TWO people serving life sentences for murdering a woman in Lerwick have told appeal judges how the pair have fallen victim to miscarriages of justice.
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 in July 2019 – MacDougall was ordered to serve at least 23 years whilst his accomplice was told she would have to serve at least 20 years.
But on Tuesday 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 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.
“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.”
On Wednesday, 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.
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.
Nelson also asked for his client’s sentence to be reduced. He added: “It was excessive.”
Judge Lady Dorrian told the lawyers that the court would issue its judgement sometime in the near future.
She added: “We will take time to consider our decision and we will issue our decision in writing.”
By Edinburgh Courts Press Services Ltd
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