2. Testimony of the daughters. The court was of the opinion that a deliber-
ate decision, made in the light of all factors known to the defence, had
been made not to call the girls as witnesses. Nothing new had arisen, the
reports made had been accurate and properly disclosed to the defence
and it was not the fault of the prosecution if the defence had misread the
situation. Thus, this ground of appeal was rejected.
3. Third Party ‘X’.The court was of the view that there was nothing in
this evidence to render the conviction unsafe. There was no evidence
that ‘X’ had killed V and, indeed, forensic and identification evidence
indicated the opposite. The Court of Appeal held that the defence had
been aware of this evidence at trial and appeal and it was not raised due
to tactical considerations. There was, accordingly, no reason to reopen
the issue at this stage, and this ground was rejected.
The court then turned to the first ground of appeal and accepted that
this was fresh evidence not available at trial or first appeal and thus was
the source of the blood spatters on the defendant’s clothing was the
fundamental issue and that the jury had never had the opportunity to
consider the issue on the basis of passive exhalation of air under con-
siderable pressure from release of a blockage in her upper airways. The
evidence now suggested that, at some time after the start of the attack,
V’s upper airway was blocked/substantially blocked and behind this
blockage was a pressure of 70 mmHg or more. Following the judgment
in R v Pendleton  1 Cr App R 441, the court asked itself whether,
had the jury heard this evidence, there was a reasonable chance that the
verdict would have been different. It came to the conclusion that this
could be the case.
Having decided to allow the appeal, the discussion turned to whether
a retrial was appropriate. The appellant argued that a retrial should not
take place on the following grounds:
1. The case involved a scientific dispute between reputable experts
2. A retrial was unfair as the disclosure of legally privileged material
for the purposes of the appeal meant that the defendant’s position
had been irretrievably prejudiced.
3. 75 per cent of the blood spots had disappeared, the house and its
contents had been sold and, although slides were available, V’s
lung tissue blocks were not.
4. The passage of time meant that memories would inevitably be
impaired. Additionally, the daughters, now in Tasmania, may have
been unwilling witnesses.
The Court of Appeal rejected these arguments stating as follows:
1. The arguments in this case were not confined to scientific evi-
dence. Whilst the Cannings case dealt with unexplained infant
deaths (thereby suggesting that scientific opinion was at the crux
Fresh Evidence: Ordering of Retrial