Lord Justice Clerk
Appeal No: 11/68
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
NOTE OF APPEAL AGAINST CONVICTION
RICHARD WILHELM KARLING
HER MAJESTY'S ADVOCATE
Appellant: Kerrigan, Q.C., Young; More & Co.
Respondent: Bell, Q.C., A.D.; Crown Agent
10 March 1999
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.
Before coming to the matters which were in dispute it is convenient for us to set out an account of matters which were not materially in controversy.
Prior to 27 June 1995, which was a Tuesday, there had been a relationship between the appellant and the deceased. However, by that date the deceased had another boyfriend who normally lived with her at the house in Busby. Despite the fact that her relationship with the appellant had ceased, the deceased agreed to meet him at the Pancake Place at about 4.30 p.m. on that date. The appellant reached the premises before her and ordered two cups of coffee and a glass of orange juice while he waited for her to arrive. She did so shortly after 4.30 p.m., by which time the coffee had become cold. She was seen to be walking in a brisk fashion and be in apparently good health. However, within a short period of entering the premises, which was put variously as 10-15 minutes, the deceased appeared to become very unwell. She was described by the witnesses as becoming floppy, like a rag doll, and sleepy. There was some vomiting. The appellant was allowed to help her into a toilet. She was also described as sitting with her head in her hands. She was heard to remark that she was embarrassed because people would think that she was drunk. The appellant said to members of staff, by way of explanation of her behaviour, that she was a diabetic. The appellant was supplied with a glass of water for the deceased. There was evidence that he mixed the contents of small sachets of sugar with the water for her to drink. The appellant called for a taxi, in which they left the premises about 5.30 p.m. The deceased was still in a collapsed state. The appellant told the taxi driver that she was in a diabetic coma. The appellant took her to her home. The deceased was not seen again by anyone, apart from the appellant, until about 4.30 p.m. on the following day after he made a 999 call for an ambulance to come to her house. The ambulance men found her lying in her bed face down on a pillow and partially clothed. There was conflicting evidence from ambulance men as to whether the appellant was upset when she was pronounced to be dead. The ambulance men decided that the police should be called.
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.
The Crown case was based on the evidence given by a number of pathologists that the deceased had been smothered, and that her resistance had been affected by the temazepam in her system. They relied on a number of pieces of circumstantial evidence pointing to the appellant as the perpetrator, maintaining that he had administered temazepam to her in the drink which she had consumed at the Pancake Place.
The question of sufficiency of evidence with which we are concerned in this appeal relates to the evidence of the pathologists. We will require to consider that evidence in some detail later in this opinion. However, at this point we should refer to the circumstantial evidence which was relied on by the Crown as pointing to the appellant as the person who had smothered the deceased. As the trial judge observed in his report, this consisted essentially of matters of opportunity and inference, taken together with motive. The relationship between the appellant and the deceased had been of long standing and stormy at times. There was evidence that, some years before her death, she had obtained an interdict against him. He was found near her house on a number of occasions. She had told others that he was being a nuisance and would not leave her alone. There was evidence that he had said that if he could not have her, no one could. As we have already noted, it appeared that by the time of her death he had been supplanted as her boyfriend by someone else. The Crown maintained that a video recording taken outside the Pancake Place suggested that after ordering the coffee and orange juice the appellant had surreptitiously put something in a refuse bin outside the premises. He had the opportunity to put temazepam in her orange juice and to smother her after he returned to her house with her. No temazepam was found in her handbag or elsewhere in her house. The taxi driver gave evidence that he did not hear any conversation between the appellant and the deceased, and in particular did not hear the appellant make any suggestion that she should go to hospital or to her doctor. He said that the deceased appeared to be asleep, although he accepted that her head was resting against the appellant, and there might have been some conversation of which he was unaware. There was also evidence that the appellant said to another man that his girlfriend had committed suicide. According to that witness, this was on a Tuesday evening in a public house. The appellant was drunk and morose. About 11 a.m. the following day he apologised to him about his behaviour. The Crown also relied on evidence that the appellant was seen outside the deceased's house between 9 and 10 a.m. on the day after the incident at the Pancake Place, although it is to be noted that the neighbour who gave that evidence had told the police that this was two or three days before.
A special defence of incrimination naming the current boyfriend of the deceased was lodged on behalf of the appellant. The appellant gave evidence that when the deceased came into the Pancake Place she was sweating and her eyes were bloodshot (an observation not accepted by members of the staff). He gave her sugar there because some time before she had told him that she was diabetic. In the taxi she had resisted his suggestion that she should go to a hospital or to see her doctor. She said that she was going home to "sleep it off". When they reached her house the deceased remained unwell and lay down. He remained in the house, looking in to see if she was all right at 15 minute intervals. At one stage the deceased got up and went into a back bedroom where she fell heavily against a Calor gas heater. He accepted that he did not suggest to her that she should take any form of medication. She told him that she had a headache when she arrived at the Pancake Place. She said that she wanted to sleep and would take something to help her to do so. He then left the house. He visited a number of public houses on his way home before travelling to Ayr. He telephoned her place of work at her request. He went to the house on the Wednesday afternoon. He had a set of keys which she had given to him the day before. When he entered the house, which was about 4 p.m., he called out to her to no avail. When he went into her bedroom and saw her body he was aware of a smell. He tried to rouse her by shaking her. He noticed a mark on one of her arms. Her underpants were stained at the crotch. He pulled up her pants to cover her buttocks and put her skirt over her to preserve her modesty. It may be noted that the Crown founded on the fact that, on his own evidence, the appellant had not suggested any medication to the deceased after they had returned to her house. It was also submitted that it was strange that he had phoned her place of work on the following morning without finding out about her current state of health. It was suggested that, while the appellant had phoned for an ambulance, the fact that he did not move the body and straightened her clothes indicated that he knew she was already dead.
None of the pathologists who gave evidence at the trial had examined the body of the deceased in the place where it was found. The police surgeon, Dr. P.L. McNaught, stated in evidence that he was not able to arrive at a cause of death, but it did not appear to him that the deceased's death was suspicious. A number of photographs of the body were taken at the locus. However, it should be noted that this was after Dr. McNaught, with the assistance of two police officers, had lifted the body in order to enable him to look at its underside. He said that the body had been replaced where it had been, but there had been some alteration in the position of the deceased's hair.
The first post mortem examination was carried out by Dr. Louay M. al-Alousi at about 2.30 p.m. on 30 June 1995. Since the deceased's death was not treated as suspicious he carried out this examination alone. At that time he considered the cause of death to be "acute pulmonary oedema and congestion". This was stated to be subject to a full toxicological report, including full drug analysis. However, he later produced a report dated 11 October 1995 in which he gave the causation of death as follows: "1a (i.e. Disease or condition directly leading to death) acute pulmonary oedema and congestion; 1b (i.e. Due to or as a consequence of) inhalation of gastric contents; 1c (i.e. Due to or as a consequence of) temazepam toxicity and smothering". As can be seen from his report, this arose out of his consideration of the photographs, the level of temazepam which had been found in her bloodstream and a number of pieces of information about the actions of the appellant and the deceased which had been related to him. In his report he expressed the opinion that temazepam could have predisposed the deceased to inhalation of gastric contents and death (para. 2). He also stated:
"The photographs of the scene were suggestive of the face of this woman being compressed and buried in the pillow which could raise the possibility of asphyxia by smothering. There was, in the post-mortem examination, a paucity of marks of asphyxia, apart from suffusion of the eyes which could be a reflection of the drug toxicity or ingestion. However, smothering of a weakened victim, for example through a drug influence, was less likely to be associated with classical signs of asphyxia as the victim was not expected to show struggles or efforts to breath (sic)" (para. 3).
In evidence Dr. al-Alousi said that the picture was of the nose and mouth being firmly compressed on the pillow. It was not the mere contact of a dead body on the pillow (375). In his opinion, taking into consideration the signs he saw in the body there was no possibility of postural asphyxia (380). The possibility of smothering was really a very high possibility (372). When he carried out his post mortem there was no sign of the nose and upper lip being upturned as shown in the photographs. By then the rigor mortis in that part of the body had passed off (348). (It may be noted that Dr. McNaught, according to his evidence, was aware of the fact that the nose and upper lip were upturned, but did not attach significance to this at the time).
Dr. Marie T. Cassidy, along with Dr. Marjorie Black, carried out a further post mortem examination of the body on 13 July 1995. In the course of their examination they found that the deceased had sustained a fractured rib, which they considered was likely to have been caused by a heavy fall. In their report dated 24 October 1995 they gave the cause of death as "unascertained". However, Dr. Cassidy was later asked to review the case in the light of further information. In her report on that review, which was dated 17 October 1995, she expressed the cause of death as: "1a asphyxia, due to 1b suffocation". Dr. Cassidy said in evidence that the position of the body and its external appearance and the absence of other findings made her come to the conclusion that death was due to smothering or suffocation (409). In her experience she had never encountered the upturning of the nose and upper lip in deaths associated with accidental suffocation or smothering (414). She accepted that there was a possibility that the death had occurred in the course of some sexual activity. However, the photographs raised the question of whether the body had been moved. She referred to the appearance of one of the arms, the presence of faecal material near the left foot, and her view that the deceased's underpants were on back to front and inside out.
The third pathologist who gave evidence in the Crown case was Professor Peter Vanezis. He had not examined the body but was asked to review the post mortem findings which had been made. In his report, dated 20 October 1995, he observed that the upturning of the nose and the upper lip could not have occurred after the deceased had died. "To achieve this type of displacement of the features one would need the face to be pushed into the pillow and then the person to succumb in this position". He also stated that it was highly significant that the deceased's underpants had been placed in an inside out/back to front position. Faecal staining on the underpants was quite commonly seen in asphyxia, although it had to be said it was occasionally seen in other types of death, particularly associated with violence. He stated that his overall view of the case, taking into account all the circumstances, was that the deceased had been suffocated by her head being pushed down into the pillow whilst she was incapacitated with temazepam.
During the course of the trial, as the trial judge records in his report, the defence made some attempt to suggest that the death of the deceased could have occurred either naturally or in the course of sexual passion. They disputed that, when the deceased was found, her underpants were on inside out and back to front, and led evidence from employees of Marks and Spencers and British Home Stores directed to showing that what the pathologists had interpreted as a label on the back of the underpants was in fact a bow at the front. The defence led the evidence of Dr. Basil Purdue who performed a further post mortem examination on 22 August 1995. He gave evidence that the first impression from the scene, as opposed to what was shown in the photographs, suggested the thought of a sexual implication (458). We have referred earlier to evidence of statements made by the appellant that he understood that the deceased suffered from diabetes. Evidence was also given by one of the waitresses at the Pancake Place that the deceased told her that she was diabetic. However, her parents denied that she had such a condition. So also did her doctor, and she had been tested twice for the presence of diabetes as a matter of routine. Her colleagues at work described her as a normal, healthy woman with no indication of a medical condition. The only indication to the contrary came in the evidence of Julie McCormack who said that one morning the deceased appeared disorientated when she had been experiencing sleeping difficulties.
The opinion of Dr. Purdue as to the cause of death was, according to his report dated 1 November 1995, "acute pulmonary oedema and congestion (to be amended according to toxicology and histology results)". When he came to give evidence he said that the photographs, which he understood showed the undisturbed view of the body, were extremely informative (449). The position of the body and the way in which the nose and upper lip were drawn up strongly suggested that there had been some sort of pressure pressing her into place (456). The appearances were strongly suggestive of her having met her death in that position and that there were asphyxial changes due to suffocation (451). The faecal staining of the underpants - which he understood to have been put on inside out and back to front - made him highly suspicious (457). He regarded the temazepam as contributing to death but not the main cause (455). He would now express the cause of death as: "1a suffocation and smothering 2 temazepam intoxication".
On behalf of the appellant Mr. Kerrigan submitted that the jury were not entitled to conclude that the deceased had been smothered by an assailant. He did not dispute that, if they were so entitled, there was sufficient evidence to entitle them to conclude that the appellant was the perpetrator. He submitted that the report of Dr. al-Alousi had been coloured by information about the actions of the appellant. His conclusions had been based on conjecture. Dr. Cassidy had read too much into the position in which the body was found. Since it had been lifted and replaced it was important to know how long it could take for the nose and upper lip to be upturned, as shown in the photographs. She had not been asked about that. Even if the deceased had suffocated the pathologists were not in a position to say that the deceased had died at the hands of another.
We are satisfied that there was sufficient evidence to entitle the jury to conclude that the deceased was smothered and that this resulted from the act on the part of an assailant. The fundamental difficulty in the way of the submission made for the appellant is that the views reached by the Crown pathologists plainly supported that conclusion. The reasons which they gave for those views were not self-evidently inadequate, ill-founded or ambivalent. Moreover, as the trial judge observed in his charge to the jury, the evidence of Dr. Purdue supported the view that the deceased had been forcibly suffocated. If the jury discarded death by a natural cause, for which diabetes was suggested, they were left with suffocation resulting from some form of sexual activity or from an intention to smother the deceased. Having regard to the evidence given by the pathologists they were plainly entitled to reach the latter conclusion. Accordingly we reject this ground of appeal.
We now require to consider the ground of appeal which is directed to evidence which was not heard at the trial.
Mr. Kerrigan invited us to consider a number of reports by additional experts in pathology, toxicology and the study of diabetes. These relate, broadly speaking, to the basis for the view that the deceased was smothered (including the part played by temazepam), and alternative causes of death. They also raise criticisms in regard to the quality and extent of the post mortem investigations.
So far as concerns the question of smothering, we were referred to the reports of Professor Bernard Knight, Professor Derrick J. Pounder, Dr. A.C. Hunt and Professor M.A. Green, all forensic pathologists. Professor Knight states in his report that the report of Dr. al-Alousi contained essentially negative findings. For him to state that smothering was a cause of death was "extraordinary". There was "nothing in the objective findings which supports or even indicates such a speculative diagnosis". The cause of death should have been "unascertained". (In this connection Mr. Kerrigan referred to statistics of causes of death in England and Wales in 1996). Professor Knight also states that what had been taken as a paucity of signs of asphyxia, namely the suffusion of the eyes, was a common result of a body being face-down after death. He also says that inhalation of the gastric contents was not an uncommon observation. It did not provide a diagnosis as to what happened in life, and it was not sinister. Likewise he says that for Professor Vanezis to state that the deceased's head would have had to be pushed into the pillow amounted to unsubstantiated speculation. There was absolutely nothing about the upturn of the nose and upper lip which was inevitably sinister or homicidal. He states:
"The head does not even have to fall onto the pillow or bed, it can merely lie against the surface and the dead weight of the head, which is considerable when all muscle tone is lost after death, can allow the features to be squeezed into the surface, causing distortion".
In that connection we note in a subsequent letter dated 21 April 1998 Professor Knight repeats that the upturned nose and upper lip told him nothing whatsoever about the circumstances in which the deceased came to be lying face-down. In regard to the views of Dr. Purdue he said that at the trial he drew the same untenable conclusion from virtually non-existent facts.
Professor Pounder in his report states that the autopsy findings on the deceased, taken alone or with the locus evidence, did not permit a diagnosis of cause of death. He states:
"There is no scientific basis for offering suffocation as the cause of death. The evidence in this case does not allow a diagnosis of suffocation with reasonable medical certainty. The diagnosis is a speculation and the presentation of medical evidence to support it reflects bias".
He also states:
"In my view this distortion of the facial features, including the upper lip, could also be readily achieved spontaneously following loss of consciousness, from whatever cause (such as diabetic coma, drug intoxication), when facing into the pillow. This is a mechanical rather than a purely medical issue. The distortion is readily achieved because of the softness of the tissues of the lip; contrary to the evidence given, it is not fixed by rigor mortis, and once the pressure is removed the distortion will begin to resolve as illustrated in the series of police photographs".
The conclusions of Dr. Hunt, for the reasons which he sets out in his report, include that the cause of death was not ascertained by the examinations of the forensic pathologists who gave evidence at the trial. There was no evidence whether or not the deceased died of smothering. What little evidence there was which possibly related to smothering was, at least slightly, against this having occurred. He refers to the absence of petechiae, marks on the face and staining on the pillow. He also states that the views expressed in evidence by the pathologists at the trial were not orthodox. All the evidence which they put forward as indicating suffocation was entirely speculative and unfounded. Lastly, Professor Green expresses the opinion that the upturning of the nose could well have been simply postural, particularly as the body's position was changed slightly by the police surgeon. He believed that the nose could well have assumed the position shown on the photographs if the body had been left lying face down for several hours after death. Faecal incontinence commonly accompanied asphyxial or other violent deaths, but it was also seen in many natural deaths. Deliberate suffocation of a young healthy adult was relatively uncommon and usually occurred in association with some form of lip or tongue injuries, neither of which were present in this case.
The reports of these pathologists also cover two additional matters. Firstly, Professor Pounder and Dr. Hunt express the view that the underpants were on in the normal position. This view is based on the examination of a number of such items of underwear. Secondly, the pathologists express the view that the level of temazepam in the bloodstream of the deceased, which was below a therapeutic dosage, could not have been a factor in incapacitating her. Professor Pounder also observes that this level was not consistent with having caused her to behave in the Pancake Place in the way described by witnesses. In this connection Mr. Kerrigan also tendered a report by Dr. Michael D. Osselton, a consultant forensic scientist. Among his conclusions are that there was no toxicological evidence to support a claim that the deceased had died as a result of temazepam toxicity; and that the level found in her bloodstream might well have been elevated as part of the process of post mortem change, so that the true concentration in her blood immediately prior to her death could have been significantly lower. Mr. Kerrigan also relied on a report by Professor Forrest, a forensic toxicologist. According to his report the level of temazepam in the bloodstream of the deceased was entirely typical of the sort of concentration found in a person who had taken a therapeutic dose within the last few hours. He would not expect a woman, even one who was not used to taking temazepam, to have become as rapidly and profoundly affected after the surreptitious administration of a therapeutic dose of temazepam as was apparent from the description of her condition by the staff of the Pancake Place. To produce such an effect, a greater than therapeutic dose of temazepam would have had to be taken either shortly before or shortly after her arrival there. He would expect that the concentration in the blood of such a person who had been incapacitated by the surreptitious administration of a greater than therapeutic dose such that she was unable to defend herself successfully against an assault on her life would have been significantly greater than 1 mg. per litre.
The other main branch of evidence on which the appellant now seeks to rely relates to (a) criticism that alternative causes of death were not sufficiently investigated; and (b) diabetes as an alternative cause of death. As regards (a), the forensic pathologists to whom we have already referred indicate that there was a range of possible causes which were not sufficiently investigated. Dr. Hunt referred in particular to pneumothorax due to the fractured rib, cardiomyophathy, acute pelvic sepsis, and diabetes. As regards (b), Mr. Kerrigan tendered a further report from Professor Ian W. Campbell, an expert in diabetic medicine. Among his conclusions were that the evidence given by the witnesses in the Pancake Place contained details in regard to the deceased's appearance and behaviour which could possibly be attributed to hypoglycaemia, i.e. a low plasma glucose level. In his report he explains that hypoglycaemia, possibly leading to coma, can commonly occur in insulin treated patients due to insulin overdose, excessive exercise or inadequate food (carbohydrate) intake. Symptoms such as significant drowsiness, abnormal behaviour, confusion and eventually coma can occur. Professor Campbell also concludes that if hypoglycaemia did occur in the case of the deceased, it could be a major contributory factor to her losing consciousness and dying overnight in her sleep. He referred to this as the "dead in bed syndrome". In his report Professor Forrest states that a very low blood glucose level could give rise to impairment of the function of the brain. Such subjects are usually pale, they may sweat and may present an appearance difficult to differentiate from alcohol intoxication. This condition could develop relatively rapidly and in his opinion was consistent with the descriptions of the deceased at the Pancake Place.
The first question which we consider is whether the appellant has shown or can show that there is a reasonable explanation of why this fresh evidence was not heard at the trial. That question should not, of course, be taken as referring to the evidence as a whole but to what each of the proposed witnesses would say. Thus the mere fact that there is a reasonable explanation why evidence was not led from a particular witness does not necessarily mean that the same applies in the case of another. Even if there is a reasonable explanation in respect of part of what a witness would say the same does not necessarily apply to the whole. As we have already noted the evidence which the proposed witnesses would give covers a number of different topics, with some witnesses covering more than one.
For the appellant Mr. Kerrigan submitted that it was plain that the defence had had no good reason to seek evidence to dispute the positive finding of suffocation, standing the advice which they had received from Dr. Purdue. In that connection Mr. Kerrigan referred not only to his report and the evidence which he gave at the trial, but also to informal written advice which he had given to those representing the appellant at the trial. Dr. Purdue had advised the defence that it was impossible to overstress the importance of the photographs which were crucial to the interpretation of the death of the deceased. He was emphatic that she almost certainly died of suffocation. The appearances were so clear that the photographs would provide ideal teaching material as a classic example of death of this type. It was unlikely in the extreme that they could have been mimicked by chance. Drug intoxication could have directly contributed to the death by depressing consciousness. Dr. Purdue also advised that the posture of the deceased, the markings on her face and the disturbance of her underpants all pointed to a sexual scenario. In that context he said that there was a spectrum of possible implications, ranging from pure accident, which was unusual in the fully conscious because suffocation evoked the most vigorous resistance in fit young adults, to the behaviour of a rapist or lust murderer, whose desire to dominate exceeded all reasonable bounds. Mr. Kerrigan submitted that in these circumstances the advice of Dr. Purdue pointed away from any prospect of success in challenging the diagnosis of suffocation. There was nothing to suggest that there was any ground for seeking sanction from the Scottish Legal Aid Board to obtain a report from another pathologist. In this connection Mr. Kerrigan referred to the observations which had been made by junior counsel who had represented the appellant at the trial. (These had been obtained in response to another ground of appeal with which we are not for the moment concerned). Dr. Purdue had suggested the possibility that the death had occurred during the course of sexual intercourse. However, this could be no part of the appellant's defence, since he had never said that there had been any form of sexual contact between him and the deceased after their return to her house. Mr. Kerrigan pointed out that seminal staining had been found on the deceased's bedding. However, this could have been present since the last time when the bedding had been washed. Seminal traces had been found in her faeces. These had not yielded any DNA evidence. Mr. Kerrigan also pointed out that at the trial the possible significance of the body having been moved was not appreciated. There had been some "gentle" questioning of the manner in which the deceased's death had been investigated, but this had not led anywhere. There had been no question of the defence seeking to undermine the conclusions which the pathologists had reached and the reasons which they gave for reaching them. In the result the defence had not asserted that the cause of her death should have been treated as unascertained.
The Advocate depute said that at the trial there were three alternative conclusions, namely that the deceased had been suffocated by a third party, that she had died in a coma due to diabetes and that she had died as a consequence of her posture during sexual intercourse. In the event the options came down to the first and second. There was no contention that the cause of death of the deceased was "unascertained". And yet it was highly important for the defence to investigate that issue. There was no tenable explanation of why the defence should have relied on Dr. Purdue's advice. If the death of the deceased was due to the actions of a third party, the evidence clearly pointed to the appellant as the perpetrator. In regard to the explanation that the deceased died as the result of a diabetic coma, it had to be remembered that it was the appellant who was the principal source of the allegation that the deceased suffered from diabetes.
We consider that there is a reasonable explanation of why evidence that there was no scientific basis for a finding of suffocation was not led at the trial. It is plain that the evidence and advice given by Dr. Purdue provided ample and indeed emphatic confirmation of the evidence given by the Crown pathologists that the deceased had been suffocated. No doubt that placed the defence in a difficult position since it was not part of the defence that the deceased had met her death as the result of sexual contact between her and the appellant. However, we accept that it is going too far to say that in these circumstances the defence should have sought other evidence by means of which to combat the finding of suffocation. Accordingly we are satisfied that there is a reasonable explanation of why the defence did not lead evidence at the trial to challenge that finding and to seek to persuade the jury that the cause of death should have been stated as "unascertained". These remarks apply to the evidence which Professor Knight, Professor Pounder, Dr. Hunt and Professor Green would give on that question and any matter incidental to it.
In that connection we do not consider that it is appropriate for us to exclude consideration of what those witnesses would say in regard to the effect of temazepam and the question whether the deceased's underpants were on inside out and back to front. It is true that each of these matters was discussed at the trial. In particular there was conflicting evidence as to the position in regard to the underpants. However, if reports from each of these witnesses had been obtained, they would have expressed these views. Furthermore these matters are so closely related to the question of whether there was positive evidence that the deceased was the victim of a homicidal attack that it would not be in accordance with justice to exclude them from consideration. The same conclusion applies to the report by Professor Forrest in so far as it is concerned with temazepam.
We also consider that there is a reasonable explanation of why evidence was not given at the trial that alternative causes of death were not sufficiently investigated. There was nothing in the report and advice of Dr. Purdue to suggest this. Different considerations apply to the report by Professor Campbell, which is concerned with the question whether the deceased displayed symptoms relating to diabetes and died as a result of a diabetic coma. It is plain that the issue of diabetes was raised at the trial, in which there was conflicting evidence as to whether the deceased had given any indication that she suffered from that condition. The appellant does not seek to lead any evidence which is designed to show that as a matter of fact the deceased suffered from it, but to lead evidence to demonstrate that, if the deceased was suffering from that condition, this could account for her behaviour in the Pancake Place and for her dying in a coma in her sleep. However, there is in our view a lack of explanation, let alone a reasonable explanation, as to why such evidence was not led at the trial in order to support the line which was taken by the defence. In these circumstances we are satisfied that there is no reasonable explanation which would justify the admission of the evidence of Professor Campbell or the evidence given by Professor Forrest in so far as it is concerned with diabetes.
We require to consider next whether the evidence in respect of which there is a reasonable explanation could amount to significant evidence, applying the test set out in the well-known passage of the opinion of the court, delivered by the Lord Justice General (Emslie), in Cameron v. H.M. Advocate 1987 S.C.C.R. 608 at page 619. The Advocate depute emphasised that there was no question in the present case of the appellant offering to lead additional evidence as to matters of fact. The additional evidence was entirely directed to matters of opinion. It was to be noted that the appellant did not offer to lead evidence that no competent pathologist would have arrived at the conclusions which were expressed by the pathologists who gave evidence at the trial. The Advocate depute also suggested that the proposed witnesses had not been made aware of a substantial body of evidence which had been given at the trial. Mr. Kerrigan had suggested that the upturning of the deceased's nose and upper lip might have been caused by the way in which the body had been replaced on the bed. However, Professor Knight appeared to be unaware that Dr. McNaught gave evidence at the trial that he saw that feature at the time when the body was lifted, and that care was taken to replace it where it had been. Professor Pounder did not appear to be aware of the evidence which had been given by the witnesses from Marks and Spencers and British Home Stores. They had accepted the possibility that what was shown in the photograph was, after all, a label at the back of the underpants.
We are not persuaded that the evidence which the pathologists could give could not amount to "important and reliable evidence which would have been bound, or at least likely, to have had a material bearing upon, or a material part to play in, the jury's determination of a critical issue at the trial". (Cameron, at page 619). The pathologists whose evidence the appellant seeks to lead clearly state that it is their view that there was no scientific basis for the conclusion that the deceased was suffocated. It does not seem to us to be appropriate to treat the difference between them and the pathologists at the trial as merely relating to the question of the comparative weight to be attached to post mortem signs. In this connection we do not consider that it would be appropriate to exclude the evidence which these witnesses would give in regard to temazepam and the position in regard to the underpants, as each of these matters is involved with the question whether there was any indication that the deceased had died at the hands of a third party.
As regards the report by Dr. Osselton, we have already referred to his conclusions in regard to temazepam. We are not persuaded that his evidence could be significant. At the trial it was not suggested that the deceased had died as a result of temazepam toxicity. The possibility that the concentration of temazepam in her blood may have been elevated as part of post mortem changes does not appear to us to make a difference of any real significance. His other conclusion was that the concentration of paracetamol in her bloodstream would have been unlikely to have exerted any significant effect on her and is likely to have been insignificant in the present case. At the trial there was no suggestion by the prosecution to the contrary. He also found that no attempt was made to detect carbon monoxide in her blood. However, it does not appear to be in dispute that as part of the investigations following the death of the deceased the appliances in her house were checked and the possibility of any leakage of carbon monoxide was excluded. In these circumstances we do not consider that Dr. Osselton would be able to provide evidence of significance.
We also do not consider that we should exclude the evidence which the pathologists would give in regard to the steps which should have been taken to investigate alternative causes of death. As we have already indicated, we do not consider that the appellant has shown that there is a reasonable explanation of why evidence was not led at the trial in order to show that what happened to the deceased was consistent with the effect of a diabetic condition, and accordingly we do not require to consider the significance of that evidence.
Having regard to the conclusions which we have reached we will afford the appellant the opportunity to lead the evidence of Professor Knight, Professor Pounder, Dr. Hunt, Professor Green and Professor Forrest, excluding evidence as to diabetes. This appeal will be continued for the purpose of their evidence being led before a member of the court. Thereafter the appeal will be put out for further hearing.