Couple who murdered Shetland woman for drug money lose appeals against conviction

Ross MacDougall and Dawn Smith were convicted of the murder of Tracy Walker on 30 July 2019. The first appellant was sentenced, as actor, to a punishment part of 23 years, and the second was sentenced on an art and part basis to one of 21 years. They claimed that the trial judge had misdirected the jury, and that the sentences imposed on them was excessive.

The appeals were heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Turnbull and Lord Pentland. The first appellant was represented by McConnachie QC, the second appellant by P Nelson, advocate, and McKenzie, solicitor advocate, and the Crown by S Borthwick, advocate.

Incriminated the other

The deceased was killed in a car park close to the flat of a drug dealer, Gary Latham, where the appellants had been that evening to obtain drugs. She called Mr Latham and asked him to supply her with drugs after midnight, after which the appellants began talking about robbing someone to get money for more drugs.

Witnesses described later seeing the second appellant pulling a knife from her handbag as the two were getting ready to leave, and the first appellant being on top of someone outside directly behind the flat, roaring with anger. Mr Latham went outside and saw him with a knife in his hand, later discovering the deceased with a deep gash on her throat. The cause of death was identified as sharp force injuries and external compression to the neck. The knife was identified as belonging to the second appellant’s stepfather.

In advance of trial, each of the appellants had lodged an incrimination of the other. The Crown’s case was focussed on the first appellant being the principal actor, with the second appellant having provided him with the knife used in the murder. In his directions to the jury, the trial judge stated that the second appellant could only be convicted on the basis she had acted in concert with the first, and that there was no evidence that the first appellant had taken the knife himself.

Counsel for the first appellant submitted that the trial judge had erred in directing the jury that there was no basis for convicting the second appellant as an actor. There was no basis for excluding this possibility from the jury’s consideration, even if it was a weaker possibility than the Crown theory of the case.

The second appellant submitted that the trial judge had erred in directing the jury that they could not consider the possibility that the first appellant had carried the murder weapon to the locus, on which basis he might have convicted alone.

Clear and unequivocal admission

The opinion of the court was delivered by Lady Dorrian. Addressing the first appellant’s submissions, she began: “Whilst it is possible to say that one view of the evidence might have allowed a conclusion that the second appellant was actor, and such a conclusion might have been open to the jury had they rejected the central propositions upon which the Crown case was based, the evidence that the first appellant had in fact been the actor – which included a very clear and unequivocal admission to using the knife - was extremely strong.”

She continued: “Whilst the evidence and the defence case might have raised the possibility of the second appellant as actor, a conclusion that she had acted alone is not one which might reasonably have been reached by the jury on the evidence as a whole. There was overwhelming evidence that the two appellants had acted together in the course of a common purpose in the pursuit of which they murdered the deceased.”

Turning to the second appellant’s case against conviction, she said: “The simple fact of the matter is that there was no evidence to support the contention made in counsel’s speech. The only evidence placing any time frame on the removal of the knife was that it must have been within the week or so prior to the events giving rise to the murder.”

She went on to say: “There was evidence that the second appellant admitted taking the knife herself, and that it had been seen in her possession prior to the murder. The first appellant was only seen with the knife subsequent to the murder. There was simply no factual basis upon which the trial judge should or could have directed the jury to the possibility that the knife had been taken by the first appellant. As such, he was entitled to remove that hypothesis from the jury’s consideration on the basis that it was speculation.”

For these reasons, the appeals against conviction were refused.

Extreme violence

Considering the sentences imposed, Lady Dorrian noted: “We accept this was a case of extreme violence, and that it was aggravated by the purpose of robbery. Nevertheless we are persuaded that a sentence of more than 20 years for the first appellant was not merited, even having regard to his record. He has a conviction for assault to severe injury and danger of life by the use of a knife, for which a 16 month sentence was imposed, and another for possession of a knife which attracted 14 months. That record is a basis for differentiating the case of the second appellant.”

She continued: “Although she too has prior convictions, those were not of the violent nature of those of the first appellant (although she does have convictions for possession of weapons). She has served a sentence of six months imprisonment for theft and bail charges.”

The court therefore quashed the appellants’ original sentences and imposed a sentence of life imprisonment with a punishment part of 20 years for the first appellant and a sentence of life imprisonment with a punishment part of 18 years for the second appellant. The latter period was reduced to 17 years and 2 months to reflect the period on remand.