Andrew Smith

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Andrew Smith was convicted of the murder of Richard Cunningham, who died from head injuries following a struggle in a pub. It was agreed that there had been a fight between Smith and Cunningham. The prosecution argued that at some stage in the fight Cunningham was lying on the floor, Smith kicked him on the head, and as a result of that kick Cunningham suffered a haemorage from which he died. Smith claimed that Cunningham had grabbed him and punched him and a fight had ensued in which he punched and kicked Cunningham in self defence. In the course of this fight, he had punched Cunningham’s face and as a result Cunningham had collapsed and fallen onto the floor.Prosecution pathologists testidied at trial that the injury resulted from an impact to the left side of the head (consistent with the Crown account). On appeal, eminent pathologists concluded the injury was more likely to have been caused by a fall than a kick and there was no evidence to support the view that the injury occured as the result of a kick. On the basis of this evidence, the Crown accepted that there had been a miscarriage of justice, and suggested a substituted verdict of culpable homicide. The court concluded they could substitute this verdict only if they were satisfied that a reasonable jury would have found Smith guilty of culpable homicide. They felt unable to say what the evidence for the jury would have been or how they would have reacted to it. They therefore quashed Smith’s conviction and did not substitute another verdict.

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