Nat Gordon Fraser V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Justice Clerk,Lord Drummond Young |
| Judgment Date | 04 October 2013 |
| Neutral Citation | [2013] HCJAC 117 |
| Published date | 03 October 2013 |
| Date | 04 October 2013 |
| Court | High Court of Justiciary |
| Docket Number | XC356/12 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| [2013] HCJAC 117 | |
| Lord Justice Clerk Lady Paton Lord Drummond Young | Appeal No: XC356/12 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in APPEAL AGAINST CONVICTION by NAT GORDON FRASER Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: J Scott, QC (sol adv); Capital Defence Lawyers (for Bridge Litigation, Glasgow)
Respondent: I McSporran, AD; the Crown Agent
4 October 2013
Procedure
[1] On 30 May 2012, at the High Court in Edinburgh, the appellant was found guilty of the following charge:
"(1) between 26 March 1998 and 7 May 1998 ... at 2 Smith Street, New Elgin, ... Wester Hillside Farm, Mosstowie, ... Lhanbryde, and elsewhere in Scotland ... knowing that your wife Arlene Fraser, now deceased, then residing at 2 Smith Street, had consulted a solicitor with a view to divorcing you and obtaining a financial settlement from you, you while acting along with another or others ... unknown did
(a) between 26 March 1998 and 27 April 1998, ... at ... Wester Hillside Farm or elsewhere ..., arrange a surreptitious purchase of a motor car with a boot;
(c) on 27 April 1998 at ... Wester Hillside Farm, by the hands of Hector Dick, residing there, and [KR], ... purchase and secrete motor car registered number B231 PDY;
(d) between 28 April 1998 and 7 May 1998 ..., at ... 2 Smith Street or elsewhere ..., assault ... Arlene Fraser then residing at ... 2 Smith Street, by means to the prosecutor unknown assault her and did murder her and you did previously evince malice and ill-will towards ... Arlene Fraser."
The appellant had originally faced an indictment consisting of 6 charges of which the murder charge was the last. There was also a bail aggravation added to the murder charge. Charges (1) to (5) had libelled assaults on Mrs Fraser over the years 1987 to 1994. The bail aggravation narrated that the murder had been committed after the appellant had been released on bail on 24 March 1998. This related to an appearance at Elgin Sheriff Court on a charge of attempting to murder his wife on 22 March, only six weeks before the alleged murder. For reasons which remain obscure, the Crown proceeded with that charge by way of a separate indictment. This culminated in a plea of guilty to assault to severe injury and danger of life. It attracted an 18 month sentence on 1 March 2000.
[2] The present indictment cited the appellant to a preliminary hearing on 3 October 2011. This had followed authority being granted for a retrial by the Court of Criminal Appeal following the decision of the United Kingdom Supreme Court on 25 May 2011 (2011 SC (UKSC) 113) which criticised the fairness of the appellant's first trial in January 2003.
[3] On 8 February 2012, after defence submissions objecting to the competency of libelling charges (1)-(5) and stating an esto position that the inclusion of these charges was oppressive, the advocate depute was allowed to amend the indictment by deleting charges (1)-(5) and renumbering the murder charge (6) as (1). The bail aggravation was also deleted on the advocate depute's motion. The concessions thus made by the Crown, which had followed an unsuccessful plea in bar of trial based upon adverse publicity, were said to have been prompted by a desire to ensure that the focus of the jury was upon the evidence about the events immediately preceding and following the disappearance of Mrs Fraser on or about 28 April 1998 rather than anything reported in the media after that date.
[4] The appellant was sentenced to life imprisonment, with a punishment part of 17 years, backdated to 17 June 2011.
Circumstances
Background
[5] The appellant and the deceased were married in 1987. There were two children of the marriage. At the time of the disappearance of Mrs Fraser, the children were aged 10 and 5 years. The marriage had gone through some difficult periods and, on occasions before 1998, Mrs Fraser had consulted a solicitor about divorce, although she had not proceeded with an action.
[6] The appellant was in business with IT as a wholesale supplier of fruit and vegetables. Mr T lived in Lhanbryde with his wife. At the material time, the appellant was living with Mr and Mrs T, having separated from Mrs Fraser. The appellant was friendly with a local farmer and haulier called Hector Dick, who farmed and ran a coal merchant's business at Wester Hillside Farm, Mosstowie.
[7] Mrs Fraser had continued to live at the family home at 2 Smith Street, New Elgin, with the children. She had again consulted a solicitor. Her solicitor said that on this occasion Mrs Fraser had been serious about proceeding with a divorce. She had entered into correspondence with the appellant's solicitor with a view to ascertaining the appellant's financial position.
Evidence of murder
[8] Mrs Fraser was a student at a local college. She had a day off on Tuesdays and would normally be at home on that day. Thus, on Tuesday 28 April 1998, she was not at college. Both the children attended the local primary school. On 28 April, her daughter was at school as usual, while her son was away for the day at an event in Inverness. In the course of the morning of 28 April, Mrs Fraser disappeared. There has been no trace of her since then.
[9] According to family members and friends, Mrs Fraser was a caring mother. She would not have gone off without making arrangements for the care of her children. She normally kept in touch with her extended family on a regular basis. Despite being a dependable person, she failed to keep a lunch appointment with a female friend, namely MS. She failed to keep a 2.30pm appointment with her solicitor. Her personal effects were not missing from the house. She suffered from a medical condition and her essential medication was still in the house.
[10] The last sighting of Mrs Fraser was at about 8.15am on 28 April, when she was seen by a neighbour attending to the washing in her garden. Mrs Fraser had telephoned the school at 9.41am. She had spoken to the secretary about the arrangements for her son's return from Inverness. The secretary had advised her that she would make inquiries and phone back in fifteen minutes. Mrs Fraser stated that she would be available to take the call, as she expected to be in the house for the next hour. She did not answer the secretary's returned call made about fifteen minutes later or the repeated calls during the rest of the day. When MS arrived at around 11.00am, there was no trace of Mrs Fraser. The hoover was in the hall, plugged in as if it had been in recent use.
[11] Thus, it was tolerably clear that, shortly after the call to the school at 9.41am, something of a devastating nature had happened to Mrs Fraser. There was no sign of a disturbance. The Crown invited the jury to infer that Mrs Fraser must have been murdered. The jury drew that inference.
Evidence incriminating the appellant
[12] There were a number of circumstances which pointed to the appellant's involvement in the murder:
[13] The alibi: The appellant had an alibi for the morning of 28 April, which was not disputed. He had been making a series of deliveries to premises in Elgin, along with an assistant, GF. This was a normal activity for a Tuesday.
[14] Knowledge: The appellant knew that Tuesday was Mrs Fraser's day off and that she would be at home. He knew that she would be alone in the house in the morning, after the children had gone to school.
[15] Motive: The appellant had a motive. There was the background of marital breakdown. The parties had separated and steps were being taken by Mrs Fraser to obtain a divorce.
[16] The appellant was a jealous person. In his first statement to the police, given on 29 April, the appellant had told them about his concern about whether Mrs Fraser was seeing someone else. He described that concern as "festering in his head" and "keeping gnawing at him".
[17] Another female friend, namely MT, said that Mrs Fraser had told her that the appellant had said to her, in the context of the separation, that, if she wasn't going to be living with him, she would not be living with anyone. Mr Dick said that the appellant had said something similar to him. The appellant did not want anyone else involved in the upbringing of his children. He was concerned that, if Mrs Fraser had found someone else, this would happen. Mr Dick described the appellant as being "green-eyed" with jealousy at Mrs Fraser going out socially.
[18] Money meant a lot to the appellant. He had concerns that the financial consequences of divorce would be significant. There was a joint life policy for £100,000. The house was mortgage free. The appellant wanted the return of a Granada car, which Mrs Fraser had retained.
[19] The Ford Fiesta: On Sunday 26 April, the appellant had visited Mr Dick at his farm. He had said that he wanted a car urgently and asked Mr Dick to get one for him. KR worked in a scrap yard in Elgin. At 5.46pm on Monday, 27 April 1998, KR had received a telephone call from Mr Dick looking to source a car that night. KR bought a Ford Fiesta. He took the car out to the farm and Mr Dick put it into a shed. Mr Dick paid him £400 and gave him an additional £50 saying, "Keep quiet about the car". The car was removed by the appellant early the next morning.
[20] On Thursday, 30 April, Mr Dick went to the appellant's home at Lhanbryde. The appellant told him: "There's been a problem; the car is going back to you." He made reference to there having been "a wee bit of a scrape", which Mr Dick interpreted as meaning a "spot of bother". On Sunday, 3 May the car was returned to the farm. Inside it, on the back seat, there had been some articles of children's clothing and a dark brown woman's cardigan or coat. MS said that Mrs Fraser regularly wore a brown coat and that the coat was missing when she had checked the house for missing items.
[21] Mr Dick set the car on fire and used his digger to flatten...
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