JUDGES in the Nat Fraser appeal were stunned yesterday by a "significant development" which prompted one of them to comment: "Curiouser and curiouser."
Both defence and prosecution lawyers in the appeal had believed two new witnesses had not given statements to Fraser's original legal team before his 2003 trial.
However, in the last few days, statements have been found by accident, the Court of
Criminal Appeal in Edinburgh was told. They were among the volumes of case papers held by the defence, filed in a totally separate area of evidence.
The Crown has already questioned the reliability of the evidence of the two witnesses, a former policeman and a serving officer, and yesterday's twist could expose them to further criticism. The court heard that both insisted they never gave statements to the defence.
Fraser, 48, was convicted at his trial of instigating the murder of his estranged wife, Arlene, 33, who disappeared from her home in New Elgin, Moray, in April 1998. A cornerstone of the prosecution's case related to Mrs Fraser's engagement, wedding and eternity rings.
The jury was told, those had vanished with her but had reappeared in the house several days later, when Fraser was visiting his children. The allegation was that he had returned them, showing he had had access to the body.
After the trial, however, it emerged that Neil Lynch, now retired but a constable at the time, had given the Crown a pre-trial statement in which he said he had seen rings in the house on the night Mrs Fraser was reported missing. The statement was left on the desk of the local procurator-fiscal - who said later he had never seen it - and no follow up action was taken, nor was the information disclosed to the defence.
A second officer, PC Julie Clark, said she too had seen rings that night.
Fraser claims he suffered a miscarriage of justice and his appeal is based on the evidence of the witnesses. As the hearing resumed, Peter Gray, QC, for Fraser, announced that there had been a "significant development" over the weekend.
He said: "On Friday evening, it was discovered that, contrary to the belief of PC Lynch, contrary to the belief of PC Clark, contrary to the belief of the advocate depute and certainly contrary to my belief and those instructing me, PCs Clark and Lynch were precognosced [examined beforehand] by solicitors acting on behalf of [Fraser] at the time of the trial."
Mr Gray explained that Fraser's current legal team was different from his team at the trial and his original solicitor had said no statement was taken from PC Clark or Mr Lynch.
One of the judges, Lord Johnston, remarked that it seemed the solicitor was someone else who had forgotten. He added: "Curiouser and curiouser."
Mr Gray said the current solicitor, John Macaulay, had been searching through the case papers when he came to a file which related to lip-reading evidence. That evidence, as it turned out, had never been led at the trial.
"In that file, there were a number of statements and precognitions which had nothing to do with that subject. They were loose and fell out. Mr Macaulay put them back in and put the file to one side, but then looked back at them again and, on doing so, came upon the precognitions of Clark and Lynch," said Mr Gray. He added there was no mention of rings in either statement.
The hearing continues.
