Case No: 200207268 D2
Neutral Citation Number: [2005] EWCA Crim 3001
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM 
His Honour Judge Mellor
Sitting at Ipswich Crown Court
Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday, 24 November 2005
Before :

THE RIGHT HONOURABLE LORD JUSTICE HOOPER
THE HONOURABLE MR JUSTICE JACK
and
HIS HONOUR JUDGE GORDON 
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Between :

	REGINA		
	- and -		
	STEVEN PUACA		

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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Mr P Katz QC and Miss A Ward (instructed by Fosters Solicitors) for the Appellant
Mr W Coker QC and Mr C Morgan (instructed by CPS) for the Respondent

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Judgment
LORD JUSTICE HOOPER : 
1.	On 22 November 2002 in the Crown Court at Ipswich the appellant, Steven Puaca, was convicted of the murder of Jacqueline Tindsley on 28 February or 1 March earlier that year. On 9 and 10 November 2005 we heard his appeal. At the conclusion of the hearing we announced that the appeal would be allowed and the conviction quashed. We reserved our reasons, and we now provide them.
Introduction
2.	The primary issue at the trial was the cause of Miss Tindsley’s death. At 6.41 am on Friday 1 March 2002 the appellant made a 999 call.  Paramedics arrived at the flat where he and Miss Tindsley lived at 6.49. They found Miss Tindsley lying on her bed. She was dead and some rigor mortis was present. It was the prosecution case that at some point during the preceding night the appellant had smothered her by pressing her face into the bedclothes so she could not breath. The appellant did not give evidence. It was his case, supported by a written statement he had provided to the police when he was interviewed, that he had gone to sleep during the afternoon or evening of the 28th February, that he had woken at 9.30 pm to go to the lavatory, that Miss Tindsley was asleep in her bed, snoring, and that he had next awoken at 6.40 am when he had gone into her room and found her dead. It was accepted that, if Miss Tindsley had been smothered, the appellant was the only person who could have done it.
3.	The issue of cause of death turned very largely, perhaps wholly, on the pathological evidence. We will revert to the question of the other evidence relied on by the prosecution. To establish smothering the prosecution relied on the evidence of Dr Michael Heath, who had conducted a post-mortem examination during the afternoon of 1 March 2001 having earlier that day gone to the flat where the body had remained very largely as the paramedics had found it. The prosecution also relied on the evidence of Dr William Michael, a neurologist, who gave evidence on a subsidiary issue. The defence relied on the evidence of Dr Nathaniel Cary who had carried out a post-mortem examination on 14 March 2001. The defence also relied on the evidence of Professor Crane, the State Pathologist for Northern Ireland.
4.	At the trial two possible causes of death were identified for the jury. Dr Heath stated that Miss Tindsley had been smothered whilst on her bed. The other possibility was by reason of an overdose of drugs perhaps coupled with a fit. That was advanced by Dr Crane and Professor Carey. They did not, however, rule out the possibility of smothering. But what they did say, and say most forcefully, was that there was no pathological evidence to support Dr Heath’s view. They have subsequently had the backing of five further pathologists who either gave evidence before us at the request of the appellant or who provided reports which were before us. That further evidence and the reports were accepted before us by the prosecution as credible. Those pathologists said that they would not have given suffocation as the cause of death. They strongly challenged a number of matters on which Dr Heath relied in order to reach his conclusion. The prosecution did not seek at the hearing of the appeal to rely on any further pathological evidence to support Dr Heath.
5.	Before we can come to the grounds of appeal it is necessary to refer to the damage done to the infraspinatus muscles which was observed by Dr Heath and Dr Carey. This was described by Dr Heath as marked tearing with extensive haemorrhaging within the torn muscles. The infraspinatus muscle is a muscle about the size of an adult finger, which is part of the muscle system in the area of the shoulder. One of its purposes is, with other muscles, to retain the humerus in the shoulder socket. It also enables the arm to be turned outward. The damage to the muscles was symmetrical, that is to say, it was the same on each side of the body. Dr Heath’s view was that the damage to these muscles was caused by Miss Tindsley straining up as she resisted being smothered. Dr Carey’s view was that the damage was more likely to have occurred during a fit.
The position of Dr Heath
6.	Dr Heath is an accredited pathologist appointed to the Home Office Register of Forensic Pathologists on 24 April 1991. In June 2006 he will appear before the Home Office Policy Advisory Board of Forensic Pathology facing disciplinary charges relating to his conduct in both the present case and in another (R v Fraser). The complaints in those cases were made as long ago as July 2002 in respect of Fraser and in February 2003 in the present case. The complaints in the present case were made by Dr Carey, Professor Crane and Dr White. Dr Carey was also a complainant in the case of Fraser. The complaints have resulted in two charges. It was agreed that, if the Board were to find against Dr Heath in his handling of the present case and if we were to dismiss the appeal, then there would be a request for a review by the Criminal Cases Review Commission. Given the delay in both this case and in the hearing of the disciplinary charges, we took the view that we should proceed with the hearing of the appeal rather than awaiting the outcome of the disciplinary proceedings.
The grounds of appeal
7.	Six grounds of appeal in all have been advanced on behalf of the appellant. The first related to the Lucas direction given to the jury in respect of alleged lies told by the appellant. Leave was refused by the single judge. No renewed application was made before us, and we need say no more about it. The second ground related to the summing up to the jury of the issues which arose on the pathological evidence. Leave was also refused on this ground by the single judge. Although it was not formally renewed before us, it was a matter which caused us concern. The third ground related to an issue which arose late at the trial as to whether Dr Heath had dissected the shoulders and what he had said when he was recalled to deal with that. This had led to the instruction of Dr Hugh White, a pathologist agreed by the prosecution, to examine the body to see if the shoulders had been dissected. Leave was given on the dissection issue. It turned on the meaning of what Dr Heath had said when he was recalled. In the light of our other conclusions we did not find it necessary to consider this ground.
8.	Dr White’s report, however, went far beyond the issue as to the dissection of the shoulders. For he was asked also to consider the conclusions of Dr Heath and Dr Carey, and to consider part of Dr Heath’s oral evidence. His view was that there was no pathological evidence to indicate suffocation, and he was very critical of Dr Heath. He was the first of the five further pathologists to whom we have referred. The reports of two (Professor Ferris, Professor Emeritus at Auckland, New Zealand  and Professor Hougen, a Danish forensic pathologist) came about by reason of the complaint concerning Dr Heath’s conduct in connection with the present case made to the Policy Advisory Board for Forensic Pathology.  Two further reports were prepared by Dr Anscombe and Professor Milroy.  Both gave up their time to prepare their reports “pro bono”, so concerned were they also about Dr Heath’s conclusions.  These further reports gave rise to grounds four and five.  Leave was granted in respect of these grounds by the Full Court on 4 November 2004.  Ground four was, in effect, that Dr Heath’s evidence could not be relied on. Closely combined with it was a second new ground (five) which related to the evidence about whether the infraspinatus muscles were actually torn. Leave was also granted in respect of that ground on 4 November 2000.  In the context of the appeal that became very much a subsidiary issue. It was not pressed before us and we need say no more about it.
9.	The second report prepared by Professor Ferris dated 20 January 2005 stated that on microscopic examination of slides of tissue taken from the infraspinatus muscle he had found that the haemorrhage in the muscle appeared to show early inflammation. If that was so, it followed that the damage was not simultaneous with the death. That would negative smothering as a cause. Professor Ferris’s view was supported by Professor Christopher Milroy among others. This provided a sixth ground of appeal, and we formally grant leave in respect of it.
10.	On reading the papers in advance of the hearing we had a number of concerns about the trial, including in particular concerns relating to Dr Heath’s evidence. Counsel were informed that we wished to hear submissions as to whether Dr Heath’s conclusion as to the cause of death was properly reached and, in that sense, one that he was qualified to give. In the light of our concerns as to the safety of the conviction the appeal was conducted on a somewhat wider basis than the grounds of appeal themselves.
Ground 6 – an interval between muscle damage and death
11.	We take this first because it was a short and discrete issue, which led to it being conceded on behalf of the prosecution that the conviction was unsafe.  The point is stated in paragraph 9 above.
12.	In his evidence to us Professor Ferris said that he was cautious as to the time that must have elapsed between the injury and death: the view of many was that inflammation could be detected between 6 and 12 hours after injury but he and his colleagues accustomed to taking slides would identify it within two hours of the injury occurring. In the light of this fresh evidence Mr William Coker Q.C. conceded on behalf of the prosecution that the conviction could not be upheld. He accepted that the evidence satisfied the requirements of section 23 of the Criminal Appeal Act 1968. Mr Coker was plainly right to make these concessions. If the injury might have been caused a period of hours before the death, it could not be relied on as an indication of smothering and the main, perhaps only, basis for Dr Heath’s view had gone.  We should record that Dr White was less sure in his oral evidence as to inflammation, as was also the author of another report served on behalf of the prosecution. Given that the samples had only been taken at the second post-mortem (by Dr Carey), there was a risk that the results were affected by deterioration.
The safety of the conviction – the evidence at the trial and the part of Dr Heath
13.	We will first set out what the uncontradicted evidence called by the prosecution showed.
14.	The appellant and Miss Tindsley shared a flat in Lowestoft. Although they did not share a bedroom they were dependent on each other. It was agreed by the parties that:
“The relationship … was stormy.  Both drank heavily.  From time to time the defendant would hit the deceased.  Sometimes her friends and members of her family saw bruises on her face and body.  Twice she reported the violence to the police and as a result the defendant was convicted of common assault on 19/10/2000 and placed on probation and on 18/12/2001 was convicted of assault occasioning actual bodily harm and made subject to a community rehabilitation order.”
We record that Miss Tindsley was 175 centimetres high and weighed 53 kilos. The appellant was about the same height and weighed 82.5 kilos.
15.	Miss Tindsley abused both prescription drugs and alcohol. She was described as a binge drinker. Nonetheless her level of alcohol at her death was insignificant. She accumulated a large variety of tablets over the years: tranquillisers, sleeping pills, antidepressants, diuretics and other medicines. Her daughter said that she would take one or two extra tablets from time to time, that she would take sleeping tablets along with anti-depressants. She had seen her on several occasions when she was very sleepy with slurred speech. She had a history of over-doses. The post-mortem toxicological evidence showed that when she died she had ingested alcohol, amitriptyline, dothiepin, dihydrocodeine, codeine and probably diazepam.  The level of alcohol in the blood was subclinincal.  But the levels of dothiepin and amitriptyline were higher than would normally be expected for therapeutic concentration of both drugs.  In particular the level of amitriptyline was approaching levels associated with fatalities due to amitriptyline poisoning.  Likewise the levels of both opiates, codeine and dihydrocodeine are higher than would be expected for normal therapeutic values.  
16.	Nothing untoward or unusual happened on the day before Miss Tindsley was found dead on 28 February, nor in the days preceding that. On 28 February the appellant cashed his Giro cheque and drank, perhaps heavily, in the company of Miss Tindsley during the morning. They both returned home at about 4 pm, possibly earlier according to the appellant’s account to the police. On 1 March at 6.10 am a neighbour heard the appellant shout “Where is my fucking shoes?”. The neighbour said she could hear footsteps running backwards across the floor above her.
17.	At 6.41 am the appellant made a 999 call.  Having identified his address, he told the operator that his girlfriend was not well and had been sick.  He said that there was blood around her mouth.  He told the operator that he had been asleep all night.  When asked whether she was conscious he said that she was cold.  When asked whether she was breathing he said he would go and have a look.  He was then heard to call out her name.  He said that he had just been to wake her because he always does wake her and had seen the blood coming out of her face.  He was asked where she was and the appellant said that she was lying on the bed and “she’s all curled up, I, I, can’t straighten her”.  He confirmed that again to the ambulance operator.  The operator then asked whether there was any chance that the appellant could get her onto the floor and he said that he said he would try that.  He went away.  Crying was then heard.  He came back and said that he didn’t know what to do.  The operator said: “Have you got her onto the floor?”  To which he replied: “I have laid her on the bed as much as….. but I can’t lift her”.  The paramedics arrived at 06.49am.  They found evidence of rigor mortis.  One paramedic recalled kicking or nudging with his foot the lens of some spectacles and then that he put the lens onto a cupboard.  The paramedics did not disturb the body although they did put electrodes on the chest to check for signs of life.
18.	The deceased was fully dressed and there was no sign of any damage to her clothes.  She was lying on her back with both arms in an angled position to the right and left of the head.  One knee was bent and the other was hanging off the bed.  Underneath her was a duvet which had some blood on it in the area of her mouth.  There was a second duvet which was partly over her.
19.	The appellant told the officer that they had come home and that he was tired.  He said that he had taken some sleeping tablets and gone to bed.  He had left the deceased drinking coffee.  He had woken up the following morning to find her with vomit on her sheets.  He said that he could not move the deceased to the floor because she was stiff.  He said that he had tried rousing her by slapping her face, something which is also recorded by the 999 operator.  At about 9am he voluntarily went to the police station. Whilst he was being comforted, he told the police that when he had found her she was “curled up like a baby”. 
20.	When interviewed he handed in a prepared statement.  In that he said that he and Jacqui had left at 1pm to go home.  He said that he had gone to bed and slept and that Jacqui was still up.  He said that he had woken up at about 9.30pm and gone to the toilet.  He said that Jacqui was asleep, snoring with her bedroom door open. He had gone back to bed and woken again at 6.40am and he knew that because he checked his watch.  He had gone into her room and found her crouched over with blood and vomit coming from her mouth.  He then described, again, his attempts to move the body and how it was stiff and heavy.  He denied any assault on Miss Tindsley.
21.	 As we have said, the appellant did not give evidence at the trial.  The jury were directed that they were entitled to draw an adverse inference from that providing that the prosecution had shown a “very strong prosecution case for him to answer.”
22.	By reason of post-mortem changes (hypostasis and blanching), Dr Heath was able to reconstruct the deceased’s position at the time of death.  Subject to a minor disagreement, Dr Cary agreed with Dr Heath’s evidence on this.  Dr Heath reconstructed what he thought her position was in the mortuary and then took photographs of that reconstruction.  It was the position that she would have taken if she had knelt facing the bed head and had then leant forward bringing her chest and head towards the bed and her face onto the bed.  Thus the knees were right under the body, the face was down on the table and the hands were close to and either side of the face.  That position was conveniently called a “foetal” position.  It reflects in broad outline the description given by the appellant during the 999 call and later.  Dr Heath, in evidence, said that she would have voluntarily assumed that position, a position which he described as “defensive”.  It was the prosecution’s theory that something done by the appellant had made her adopt that defensive position.
23.	Dr Heath also told the jury how in his opinion the attacker (who, as we have said, can only have been the appellant) had smothered her.  According to Dr Heath he had lain on top of her in this foetal position and his weight had pressed her face into the bed.  She had then tried to push up in order to be able to breath and in so doing had torn the two infraspinatus muscles.  He did not and could not suggest that the attacker had taken a hold of her, or had used his knee, for example, to hold her down.  There was a complete absence of any bruises, pressure marks or contact points on her back, arms, wrists and on the back of her legs.  We confess to a certain surprise that the deceased could have been suffocated in this way, but that was the evidence which Dr Heath gave. 
24.	 We turn now to his post-mortem conducted during the afternoon of 1 March.  He concluded there and then, without having had access to the report of the forensic toxicologist and without any reference to GP or other medical records, that death was due to asphyxia due to upper airway obstruction.  In Suratan [2004] EWCA Crim 1246, paragraph 38, this court stressed the need in certain cases to refer to ante-mortem records. He said that the upper airway obstruction was caused by the mouth and nose having been forced into a yielding surface such as the bedding material.  He went on to say that “the tearing and haemorrhaging within the muscles of the scapulae were consistent with having been caused during forceful movement of the upper limbs during the upper airway obstruction.”  This was a reference to the damage to the infraspinatus muscles.  As Dr Heath was to say in evidence, she had tried to push up and in so doing had suffered the muscle injuries. Dr Heath averted to no other possible cause. He gave no reasons for reaching the conclusion that he did.  
25.	 During the post-mortem, he found no identifiable external injuries.  He recorded that he found no pathological evidence of defence wounds, restraint wounds, scuffle injuries, offensive injuries or of sexual interference.  He found blood in the mouth and in the aspect of the right hand.  The eyes were congested. There was no pathological injury to the inner aspect of the mouth.  He found what he described as a 1.3cm compression mark to the right side of the lower jaw.  He found coarse petechial haemorrhages over the front of the neck, upper aspect of the front of the chest and right flank of the chest.  Miss Tindsley had long fingernails which were undamaged.  She was also wearing a substantial quantity of jewellery.  
26.	On the internal examination he found that the leptomeninges were congested.  The tongue showed no evidence of bruising or bite marks.  The lungs were congested.  The blood was liquid.  Her kidneys were also found to be congested.   He dissected the scalp and found fine petechial haemorrhages over the scalp. The section of the face showed no significant abnormality,   likewise the forearms, wrists and hands.  
27.	We have already set out his finding of damage to the infraspinatus muscles.
28.	Dr Heath found three small bruises in the area of the right shin, the left tibial tuberosity and the outer aspect of the left ankle.  These were only observable on dissection.
29.	Dr Heath did not refer in his report to any information which he had received about the deceased and the appellant.  Nonetheless it is clear that he had received some information.  
30.	Although Dr Heath made a manuscript report in the terms to which we have referred on March 1, he did not make a typed report until two weeks later after he had received the statement of the forensic toxicologist, Dr Williams.  In the typed report he referred to having reviewed Dr Williams’ statement but he made no mention of its contents nor to how it might or could effect his conclusion.  Professor Crane wrote in his report that he was “particularly concerned that in reaching his conclusions he [Dr Heath] has not alluded to the significance of the toxological findings”.
31.	Dr Heath has also been criticised for his failure to refer to the absence of findings which would have provided support for his theory, even though their absence is not conclusive against it. They include petechiae in the face, eyelids, whites of the eyes and mouth, fibres in mouth, injury to mouth or tongue and bruises or contact/pressure marks on the back and arms.  It is said that Dr Heath should, have set out the reasons which could tend to show that his theory was wrong. That would not have prevented him from giving reasons (as he was to do in part later) why the absence of these findings was not inconsistent with his theory.  He should also have drawn the attention to the significance of the absence of any pathological indication that there had been a violent struggle other than the damage to the muscles.  
32.	We agree with these criticisms.  In our view this unusual case called for a properly reasoned post-mortem report from Dr Heath. A post-mortem report fulfils a number of functions.  It guides the police in their investigations.  It is likely that it will be considered in pre-trial proceedings and applications such as an application for bail or legal assistance.  It is the basis of the expert’s evidence at trial.  As such the opinion of the pathologist must, as the Practice Guidelines of the Policy Advisory Board for Forensic Pathology make clear, be “objectively reached” and have “scientific validity”.  The duty of all pathologists, whoever instructs them, is, in our view, to comply with the obligations imposed on expert witnesses from the start. It is wholly wrong for a pathologist carrying out the first post-mortem at the request of the police or Coroner merely to leave it to the defence to instruct a pathologist to prepare a report setting out contrary arguments.  The case law as to the duties and responsibilities of experts is clear. As Cresswell J said in a much cited passage in National Justice Compania Naviera SA v. Prudential Assurance Co Ltd (The “Ikarian Reefer”) [1993] 2 Lloyd’s Rep. 68:
“3. An expert witness should state the facts or assumption on which his opinion is based.  He should not omit to consider material facts which could detract from his concluded opinion.”

33.	Criticism is also made of Dr Heath’s failure to take samples for microscopic histological examination. We note the reference in the Practice Guidelines to the need for samples and we have noted in paragraph 12 the problems caused in this case by the failure to take such samples at the first post-mortem.   One witness before us doubted whether that criticism is well-founded. In the light of that, it would be wrong for us to reach any conclusion on this point.  It is not necessary to do so for the purposes of the appeal.
34.	On 14 March Dr Cary conducted a second post-mortem and that was followed by the preparation of a report.  He confirmed most of the factual findings of Dr Heath.  He confirmed that there was bleeding relating to muscle fibres of both shoulder blade regions.  He concluded:
“There is no pathological evidence, or any other evidence to suggest death was due to asphyxia due to upper airway obstruction.”
As to the coarse haemorrhages he said that they were a feature of hypostasis rather than an indication of asphyxia.  He said that there was no evidence of injuries around the face and nose to suggest that there had been any forced upper airway obstruction.  In his view:
“Therefore there is no basis whatsoever for Dr Heath to conclude that the mouth and nose have been forced into a yielding surface such as, the bedding material.”
He wrote:
“The only abnormality present is extensive tearing and haemorrhaging in the muscles in the region of both shoulder blades. Dr Heath’s view that this has been caused by forceful movement of the upper limbs during airway obstruction borderlines on the fanciful.  In my opinion the muscle tearing seen has most likely originated from a terminal epileptiform seizure where tearing of the muscles of this kind is not uncommon.”
He went on to say that the toxilogical report of Dr Williams provides clear evidence of a mixed drug substance overdose and:
“In my opinion the only reasonable conclusion to come to in relation of the cause of death is mixed drug substance overdose.”
35.	Dr Carey said that it was recognised that the two anti-depressants which had been consumed, namely amitriptyline and dothiepin, may cause epileptiform seizures in overdose.  In his opinion that was the most likely explanation for the tearing of the shoulder blade muscles.  He said that in his opinion there was quite sufficient evidence of a mixed drug substance overdose contained within the report of Dr Williams in relation to one drug alone, let alone in relation to a combination.  He noted that Dr Williams concluded that the level was approaching levels associated with fatality due to poisoning.
36.	In paragraph 8 of his report Dr Cary said that there was no evidence whatsoever for third party involvement.  Mr Coker was critical of this paragraph during the course of the hearing before us.  He was seeking to meet arguments critical of the manner in which Dr Heath had conducted the post-mortem by showing that Dr Cary was not above criticism either.  Mr Coker submitted that Dr Cary could not say this without considering the evidence of the relationship or of the surrounding circumstances of the relationship and what had happened on the day before and on the morning of the death.  It seems clear to us that Dr Cary was referring to pathological evidence.
37.	The judge made the criticism of Dr Cary that he had blown a little hot and cold about the extent of the injuries to the infraspinatus muscles.  What appears to have happened is that Dr Cary became so concerned about the conclusions reached by Dr Heath that it made him doubt the other conclusions which he had accented in his first report.  We add that neither of the two experts had met together. It may be that as a result of their encounter at the Fraser trial four months before there was bad feeling between them.  If so, that did not help the proper presentation of the issues to the jury.  What is now clear is that there was some damage to the two muscles and that that damage occurred before death.
38.	Having reviewed Dr Cary’s report Dr Heath made a further report dated 24 July 2002.  Dr Heath wrote as follows :
“1.2.1 ….
When taking into consideration the following observations made at the scene of death and at the post-mortem examination, it is my opinion that the death of Jacqueline Tindsley was not due to mixed substance abuse but an upper airway obstruction.
All the following observations had to be accounted for in order for the full assessment to be made.
Scene findings:
The extensive blood staining over the duvet.
The position of Jaqueline Tindsley’s body after her death.  
The broken glasses where the lens had become dislodged.  
Post-mortem findings
Fine petechial haemorrhages over the front of the scalp.  
The marked tearing of the infraspinal muscles associated with the extent of haemorrhages.
The liquid blood.
The bruises over the front of the shins and left ankle.
1.2.2 The above observations do not reflect a death due to mixed substance abuse.
1.3 …. an epileptiform seizure would not account for the degree and symmetry of the infraspinal damage or the final posture obtained by Jacqueline Tindsley. “ 
He stated that the posture at death and the amount of blood staining was not accounted for by drugs overdose or epileptiform seizure.  He said that he would not expect soft tissue damage to the face or nose to be caused by being pressed into bedding material.  
39.	In a third statement dated 11 November 2002 (the day before the trial began) Dr Heath stated that the petechial haemorrhages found by him on dissection of the scalp were caused in about 20 seconds during the asphyxia stage and he explained why one found that kind of haemorrhage.  He said severe force was required to tear the infraspinatus muscles.  He said that “moderate to severe force” would have been required to restrain Miss Tindsley.  He then referred to a new further support for his view - namely the pressure mark on the chin. That, he wrote, was caused by the position of jewellery on the finger during the restraining process.  He stressed that the blood on the “hands” (in fact it was only one hand) and on the sleeves of the jumper and on the duvet indicated that the vessels in the nose had ruptured during, as he was to make clear later, the restraining process: during that process blood had been expelled from the nose, which Dr Heath wrote, was not an uncommon finding in asphyxial cases.  
40.	There was a fourth statement dated 13 November 2002 which related to slides which Dr Cary had taken and which had unfortunately only been produced at a late stage.  Dr Heath said that both the appearance of the lungs and “the post-mortem finding” negatived death from asthma; the oedema and the intra-alveolar haemorrhage within the lungs were consistent with having been caused during an asphyxial process; a heart rhythm disturbance would not cause the changes he had observed.  
41.	We turn now to the evidence given by Dr Heath during the course of the trial.  Before looking at the detail we set out our strong criticism of the way in which his evidence was given. We shall see that over and over again Dr Heath said that various post-mortem findings were consistent with, or were signs of, asphyxia. He was cross-examined about his evidence, often vehemently. That challenge continued before us.  What unfortunately was not made clear during most of his evidence was whether Dr Heath was referring to asphyxia generally or asphyxia by upper airway obstruction. We return to that later. What gives us even greater concern is a concession which was made by Dr Heath in re-examination (although the answer was anticipated in cross-examination).  In re-examination he said that the findings which he described as consistent with, or signs of, asphyxia (other than the muscle damage) were also consistent with the cause of death being an overdose (Transcript 14 November 2002, pages 84-85).   In the light of that answer, the evidence about his findings, excluding the evidence of damage to the muscles, was, in our view, largely irrelevant.  It could have been relevant to a rigor mortis theory of the cause of the injuries to the muscles advanced tentatively by Dr Carey, but no more.  If before the start of the evidence, Mr Coker had known the answer which Dr Heath was to give during the course of re-examination, a great deal of time would have been saved and the risk of jury confusion would have been substantially reduced.  This is another very troubling feature of this case.
42.	Mr Coker submitted that an expert is entitled to say what he has found is consistent with something and that has probative value. Whereas “inconsistency” is often probative, the fact of consistency is quite often of no probative value at all.  In this case his evidence of consistency had no probative value, assuming the correctness of this answer in re-examination. We consider that there is a very real danger in adducing before a jury  dealing with a case such as the present evidence of matters which are “consistent” with a conclusion, at least unless it is to be made very clear to them that such matters do not help them to reach the conclusion.  If it is introduced in evidence, and particularly if it is given some emphasis, a jury may well think that it assists them in reaching a conclusion : for why otherwise are they being told about it?  We are also not convinced that the summing-up was as clear as it could have been on this point (see pages 29-30). 
43.	We shall next look at Dr Heath’s evidence topic by topic in the order in which they arose in his evidence.  The first relates to the staining of Miss Tindsley’s knickers with urine.  Dr Heath had made no point about that in his earlier reports.  He said in evidence that he noted that the crotch region of the knickers was urine stained.  He was asked whether that, in itself, was unusual when finding a dead body.  He replied (Transcript 13 November, page 9):
“Surprisingly enough you do not see people who are dying who are incontinent of urine and faeces as often as one might imagine.  So it is an observation and we see it quite a lot in a sort of criminal setting.”
That comment inevitably led to cross-examination (Transcript 14 November, page 35).  His answer was put to him and it was suggested that one sees this feature in a lot of settings.  He repeated what he normally observed saying that very few people are incontinent during the dying process.  He continued:
“But in the criminal setting I think I see it more often where there has been some sort of fear process going on and I am not in any way going to say that this indicates that there is a fear process present but that is the answer that I would give.  I do not see why it happens but people who have been stabbed or people who have died in traumatic environments, they seem to void their urine more often.  But that is just my observation.  I am not saying that it is significant.   It is [?not] 100% or anything like …..”
It was then pointed out to him that the deceased was taking diuretics and he then went on to say:
“I am not making any conclusions [from] the fact that her knickers were wet at all.”
A few answers later he said that he was not aware of all the details of what she was taking.  
44.	Mr Coker rightly does not seek to defend what Dr Heath said.  In our view it was improper for him to refer to finding urine in a criminal setting.  The evidence of a pathologist can always be traumatic for a jury and in our view there was a risk here of the jury attaching significance to something which in cross-examination Dr Heath accepted had no significance.  The comment should never have been made.
45.	Dr Heath was asked about the pressure mark on the side of the lower jaw.  He said that possibly one of the rings had caused that mark on the chin whilst she had been lying face down.  In the light of the alternative scenario being advanced by the defence pathologists and in view of the fact that it could simply have been caused by the weight of her head resting on her hand or arm before or after death, we see no probative value in the finding of the mark .
46.	A little later, Dr Heath raised a new point.  It was new in the sense that it had not been referred to in the previous statements.  He said that he had found a number of the internal organs to be congested (Transcript 13 November, page 17) and that is one of the signs of death by an asphyxia.  He accepted that the same feature could be found when other causes of death were involved such as cardiac failure.  He was then asked whether it was conclusive or just a sign and he said: “Oh no if you just saw that alone you could not make a particular diagnosis of a particular cause of death.”  He accepted in cross-examination that he had never mentioned this in the reports.  He said that he had been writing reports concerning death by asphyxia for 25 years and had never once indicated, in his conclusions or summary, the changes of asphyxia unless specifically asked to do so (Transcript 14 November, page 63).  He was asked whether this was one of the changes of asphyxia that was so obvious that it did not really need to be put it into a report.  He agreed and went on:
“All the text books describe asphyxia and the cardinal signs of it, thus implying that this was a cardinal sign of asphyxia.”
In cross-examination he was asked whether the fact that the eyes were congested should be taken into account.  He replied:
“I personally think that that is important but I would not because she has been laying face down indicating that it is a diagnostic feature.  Although I personally think that it is important.  I would not use that to advance my argument.”
This is not an easy answer to follow and, at least with the benefit of hindsight, it would have been better if Dr Heath had simply said that the congestion in the eyes was of no relevance to the issue of the cause of death (if that is what he thought).
47.	As to the other findings of congestion, he was asked whether these were found in cases where there has been an asphyxial death.  He said that they were and when asked whether they are found in cases where there has been a death by a different cause, he said that they can be.  Once again the heart attack example was given to him.  Again it is unfortunate that it was not made clear at this stage (as it was going to be made clear later), that this finding was of no probative value in the light of the fact that it could be found in the cause of death for which the defence pathologists were contending, namely an overdose accompanied by fitting.   
48.	We insert at this point our concern at the use of the word “asphyxia”.  Its medical meaning is very broad.  Black’s Medical Dictionary: “Asphyxia means literally absence of pulse, but it is the name given to the whole series of symptoms which follow stoppage of breathing and the heart’s action.”  But in common usage it indicates the deprivation of oxygen to the lungs by external means such as smothering, exhaust gasses in a car, and so on.  It is important that a medical witness makes clear the sense in which he is using the word.  Thus in his evidence to us Dr Anscombe referred to “asphyxia by airway obstruction”.  Dr Anscombe also agreed that in a death by reason of a drug over-dose it is almost inevitable that there will be an asphyxial element as the body receives less and less oxygen.  In this part of his evidence and elsewhere Dr Heath seems to have been using the word “asphyxia” to refer to death by smothering. 
49.	In examination in chief Dr Heath said that the finding of blood in the lungs and the oedema, which he described as water logging, “strongly indicates that this is another sign of asphyxia”, adding that you can also get this in other conditions.  He went on to say that:
“To get haemorrhaging in the lungs that is normally associated with the asphyxial process.” (Transcript 13 November, page 22)
He said to Mr Coker that one could get this in other sorts of deaths and that it was not a conclusive sign.  
50.	Referring to his finding that the blood was “liquid” he explained the mechanics and went on to say that it was not a conclusive sign of asphyxia but was another sign.  He was referred to a standard text book in which the following appears: 
“Descriptions of an abnormal fluidity of the blood seen at autopsy in asphyxia deaths are part of the forensic mythology and can be dismissed with little discussion…it is irrelevant in the diagnosis of asphyxia.”
Dr Heath then made reference to the Dover tragedy in which 58 Chinese illegal immigrants died in a container and said that fluid blood was present in their bodies. Later in re-examination (Transcript 14 November, page 83) he was asked what else could have caused the finding of liquid blood and replied:
“That has to be some asphyxial process.”
51.	He referred to the petechial haemorrhages which he said that he had found within the scalp itself.  In relation to those he said (Transcript 13 November, page 29):
“They are in my opinion important observations and they indicate again some of the observations you get in an asphyxial process, the development of the petechial haemorrhages.  You get a number of processes in asphyxia, petechial haemorrhage formation; you get congestion of organs, oedema in the lungs, the fluidity of blood and also separately described congestion on the external surface of the body.”
Petechial haemorrhages, he said, were caused by the rupturing of the blood vessels.  He explained the mechanics and on a number of occasions he repeated that one must look at the totality of findings.  As to the petechial haemorrhages in the skull he refused to accept that they were connected with his reflection (peeling back) of the scalp.  He said there were haemorrhages within the softest tissue in the scalp as opposed to torn end vessels and he supported that with photographs (Transcript 14 November, page 50).  Dr Heath’s ability to distinguish between haemorrhages caused by his reflection of the scalp and genuine petechial haemorrhages is another matter of challenge: but it is not something on which we are able to form any view.
52.	Dr Heath dealt with the issue of the bruises on the shin which he had said in his second report was one of the observations leading to his conclusion that death was due to upper airway obstruction.  When asked when the bruises could have occurred he said it could have been around the time of death or it could have been a number of hours beforehand, maybe four or six hours.  When asked whether or not the bruising had anything to do with her death he replied: “I could not make that association”.  This conclusion was quite at odds with the conclusion he reached in his second report.  The inclusion of the bruises there and their rejection in the course of his evidence cast doubt on the professionalism of Dr Heath.  
53.	In evidence he returned to the issue of the blood which had featured in his third report.  He was asked about the findings of blood on the duvet.  He said he found no damage or injury to the nose that might have caused the nose bleed and went on to say this (Transcript 13 November, page 49):
“It is quite common, that may not be a fair description, but on occasions during the asphyxial process, because of the build up of blood pressure and the loss of the integrity of the blood vessels where they become more permeable, you get the petechial haemorrhages, that I described, present in the nose and the mucus membrane of the nose and these rupture.  On occasion these can rupture in such a way it can aerosol blood and it would aerosol to the distance of the gentleman in the chair in front of me so that she [sic] shoots quite a long way away from the body.  If you are on bedding that would pass into the material that is closest to the face which, in my opinion, is the way it has got there.  So we have a build up of pressure, rupture of these haemorrhages and again exuding blood and again a finding within asphyxial cases.”
It was put to him that the purging of blood from a person who dies in a face down position is common. He said that it was not.
54.	He was asked about the petechial haemorrhaging which he had found on the front of the neck and which he had described as “coarse”.  It was put to him that that had nothing to do with asphyxia or nothing specific to do with asphyxia.  He replied that he strongly suspected that “you get these changes because of the build up of carbon dioxide”.  He said: “We see that in a lot of cases”.  It was then put to him that these findings could only really be related to her posture after death.  To which he replied:
“Yes, I have done nothing more than … I have not used that as a criteria for the asphyxia process in this case.”
Again Dr Heath was saying something was relevant and then discarding it after a further question.
55.	He was asked about the absence of petechial haemorrhages over the face and in the eyes.  He said: 
“Particularly in cases of suffocation, you tend to get very few petechial haemorrhages and in some cases you get none whatsoever.”
56.	He was asked, in cross examination, to assume that there had been no tearing of the muscles in the shoulder area then asked whether this would still be “death by asphyxia in this way”.  He replied (Transcript 14 November, page 50): “I would certainly have said it was death by asphyxia.”  There was then the following exchange :  
“Q. You might be concluding there postural asphyxia or any of these other forms which do not involve somebody deliberately restraining somebody in that way?  The whole thing is founded on that, is it not?
A. I think that is an important finding, yes, and I have indicated that all the time.  You might well be right on that assessment you have given.”
We already remarked on the ambiguity which can arise as to “asphyxia”.  This important passage left it unclear to the jury whether Dr Heath was saying that without the damage to the infra spinatus muscles he would still have said that this was a death by asphyxia through upper airway obstruction.  
57.	There was a real risk that the jury would have understood the evidence being given by Dr Heath as evidence consistent with asphyxia by upper airway obstruction.  It is unfortunate that all those involved in this case did not find out whether Dr Heath was referring only to asphyxia in general rather than to asphyxia by upper airway obstruction. If that had been done then much of his lengthy examination-in-chief and cross-examination about the signs of asphyxia would have been unnecessary given the answer during re-examination that the signs were consistent with any death by asphyxia, including death by overdose.
58.	We have noted Dr Heath’s reliance in his second report on the broken glasses. When asked about this, he said in cross-examination: “I would certainly not put it at the highest level”.  We find it difficult to see how any relevance could be attached to the fact that the glasses were broken given the competing possible causes of death.
59.	Dr Heath repeated in his evidence what he said in his second report, namely that the foetal position adopted by the deceased was incompatible with fitting/overdose (see e.g. Transcript 13 November, page 50).  Dr White in his evidence before us made what seemed to be a telling comment on this evidence. He said that experience shows that if a body is found in a funny position, a pathologist immediately thinks of a drugs overdose.  We cannot resolve this issue.  It is sufficient to say that it seems uncertain whether Dr Heath’s reliance on the posture of the deceased at death had any scientific basis.  
60.	Dr Heath also said in evidence, as he had said in his second report, that the bilateral nature of the damage was inconsistent with fitting (Transcript 13 November, page 45).  He accepted that there could be muscle damage during a fit (Transcript 13 November, pages 45-46) but not of this bilateral nature.  This was also disputed by the defence pathologists. Professor Crane, for example, did not follow how the damage to the muscles could have been caused in the way for which Dr Heath was contending (see Transcript 20 November, page 118) and gave his opinion that the damage could have occurred in a fit (page 122). Like Dr Cary he doubted how much reliance could be placed on the evidence of Dr Michael that, as a neurologist, he had never come across this kind of damage.  Professor Crane pointed out the obvious - namely how would Dr Michael know whether a live patient had suffered muscle damage of the kind found by Dr Heath (page 134).
61.	By reason of his opinion on the posture and on the inconsistency of the muscle damage with fitting, Dr Heath eliminated the possibility of death by drug overdose combined with fitting. Whereas Professor Crane, for example, did not exclude the possibility that Dr Heath was right as to the cause of death, Dr Heath excluded the possibility that the defence pathologists were right.
62.	In his second report dated 12 November 2002 Professor Crane wrote:
i)	Extensive blood staining on the duvet has no significance in assisting in the determination of the cause of death in this case.  It is indicative of the deceased having been lying in a face-down position on the bed for a period of time after death.  In such a position it is quite common for blood and bloodstained fluid to leak or purge from the mouth and nose and thus stain the bedding beneath.  In referring to this in his statement of 11 November 2002, he comments ‘that vessels in the nose had ruptured and blood had been expelled from the nose.  This is not an uncommon finding in asphyxial cases’.  I agree with this but equally the leakage of blood from the mouth and nose is not uncommon in a variety of types of death including natural and drug over dosage, where the deceased had been lying face-downwards after death for a period of time.
ii)	The position of the body after death does not assist in the ascertainment of the cause of death.  It is clear that the deceased must have been in a face-down position on the bed, possibly crouching in a foetal position, and that subsequently she was turned over onto her back.  The position of her arms and hands in the photographs, if fixed by rigor mortis in a flexed (elbows bent) attitude, would suggest that she had been lying in a crouched face down position for some hours after death.
iii)	It is no more than speculation to comment on how the glasses of the deceased became broken and the lens dislodged.
iv)	The ‘fine petechial haemorrhages’ on the under surface of the scalp are of no significance whatsoever.  They are usually caused artefactually by peeling back the scalp from the pericranium of the skull at autopsy causing tearing of small blood vessels.  They do not represent an indicator of asphyxia.  Furthermore, in the face-down position, congestive haemorrhages, such as those seen on the skin, would be likely to occur in the post-mortem interval due to the position and posture of the deceased.
v)	The tearing and associated haemorrhage in the infraspinatus muscles was, according to Dr Heath ‘consistent with having been caused by forceful movements of the upper limbs during the upper airway obstruction’.  This, in my view, is a speculative, if not fanciful, opinion.  There was no evidence of bruising of the skin of the upper arms, such as might have been expected if they had been forcibly grasped in an attempt to restrain the deceased.  Furthermore, there was no skin or subcutaneous bruising on the back, over or between the shoulders, which might also have been expected if the deceased had been forcibly held down.  In his statement of 11 November 2002, Dr Heath opines that ‘moderate to severe force would have been required to restrain Jacqueline Tindsley’ yet in his original report he comments on the lack of restraint injuries or more specifically restraint ‘wounds’.
vi)	If a body is moved after death and after rigor mortis has become established, then the repositioning of the body may result in tearing of the muscles.  In fact this is the only way that rigor can be broken, e.g. to extend an arm bent at the elbow.  A consequence of this muscle damage would inevitably be that there would be some leakage of blood into the muscles.  This bleeding would be exaggerated if the affected area is a dependant part of the body and affected by gravity, e.g. the back.
vii)	Having dealt with a number of cases of suffocation due to upper airway obstruction I have never come across a case where tearing and bleeding into the muscles of the back had occurred.
viii)	The fluidity of the blood is not an indicator of asphyxia.  There is absolutely no scientific basis on which this can be asserted.  It is a matter of concern that an experienced forensic pathologist would rely on such a finding, even to a limited extent, when it has been completely discredited and dismissed for many years.
ix)	The bruises on the shins and left ankle are trivial and non-specific.  They could have occurred as a result of minor knocks, bumps or falls.

63.	This long review of the development and bases of Dr Heath’s views and evidence in our view establishes first that his conclusions were not founded in such a way that they could be safely relied on by the jury.  Secondly, we consider that the way his evidence was presented and the points which he made and the manner of making them may well have caused the jury to have given inappropriate weight to aspects of his evidence.  We refer to the “consistent” signs and to the matters which he raised and abandoned – the urine stain, the bruises, the glasses.  Together these provide a second ground for concluding that the verdict of the jury is unsafe and cannot stand.
The summing-up
64.	We turn to the summing-up.  Mr Coker before us conceded, rightly in our view, that (in the particular facts of this case) in the light of the dispute between the experts, the jury could not properly convict in reliance on the evidence of Dr Heath alone. That is because they were faced with a conflict between the experts which, in the absence of other evidence, they could not resolve.  In the absence of supporting evidence, Mr Coker accepted, the appellant should have been acquitted.  Unfortunately, that was not how the judge left the issue to the jury. Alternatively if he meant to leave it in that way, the passage is not sufficiently clear. The judge said: 
“The prosecution case is that on the evidence that you have heard you can be sure that smothering, suffocation, was the cause of death.  The defence put forward as alternative propositions mixed drug toxicity and epileptiform seizure or damage in breaking the rigor mortis.
If, members of the jury, having considered all the evidence and how it fits together you were to conclude that either or both of those alternatives was a possibility on the evidence, so it is leaving it purely on the expert level then the prosecution could only displace that by making you sure that suffocation is indeed smothering, is indeed the answer.
Dr Heath remains of the view that this particular muscle damage that he saw that did not involve dislocation can only be explained by, in effect, the desperate efforts of Jacqui Tindsley to escape the effects of the restraint upon her. 
The defence put forward the other explanation as to which I have referred.  If you conclude, members of the jury, that you could not be sure that the bilateral muscle damage could only be explained in the way in which Dr Heath has sought to explain it, then it would follow that on the pathological evidence suffocation becomes no more than something that may be more or less likely according to your findings, but in effect in the words of Professor Crane, something that cannot be ruled out, as Professor Crane certainly does not, unlike, perhaps, Dr Cary, rule it out as the cause of death in this case.  Unless, members of the jury, there is in the rest of the evidence, the non-expert evidence, that which makes you sure that death by smothering is not merely something that might be or could be so, but something that actually is so, so that you can be sure about it.  It is for you to put the evidence together and see how it fits and where it takes you, what it makes you sure about, what it leaves you in doubt about.”  [We have removed one paragraph break before the word “Unless” to reflect what we believe the judge was saying.]
That passage combined with Mr Coker’s concession would provide a third ground sufficient to dispose of the appeal in favour of the appellant.
65.	Mr Coker did, however, submit that there was such supporting evidence. He pointed to the events of the day before, which do not suggest that there was anything wrong with the deceased. He pointed to the fact that she died fully clothed and had not done the neighbour’s washing as she had said she would do.  This might be a good point but for the deceased’s life style. Given his drinking habits and the fact that money was available for drinking, the appellant would not have gone to bed, so Mr Coker argued, when he says he did. He pointed to the failure of the appellant in interview or in evidence to give a coherent and detailed account of what had happened during the fateful evening and night.  He must, Mr Coker said, have known more than he was saying. There is no explanation for the leg injuries, he submitted.  However, given the deceased’s life style, we see no evidential significance in that as far as the appellant is concerned. He also makes a point about the evidence from the neighbour about 6.10 am, a point about the size of the flat and a further point, which we found difficult to follow, about the moving of the body by the appellant. He said there was no history of fitting, a point which we reject in the light of the evidence of the defence pathologists as to the cause of death. Whilst accepting that the appellant is much to blame for not co-operating with the police during the investigation stage and by failing to give evidence, we do not accept Mr Coker’s argument. Without any clear evidence as to when death occurred, the jury could not, in our view, be sure that death did not occur whilst the appellant was asleep.  In short, the other evidence was not such as would enable the jury to be sure that Dr Heath’s view was correct : compare Kai-Whitewind [2005] 2 Cr. App. R.31.
Outcome
66.	In conclusion, this is a case in which the evidence at trial, the manner in which the trial proceeded and the fresh evidence which we have received leave us wholly satisfied that the conviction must be regarded as unsafe. As we announced at the conclusion of the hearing, the appeal is therefore allowed and the conviction quashed.
67.	It would be wrong to leave this appeal without commenting on the length of time, nearly three years, which has passed between the conviction and the hearing of the appeal.  An outline of the history is as follows.  The appellant was convicted on 22 November 2002, the trial having commenced within the comparatively short time of 8 months from the death.  The original grounds of appeal were dated 5 February 2003, and comprised the first three grounds we have referred to.  The third ground was supported by the report of Dr White, dated 4 February 2003.  The application for leave was considered by the single judge in March 2003 and leave was granted in respect of the third ground only.  Further reports were prepared as follows:  Dr Anscombe, dated 17 March 2003, Professor Hougen, dated 10 August 2003, Professor Milroy, dated 12 August 2003 and Professor Ferris, dated 23 September 2003.  They were served on 26 September 2003.  Further material became available on 11 December 2003 and there was a further hearing on 18 December.  There was next a directions hearing before the court on 11 February 2004.  Following this amended grounds of appeal were prepared dated 9 March 2004 which added grounds four and five.  The prosecution prepared a substantial written argument in answer which was dated 1 April 2004.  The appeal was again listed for directions on 27 May 2004 but was taken out of the list because not enough time had been allowed.  It was re-listed for directions on 4 November 2004 and came before a court presided over by Potter LJ who in a short judgment analysed the issues.  Directions were given, and leave was granted in respect of grounds four and five.  There was to be a report on progress to the Registrar by 10 February 2005 and the appeal was then to be set down for hearing with an estimate of 2 days.  The appeal was listed to be heard on 14 July 2005.  Shortly before the hearing Mr Katz had a consultation with Professors Ferris and Milroy and Doctors White and Anscombe. The point as to the interval between the damage to the infraspinatus muscle and death, and its significance was discussed.  This led to the raising of the sixth ground of appeal, and in consequence to the abandoning of the hearing of the appeal on 14 July, when instead further directions were given.  It was then heard before us on 9 and 10 November.
68.	This history shows how the appeal has taken so long to be heard.  There is some explanation for each delay.  It has to be borne in mind that the appeal turned on expert evidence and involved substantial new evidence.  Further some of the medical issues were complex.  The case contrasts very strongly with Yethinseherci v United Kingdom, European Court of Human Rights, 20 October 2005, The Times, 14 November 2005.  There was a 3 year delay in hearing a simple appeal against sentence.  In that case there was no explanation – at least none which the European Court found acceptable, and a breach of Article 6.1 of the Convention was held to have been established.  The present case is very different.  Nonetheless, if one stands back and considers the three year period by itself, it is most regrettable that the appeal took so long to be heard.