would have been a matter of importance for
investigations to be made concerning the presence of jewellery belonging to
Arlene Fraser in the house at 2 Smith Street, Elgin, not only on 7
May 1998,
but between the time of her disappearance and that date. Examination of the two precognitions taken
from the police witnesses mentioned does not reveal that any such attempt was
made. Indeed one may comment that the
precognitions concerned read very much as if they had been prepared simply by
the transformation of police statements into precognitions. The likelihood of that having happened
appears to me to be augmented by the fact that neither of these two witnesses had
any recollection of having been precognosced by the appellant's advisers in
this case prior to trial. In the light
of all of these circumstances, I have not been persuaded that a reasonable
explanation exists as to why the evidence which they can now give was not heard
at the original proceedings.
[230] Upon the
assumption, contrary to the conclusion which I have just reached, that a
reasonable explanation, within the meaning of section 106(3A), of the 1995 Act
exists, I now proceed to consider briefly the issue of the significance of the
evidence founded upon and, in particular, whether the appellant's conviction,
returned in ignorance of the existence of that evidence, represents a
miscarriage of justice. In this
connection, your Lordship in the chair has analysed the nature and strength of
the Crown case at the trial in different ways.
As regards that case, leaving aside the evidence relating to the
jewellery and the evidence of Hector Dick, I respectfully agree with the
conclusion reached that the Crown's circumstantial case was a powerful
one. Because it was a circumstantial
case, like your Lordship in the Chair, I cannot understand why the trial judge
directed the jury that they could convict only if they accepted that the
appellant had placed the rings in the bathroom on 7 May
1998. I agree that that was a misdirection. While it may be that this direction was
prompted by the trial Advocate depute's reliance on the circumstance of the
appearance of the rings there then, as the cornerstone of the Crown's case, I
consider that it was inappropriate in the context of a circumstantial case
supported by numerous adminicles of evidence, no one of which was essential to
the case.
[231] Recognising the
force of the circumstantial case, if there is also taken into account that
case, in association with the evidence of Hector Dick, in my opinion, the case
becomes almost overwhelming. Its force
is augmented if, in addition, the appellant's own evidence is taken into
account. Finally, it is appropriate to
consider the standing of that case if there is also taken into account the
evidence concerning the jewellery, its presence in the house at 2 Smith Street,
Elgin, when that house was seen by the police officers concerned during the
night of 28 to 29 April 1998 and also the evidence concerning the finding of
jewellery in the bathroom of the house on 7 May 1998, following a visit to the
house by the appellant, that is to say the evidence of the earlier presence of
the jewellery in the bathroom and its subsequent reappearance there. In my opinion, looking at the Crown case in
this way, it is evident that its force would actually have been enhanced, if
the additional evidence not heard at the original proceedings had in fact been
heard at those proceedings. I have in
mind, in saying that, first the evidence not heard of the presence of the
jewellery in the bathroom at night on 28 to 29 April 1998, indicating a sudden
departure by the now-deceased, second, the absence of the jewellery in the
house on the occasion of the police search on 29 and 30 April 1998, and third
the evidence given by Hector Dick, to be found at pages 91 and 92 of volume 3
of the transcript, to the effect that the appellant had informed that witness
that the night the now-deceased went missing he had gone to the house at Smith
Street and tidied up the house to "clear any evidence". It would be difficult to envisage any more
damning material than that in the context.
[232] Accordingly, on
the basis of the analysis of the evidence by your Lordship in the chair, I
conclude that the fact that the appellant's conviction was reached in the
absence of the evidence concerning the jewellery having been in the bathroom on
28 and 29 April 1998 could not be seen as a miscarriage of justice. Looking at the matter as involving a failure
to disclosure on the part of the Crown, likewise I cannot conclude that the
failure to disclose the material in the precognition of Police Constable Lynch
taken on or round 3 July 2002 was productive of a miscarriage of
justice. For the reasons that I have
outlined, I consider that that material if disclosed, would in fact have
enhanced the Crown's case.
[234] For all of
these reasons I agree with the motion of your Lordship in the chair that this
appeal against conviction should be refused.
|
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice Clerk
Lord Osborne
Lord Johnston
|
[2008] HCJAC26
Appeal No: XC229/03
OPINION OF LORD JOHNSTON
in the Appeal by
NAT GORDON FRASER
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
For the Appellant: Gray QC, Miss
Livingston, advocate; John Macaulay
& Co., Glasgow
For the Crown: Beckett, QC,
A.D., Balfour; Crown Agent
6 May 2008
[235] I have had the
opportunity of reading the Opinion of your Lordship in the chair and I am
extremely grateful for the comprehensive review that you have undertaken in
respect of the background to the case, both factually and procedurally, and the
events which took place subsequent to the trial. I have no difficulty in accepting all of your
Lordship's conclusions on the matters material to the issues before us and I
would therefore just very briefly endorse or supplement certain of the
observations your Lordship has made.
[236] In the first place,
despite considerable emphasis being placed upon it, I do not consider this
effectively to be a fresh evidence case at all, largely because I consider that
for reasons which your Lordship has discussed, and with which I agree, the
issue of the jewellery is to my mind quite secondary to the main issue of guilt
and the determination by us as to whether, against that background of such a
finding, there has been a miscarriage of justice. This is the only issue before us in my
opinion, albeit it may have certain aspects to it.
[237] The conduct of
the Crown at certain stages of the investigation, particularly in relation to
disclosure, leaves a lot to be desired, to put it mildly. However that again does not detract from the
overall duty of this court to weigh the whole evidence in the context of a
miscarriage of justice and a finding of guilt.
[238] I may say in
passing that I share your Lordship's concerns about the cases of Holland and Sinclair and sincerely hope that these cases can be comprehensively
reviewed in view of the fact they appear to have been seriously misinterpreted
in the lower courts. For my part, I
confirm that I do not consider that the Crown is ever under any obligation to
disclose precognitions, although in certain circumstances information coming to
the attention of the Crown obtained by way of precognition may be appropriately
handed over to the defence informally as part of the general issue of fairness
as between adversaries in our adversarial system. It would, however, in my opinion, be quite
impossible for the Crown to operate in response to its public duties if it was
always concerned that its precognitions as such would be made or would require
to be made available to the defence.
Witness statements may be in a separate category, especially if obtained
in the course of a police enquiry and not by way of precognition once charges
have been proffered.
[239] Returning to
the present case it is my considered opinion that the issue of the jewellery
was, for various reasons, some not to be understood by me, inflated to a level
of importance far beyond its actual relevance.
[240] The abduction,
if that be the case, or at least the disappearance of the deceased with her
jewellery left in the house, may well be a material piece of evidence, if such
be proved, as to the undue haste in which she departed for whatever reason and
by whatever means. Equally, if, as seems
likely to be the case in my view because of the evidence of the family in the
ensuing days immediately after the disappearance, the appellant returned the
jewellery to the house, that might be significant but no more than that in the
overall picture.
[241] What has caused
me my principal concern in this case is that, at certain parts of his charge as
have been highlighted by my colleagues, the trial judge gave certain directions
to the jury as to the materiality of the issue of the jewellery which, on one
view, focused the case on far too narrow a ground. In this respect I do not necessarily
criticise him because the advocate depute embarked upon this course of action
again, for reasons which were no doubt good to him but not entirely clear to
me, save perhaps a concern that the original co-accused might not have been an
acceptable witness to the jury in terms of credibility. However the direction must be regarded as a
misdirection to a material extent.
[242] In fact the
general directions given by the judge at the beginning of his charge are such,
in my opinion, as to obviate any difficulties that the subsequent passage
relating to the jewellery creates. While
it is always incumbent upon the jury to listen, and possibly follow, judges'
directions the charge must be looked at in its overall context and, in my
opinion, the jury were left with a quite clear picture focusing far wider
issues than that of the jewellery, not least coming from sources such as the
evidence about the motor car, and the whole behaviour of the appellant at the
time of the actual disappearance, not least his reaction when initially
confronted by the police later in the same evening.
[243] For these
reasons and for those already advanced by your Lordship in the chair and my
colleague, despite the complex legal issues that were debated in front of us,
at the end of the day the issue seems to me for this court to be neither more
nor less than a sufficiency of evidence in the overall context of a miscarriage
of justice. If the direction complained
of by the trial judge specifically related to the jewellery is to be regarded
as such, it must be construed as favourable to the defence because it narrowed
the issues before the jury from the broader issues of the guilt of the
appellant in the surrounding circumstances.
That seems to me, taken at its highest on behalf of the defence, to be
favourable to them and not therefore to amount to a miscarriage of justice.
[244] In these
circumstances I am satisfied that the jury had material as summarised by your
Lordship before them more than to entitle them to convict and that the
directions of the trial judge which were obviously unfortunate in the context
of the jewellery, did not result in a miscarriage of justice.
[245] I concur in
refusing this appeal.
