Two people serving life sentences for murdering a Shetland mum-of-two have argued that they have fallen victim to miscarriages of justice.
At an appeal hearing lawyers for Ross MacDougall,33, and Dawn Smith,29, told judges Lady Dorrian, Lord Pentland and Lord Turnbull that the duo should have their convictions quashed.
The pair were jailed at the High Court in Edinburgh for killing Tracy Walker,40, in Lerwick, Shetland, in July 2019 – MacDougall was ordered to serve at least 23 years whilst his accomplice was told she’d have to serve at least 20 years.
Lawyers say judge made mistakes
But, lawyers for MacDougall and Smith told the Court of Criminal Appeal that trial judge Lord Uist made mistakes when he was giving legal directions to jurors.
MacDougall’s advocate Brian McConnachie QC said Lord Uist had told jurors that they could convict Smith of murder if they were satisfied that she “acted in concert” with MacDougall.
He said that this direction ignored evidence which could show that Smith alone killed Ms Walker.
And Mr McConnachie said that by doing this, the jury were deprived of the ability to consider the possibility that it was Smith and not MacDougall who assaulted Ms Walker.
He said: “The learned trial judge indicated that the only basis the jury could convict Dawn Smith was on the basis of concert with Ross MacDougall – you could not convict her of murder if you were not satisfied that if she was acting in concert with him.
‘It was a misdirection’
“In my submission the learned trial judge is giving a very specific direction – he is directing them that in relation to the second appellant she can only be convicted on the basis of concert.
“My submission is that direction was wrong; it was a misdirection.
“What I was endeavouring to do was to set out a clear corroborated case that could have resulted in the second accused as being convicted as being actor but no reference is made by the learned trial judge.”
The duo stood trial last year and denied striking Tracy on the head with a rock before strangling her and stabbing her in the throat.
During those proceedings, the High Court in Edinburgh heard that the pair targeted Miss Walker because they needed money to buy drugs and knew she had £100 on her.
A jury heard Smith handed MacDougall a fish filleting knife which she took from her stepfather’s home in the town.
The pair then confronted 40-year-old Ms Walker in Ladies Drive, Lerwick, and MacDougall struck her on the head with a rock before strangling her and stabbing her in the throat.
Jurors heard that following the attack, Smith stood for ten minutes and watched her victim die before she and MacDougall left and took a ride in his car.
‘You carried out a savage attack’
Passing sentence, Lord Uist said: “In an attempt to rob her of money so you could buy controlled drugs, you carried out a savage attack on her which involved striking her with stones, manual compression of her neck and her striking her repeatedly with a knife.”
Lord Uist then told Smith: “You encouraged or instigated your co-accused to commit this murder and supplied him with a knife which he used. Your guilt is at least as great as his.”
On Wednesday, Mr McConnachie also told the appeal judges that the 23-year term imposed on MacDougall was excessive.
He said that people convicted of similar crimes had been given punishment terms which weren’t as lengthy.
’23 years as punishment part excessive’
Mr McConnachie added: “Having regard to the circumstances, 23 years as a punishment part was excessive.”
Advocate Paul Nelson for Dawn Smith said that Lord Uist failed to address the possibility that another person could have handed MacDougall the knife used in the attack against Ms Walker.
He added: “Briefly put, as far as the appeal against conviction is concerned, it is that there has been a misdirection by the learned trial judge in that he precluded from the jury’s consideration whether they were capable of drawing an inference that Dawn Smith wasn’t the sole capable provider of the knife.
Mr Nelson also asked for his client’s sentence to be reduced. He added: “It was excessive.”
Judge Lady Dorrian told the lawyers the court would issue its judgement in the near future.