An Isle of Man judge yesterday reserved judgment on whether a 79-year-old Dingle man charged with the manslaughter of a woman in his hotel room in Douglas should go forward to trial by judge and jury.
The prosecution told the court it would claim that Mr Richard Benedict (Benny) Moore had non-consensual sex with the woman, Ms Maureen Fox, and that this contributed to her death.
The defence, however, asked for the case to be withdrawn. They said the prosecution's claim was based on speculation, and there was no evidence to support such a case.
Mr Moore was charged with murder last October after the death of Ms Fox in his hotel room in Douglas. This charge was later reduced to manslaughter.
"The case against you is not the strongest I ever came across," said Judge T.M. Moyle, the High Bailiff on the Isle of Man. He said he would give his decision in two weeks' time.
"If I look at all the evidence and I think no reasonable jury would convict you, I will not send the case forward," Judge Moyle told Mr Moore. "If I decide there is a case, albeit a weak case, I will commit you to a jury trial."
Dr Vesna Djurovic, a forensic pathologist who was originally a prosecution witness but became a joint witness following an interview with defence lawyers, told the court that she concluded the cause of Ms Fox's death was acute alcohol intoxication complicated by positional asphyxia.
She described positional asphyxia as coming about when a person's nose and mouth were blocked by bedding, or by pressure from the abdomen in a face-down position, interfering with breathing. Dr Djurovic said she could find no positive evidence that pressure had been applied to Ms Fox's body.
Asked if there was anything to suggest that she would have died from positional asphyxia had she not had so much alcohol in her system, she said: "I would not expect a healthy and sober individual to die as a result of positional asphyxia without interference from a third party."
She added that alcohol also depresses breathing by acting on the breathing centres in the brain.
Ms Louise Byrne, counsel for Mr Moore, asked: "Do you agree there was no pathological evidence to suggest the wrong-doing of a third party?"
"There was nothing to suggest the involvement of a third party," she replied.
Dr Richard Shepherd, a forensic pathologist called by the defence, said that in his view the level of alcohol in Ms Fox's system, which was 398 mgms, was the prime cause of death. There need be no other person involved in a death with such a level of alcohol. Asked if there was any pathological evidence of the involvement of any other person in the death, he said: "None whatsoever."
He told Ms Linda Watts, counsel for the prosecution, that a secondary cause of death could have been the inhalation of gastric contents. He pointed out that the report from the first pathologist to examine Ms Fox had found some vomit in her lungs.
About a pint of vomit had been found in her gullet, and he said that this could also have prevented her from breathing, or caused a reflex reaction that stopped her heart.
Asked to comment on the fact that she was found to be "cold and clammy" by the paramedics who arrived on the scene, he replied: "My fingers are cold and clammy now and I'm still alive. 'Cold and clammy' is of no assistance." He said that minor trauma found in her genital area was consistent with attempted penetration by an object, a finger or a penis.
Asked if this was consistent with consensual or non-consensual sexual practice, he said: "I have seen them in both sets of circumstances. I cannot say."
Ms Byrne asked Judge Moyle to dismiss the case on the basis that no jury, properly directed, would convict.
She said that the prosecution's claims that Ms Fox was incapable of giving consent to sex due to her level of alcohol, and that there was violence in the sexual activity and therefore it was sexual assault, was speculation, and the prosecution should withdraw the case.
Ms Watts said there was a case to answer, and a reasonable jury could convict.