Judges were urged yesterday to quash convictions against north-east former nurse Malcolm Webster, who was jailed for 30 years for murdering his first wife and trying to kill his second.
A court has heard that the similarities between two car crashes involving his spouses were not enough to prove Webster was guilty of murder.
Claire Morris died when the car in which she was travelling to Aberdeen crashed down an embankment and was engulfed in flames in May 1994.
Five years later, Felicity Drumm was involved in a similar accident when the car she was in veered across a busy New Zealand motorway before crashing into a ditch near a clump of trees.
On both occasions, Webster was behind the wheel and there was petrol in the boot.
In 2011, the 54-year-old was convicted of murdering Ms Morris in a deliberate car crash. He was also found guilty of trying to kill Ms Drumm, his second wife, as well as several fire-raising offences.
Webster is appealing against his conviction and jail sentence, and yesterday his defence counsel told the court that prosecutors should not have used the Moorov Doctrine – which allows victims of closely connected crimes to give evidence to corroborate events – to prove their case.
Gary Allan QC told the Court of Criminal Appeal in Edinburgh: “In adopting this approach, the Crown was acting incompatibly with Webster’s right to a fair trial.”
The lawyer also argued that trial judge Lord Bannatyne should not have allowed the doctrine to be applied and dismissed his reasoning – set out in a report prepared in response to the appeal – that said the “time, character and circumstances” of the murder and attempted murder charges were linked.
Mr Allan insisted they were “wholly different” and told the court: “It is the Crown’s position for the alleged murder that Ms Morris had been drugged, placed into the vehicle, which Webster then drove off the side of the road late at night in an isolated spot and deliberately set fire to the vehicle, which caused the death of Ms Morris. The set of circumstances relating to the attempted murder charge occurred some four years and nine months after, literally on the other side of the world, in circumstances that were entirely dissimilar.
“Specifically, Ms Drumm had entered the vehicle of her own accord, she had not been drugged, she was fully conscious throughout the whole incident, which took place on a busy dual carriageway in broad daylight with a substantial number of vehicles and passers-by in clear view. There was no substantial collision, nor was there any consequential fire.”
However, the court heard that advocate depute Derek Ogg QC – who prosecuted the case and is now fighting the appeal on behalf of the Crown – told the jury that they could consider the murder charge on its own or, if they were not satisfied with the evidence, look at it alongside the New Zealand crash.
Mr Allan also argued that the doctrine should not have been allowed to be used to prove Webster was guilty of setting a fire at Ms Drumm’s parents’ home, where the couple were staying.
He told the court there was insufficient evidence to prove he had set a previous fire at the couple’s home at Easter Letter Cottage at Lyne of Skene, Aberdeenshire, so the doctrine could not be used for the former charge – and pointed out that the only witness corroborating both incidents was Ms Drumm.
As a result of his argument, Mr Allan was allowed to add a further ground of appeal – that a third fire-raising charge relating to a property Webster and Ms Drumm had been looking to buy should be quashed.
Summing up, Mr Allan told judges Lord Eassie, Lord Wheatley and Lady Clark that there had been a “miscarriage of justice” and urged them to quash the murder, attempted murder and three fire-raising charges.
Mr Ogg will put forward the Crown’s arguments today.