The final ground of appeal was that the judge wrongly withdrew the verdict of manslaughter from the jury. The judge told the jury that the verdicts open to them were guilty or not guilty. The medical evidence was to the effect that the girl had been offering a considerable amount of resistance and that in those circumstances asphyxia would take three to four minutes whereas it would take four to five minutes if there was no resistance. The evidence of the forensic pathologist was that it was unlikely that the assailant had attacked the deceased from in front and in his opinion the constricting element had been the right forearm of the assailant applied from behind the deceased; the scratch marks on the deceased's neck had been caused, in this witness's opinion by the girl trying to pull herself free and were defence scratch marks from her nails. The constriction caused by the arm had displaced the voice box backwards and to the left compressing it onto the spine and resulting in bruising of the voice box. The application of constricting force over the front of the neck had resulted in blood being trapped within the upper part of the neck and also the face, causing the congestion which is a feature of asphyxia and ultimately causing the rupture of the small blood vessels resulting in numerous pin-point bleeding spots over the eye lids and the iris of the eye.
In this expert's opinion moderate to severe force was necessary to effect the obstruction to the blood flow and also the air entry. In our view this evidence of strangulation lasting from three to four minutes is only explicable on the basis of an intention either to kill or to do grievous bodily harm.
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