NAT GORDON FRASER v HMA
The Court of Criminal Appeal refused the appeal against conviction of Nat Gordon Fraser.
On 30 May 2012 Nat Gordon Fraser was found guilty of the murder of his wife Arlene Fraser following a retrial and sentenced to life imprisonment with a punishment part at 17 years.
January 2003 The appellant stood trial for the murder of his wife Arlene who disappeared on 28 April 1998. He was found guilty of her murder and sentenced to life imprisonment with a punishment part of 25 years. The appellant appealed against his conviction, but the appeal was subsequently refused in May 2008. Leave to appeal to the Privy Council was also refused.
25 May 2011 The United Kingdom Supreme Court referred the case back to the Court of Criminal Appeal after it criticised the fairness of the appellant’s trial in January 2003. The Court of Criminal Appeal in Edinburgh quashed the conviction, but granted authority for a retrial.
April 2012 Nat Gordon Fraser was retried for the same offence and this resulted in a guilty verdict which was again appealed.
During the course of the trial the appellant sought to have the trial deserted (halted) on the grounds that certain details had emerged during evidence which were prejudicial to him and as a result he could not receive a fair trial. In particular the appellant objected to the reference by one witness to him having been in prison before his wife’s disappearance. The trial judge, having regard to all the circumstances of the case, concluded that it was not necessary to desert the trial and that any risk of prejudice could be removed by his directions to the jury.
The complaint advanced by the appellant at appeal, focused on his assertion that a miscarriage of justice had occurred in the sense that the appellant had not received a fair trial. The appellant claimed that by reason of the witnesses’ answers to certain unrelated questions, one or more of the jurors may have been prompted to draw an inference that the appellant had a previous conviction for assaulting Mrs Fraser and as a result may have had cause to recollect adverse publicity about the conviction or to conduct Internet or other research which would have uncovered it.
It was accepted that the appellant’s original conviction in 2003 and the criticism of the trial process leading to that conviction by the United Kingdom Supreme Court in 2011 attracted a great deal of publicity. However, the court did not consider that there was any realistic possibility that the short answers which were given by three witnesses in isolated moments in the course of a lengthy trial would have prompted any recollection of a previous conviction in the minds of the Edinburgh jurors. Such recollection would presuppose a remarkable and implausible power of memory retention in the minds of people with no obvious direct connection to the case, the locality or the criminal justice system.
The trial judge provided clear and repeated directions to the jury during the trial and again at its conclusion in the charge itself, shortly before the jury retired to consider their verdict. In the absence of material which would tend to demonstrate the contrary, the court must proceed on the basis that the directions were followed.
The appeal court placed considerable weight on the views of the trial judge making a decision at first instance. He had the benefit of presiding over the trial and judging the context of the answers within what, in this case, was a lengthy trial process. The trial judge is best able to assess the likely, and possible, impact of the answers on the jury in light of all that has happened during a trial. Thus he is afforded a wide discretion in deciding whether: to ignore the offending evidence and do nothing, less the matter be emphasised; to direct the jury to ignore that evidence and to advise the jury that they should do so because it has no bearing on the matter before them; or to desert the diet because of the inevitability of an unfair trial as a result.
In this case the appeal court considered that the trial judge took into account all the relevant factors before deciding upon the appropriate course of action. He reached a balanced and reasonable decision based upon these factors. In such circumstances the court was unable to find fault in his decision.
For all these reasons the appeal was refused.
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