This blog post on the case by lawyer Nicholas Diable suggests that the second jury may have come to a not guilty verdict based purely on the original evidence. He quotes an exchange between the defence lawyer and the young woman:
'Ms Khan said: “Looking at all of those actions, although you were in memory blackout, that does not mean you were unconscious, incapable of movement, incapable of making decisions?”
The woman agreed.'
The author concludes:
Taken with the expert evidence of Professor Birch that a failure in memory does not imply a failure in decision making skills, which was presumably relied upon by the Defence and the direction the jury would undoubtedly have been given by the judge as happened in the first trial. Defence Counsel certainly reminded the jury that a person can be drunk and consent several times and that she can fail to remember what happened but that does not vitiate consent if she had capacity to give it. On that basis, you may think that the jury could have reached their verdict without any reference whatsoever to the new evidence from the two former partners.
I'm not a lawyer, but if the alleged victim acknowledges that she was capable of making decisions, doesn't that destroy the prosecution argument that she was incapable of consent?
(The "expert evidence of Professor Birch" was part of the first appeal, not available at the first trial)
@Birdandsparrow the evidence is so clear he didn't have consent
Don't see how you can say that. According to Ched Evans' evidence she was asked if he could join in and answered yes, and was active participant in sex. You can choose to disbelieve the evidence of consent but you can hardly claim it isn't there.