According to the report
As to why it was not adduced at trial, he (Myers) contends that it was only as the trial progressed that the prosecution experts began to rely upon a wide variety of skin discolouration as a basis for diagnosing air embolus, thereby departing from their initial apparent acceptance that the only skin discolouration which could properly be regarded as diagnostic was the “bright pink vessels against a generally cyanosed cutaneous background” noted in one case described in the Lee and Tanswell paper. For that reason, the evidence was not available to be deployed at the time when it would have been required, and it was only after the trial that thought was given to seeking evidence from Dr Lee.
But then the next point said
The respondent submits that the proposed fresh evidence, being defence evidence, cannot be relevant to ground 2. Nor, it is submitted, is it capable of giving rise to a ground for allowing the appeal, because it isolates the subjective observations of the various witnesses as to the skin discolouration which they saw in individual cases and takes no account of all the other evidence relied upon by the prosecution – including the evidence repeatedly given by doctors and nurses as to the extraordinary nature of the sudden collapses and deaths of the babies concerned. In doing so, it is argued, the applicant treats as a paradigm what was no more than a single case noted in the Lee and Tanswell paper, which itself was no more than an observational study (and was criticised for that reason in the defence cross-examination of Professor Arthurs). Mr Johnson emphasises that the prosecution expert witnesses did not treat skin discolouration as in itself diagnostic of air embolus, but instead took it into account as consistent with air embolus and adding to the other clinical circumstances which excluded other possible causes and pointed to that diagnosis. He argues that the prosecution case did not change in this regard, and submits that the applicant could and should have called Dr Lee at trial if she wished to rely on evidence from him.