He was asked if he recalled punching the deceased and he said that he "did not recall doing that".
44 When seen in context, the statements made by the appellant during these conversations are equivocal and do not add materially to the strength of the Crown case.
45 The Crown also relied on the evidence of Dr Oettle, an experienced forensic pathologist who had examined the deceased. Dr Oettle found a bruise measuring about 40 mm by 30 mm behind the attachment of the left ear. He said that the bruising was consistent with the use of a fist. The bruise had been caused by a blow delivered with a "quite marked" degree of force. Dr Oettle, in chief, expressed the opinion that the bruise could not have been caused by the deceased hitting his head on a flat surface such as a wooden floor. He was of the opinion that the deceased died from a subarachnoid haemorrhage resulting from a blow to the head. A subarachnoid haemorrhage is "a bleeding over the surface of the brain". He did not look for the source of bleeding.
46 In cross-examination, Dr Oettle recognised that it was possible that the subarachnoid haemorrhage was caused by a "fall over backwards" and, indeed, by a wide range of "seemingly innocuous activities". He said that his view of the mechanism of death (a blow to the head where the bruise was found) was "a reasonable probability".
47 Dr Du Flou gave expert evidence on behalf of the appellant. Dr Du Flou was the acting clinical director of the Department of Forensic Medicine. He agreed that the cause of death was a subarachnoid haemorrhage, but said that such a haemorrhage could have a number of causes. These included a blow to the side of the head or neck, bleeding from a vertebral artery (such as from a berry aneurism) or from an impact resulting from the deceased's fall to the ground. According to Dr Du Flou the bruising to the deceased's head could have been caused by the deceased hitting his head in the course of his fall.
48 Dr Du Flou testified that the failure to determine the site of the bleeding meant that it could not be said with any reliability that death was due to a basal subarachnoid haemorrhage due to trauma. He said that such a conclusion could not be arrived at without seeing the injury to the blood vessel. Without this material one could only make a "supposition, possibly an educated guess".
49 The dispute between Dr Oettle and Dr Du Flou was an important part of the trial. In the course of their deliberations, the jury requested the transcript of the evidence of Dr Oettle. It is apparent from their decision that they preferred Dr Oettle's evidence to that of Dr Du Flou. It is difficult to determine the basis for this preference. It is true that Dr Oettle examined the body of the deceased while Dr Du Flou did not. This, however, should not have played a significant part in the decision as the fact that Dr Du Flou had not seen the body did not mean that he was not qualified and able to express a sound opinion on the issue. On a reading of the testimony of the two pathologists involved, there is little, if anything, that could be said to lead to a conclusion that the opinion of one is more cogent or more persuasive than that of the other.
50 There was some evidence led by the Crown to the effect that Mr Craft might have been jealous of the deceased, because earlier on the evening of the party the deceased had been dancing with his wife. This evidence was not particularly strong and did not impress the trial judge. He said, in the course of his sentencing remarks:
"The motive for the prisoner's sudden assault upon the deceased remains unexplained. Indeed, the blow may have been intended for someone else. His evidence was to the effect that he could not remember what occurred. Possibly the prisoner in his alcoholic state magnified out of all proportion a sense of grievance arising from the fact that earlier in the evening the deceased made a wholly innocent approach towards his girlfriend which she properly treated as a joke and conveyed to the prisoner".
51 The appellant testified that due to the extent of alcohol that he had consumed he could not remember what had happened. He could not remember any argument with the deceased, he did not recall pushing the deceased and, as I have mentioned, denied that he had punched the deceased.
52 In essence, the jury were faced with the evidence of Mr Craft seen against the testimony of the other eye-witnesses, the evidence of what the appellant said after the incident, and the conflicting expert evidence.
53 One argument, advanced by the Crown, is that the view of Dr Oettle could be regarded as the foundation of the jury's decision. On this basis, once the jury had decided that they preferred the evidence of Dr Oettle to that of Dr Du Flou, they would inevitably accept that the deceased died as a result of a blow to the head. The only explanation for such a blow was that given in the course of Mr Craft's evidence, namely, that the appellant aimed a punch at the deceased and thereafter the deceased fell to the ground and died.
54 There are, however, major difficulties with this argument. Firstly, Dr Oettle's opinion was expressed in terms of the bruise he found being "consistent with" a blow to the head. He did not in terms say that the bruise had been caused by a blow to the head. Secondly, Dr Oettle said that the cause of death which he propounded was a "probability". He was not prepared to attach a greater degree of certainty than that. Thirdly, he recognised the possibility that the subarachnoid haemorrhage was caused by another mechanism, including a backwards fall. Fourthly, as senior counsel for the respondent accepted, the substantial reason for the jury's preference for Dr Oettle must lie in reasons of demeanour. Particularly when it comes to expert evidence, when there is little otherwise to chose between the probative force of the conflicting views expressed, demeanour can be a dangerous basis for deciding which opinion is correct.
55 Accordingly, I do not accept that the jury's preference for Dr Oettle can anchor the Crown case in the way suggested. Undoubtedly, the jury's preference for Dr Oettle must be given significant weight, but without reasonably reliable evidence which established that the appellant punched the deceased, Dr Oettle's evidence cannot carry the day.
56 Accordingly, the lynch pin of the Crown case was the testimony of Mr Craft. As I have mentioned, he was the only witness who asserted that the appellant had punched the deceased. Without his testimony, the Crown could not establish its case.
57 But, as I have said, Mr Craft's evidence was quite unsatisfactory. I have referred to the matters that indicate it to be materially unreliable. Even without the evidence of the other eye-witnesses, there would have to be grave doubts, on his testimony, as to whether the appellant punched the deceased. In my opinion, a reasonable jury could not have relied on Mr Craft's testimony to establish the appellant's guilt beyond reasonable doubt.
58 To paraphrase the joint judgment in M v The Queen at 494, the record itself contains discrepancies and displays inadequacies to such an extent that it lacks probative force such as to lead me to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted.
59 Although it is strictly speaking unnecessary to consider the other grounds of appeal and the appeal against sentence I shall, briefly, refer to them.
60 The second ground of appeal on which the appellant relied was that:
"The circumstances under which the jury returned a verdict of guilty indicate that a miscarriage of justice has occurred.
61 The jury retired to consider its verdict on Friday 9 August 2002 at 2.40 pm. The jury separated at about 3.54 pm and recommenced deliberations on Monday 12 August 2002. At about 12.35 pm the jury sent the judge a note which read:
"We are unable to come to a unanimous decision."