RICHARD WILHELM KARLING v. HER MAJESTY'S ADVOCATE

On 19 December 1995 the appellant was found guilty, by a majority verdict of the jury, of the following charge, namely that:

"On 27 June 1995 at the Pancake Place, Union Street, Glasgow and at the house at 2 Silvan Place, Busby you did assault Dorothy Bernadette Niven, then residing at 2 Silvan Place, aforesaid and did at the Pancake Place, aforesaid administer temazepam to her whereby she became intoxicated and thereafter did convey her in a taxi from the Pancake Place, aforesaid to the house at 2 Silvan Place, aforesaid and there did force her face into a pillow and asphyxiate her and murder her and you did previously evince malice and ill-will towards her".

The appellant's appeal against his conviction is based on a number of grounds, but for the present we are concerned with his claim that there was a miscarriage of justice based (i) on the proposition that there was insufficient evidence to entitle the jury to convict him; and (ii) on the existence and significance of evidence which was not heard at the trial.

Earlier in the day the appellant telephoned the deceased's place of work shortly after 9 a.m. to say that she would not be in for work that day. He had also left a message on the deceased's telephone answering machine to say that he had not forgotten that he was to do that. There was also evidence that the appellant returned to the Pancake Place and paid the bill for what had been supplied the day before. This was at about 12.15 p.m.

As regards the body of the deceased Dr. P.L. McNaught, the police surgeon who attended at the scene at about 6.15 p.m., considered, in view of the post mortem lividity, that she had died between 12 and 36 hours before. In due course it was found that there was temazepam in her bloodstream at a level of .41 mgs per litre of blood and that she had taken some paracetamol. There was no sign of forcible entry to the house.