(First) Ross MacDougall and (Second) Dawn Smith v. Her Majesty’s Advocate [2021] HCJAC 32

Notes of appeal against conviction and sentence:- Both appellants were convicted after trial of a charge of murder relating to the death of Tracy Walker in Shetland on 30 July 2019. The first appellant was sentenced, as actor, to life imprisonment with a punishment part of 23 years. The second appellant was sentenced, on an art and part basis, to a punishment part of 21 years reduced to 20 years and 2 months to reflect a prior period spent on remand. The appellants had both lodged a notice incriminating the other, however, neither gave evidence. The appellants appealed against their conviction and sentence it being contended by both that the trial judge had misdirected the jury. The first appellant argued that the judge erred in directing the jury that they could only convict the second appellant on an art and part basis, rather than as actor, it being submitted that there was a sufficient evidential basis to direct the jury that they could convict the second appellant alone as the principal actor. On behalf of the second appellant, it was submitted that the trial judge erred in directing the jury that there was no basis to consider the possibility that the first appellant had carried the knife used in the incident to the locus, on which basis he alone might have been convicted. Both appellants contended that the sentences imposed were excessive. On behalf of the first appellant it was submitted that a comment made by the second appellant to the Crown witness, Margaret Haughian, was capable of being considered an unequivocal admission which would require little by way of corroboration and that there was thus a sufficiency against the second appellant as actor, albeit weak compared with the case against the first appellant as actor. The Crown and the trial judge conceded that there may be a sufficient case against the second appellant as actor, however, both stated that was not the basis upon which the Crown had sought their conviction. The court noted here, however, that live issues at trial are not dictated solely by what is the Crown theory of the case and simply because the evidence against the second appellant was weak compared with the evidence that the first appellant was actor did not mean that it was not a live issue at trial. On that basis the Crown, ultimately, during the course of the appeal, conceded that the issue had been live at the trial. The court noted that whilst the trial judge made reference to senior counsel’s comments in his speech about the second appellant being responsible for the murder, the trial judge had previously directed them that the only basis upon which they could convict the second appellant was on an art and part basis and had excluded the possibility of the second appellant being convicted on any other basis including as actor. The court considered that there had been a misdirection, however, concluded that the misdirection did not amount to a miscarriage of justice in light of the “…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…”. In light of the evidence, the court considered that the likelihood of the second appellant being convicted as actor and the first appellant being acquitted were “virtually non-existent” and the appeal against conviction was refused. On behalf of the second appellant it was submitted that the trial judge should have directed the jury to the possibility that the knife had been taken by the first appellant to the locus. The court considered that there was no merit in the second appellant’s appeal against conviction there being no evidence led to support such a contention and the trial judge had been correct to remove the hypothesis suggested on behalf of the second appellant’s counsel during the defence speech. In relation to the appeals against sentence the court quashed the 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, reduced to 17 years and 2 months to reflect the period on remand.