After outlining the weaknesses in the prosecution’s case against John, and explaining how the prosecution’s case had provided him with an alibi demonstrating his innocence, the summing up paragraph in the written application for leave to appeal reads as follows:-

‘The ground of appeal against conviction is that during the course of the summing up the learned judge introduced a novel inferential basis upon which the defendant could be convicted of murder. The basis had not been raised by the prosecution at any stage and had not formed any part of their case, nor had it been addressed by the defence during the course of the trial. On the contrary, evidence had been adduced by the defence for the sole purpose of disproving the particular factual basis upon which conviction was sought by the prosecution, and the evidence adduced by the defence to meet the prosecution’s case was now being used to support a new theoretical possibility. The defendant had never been examined on the matter and there was other evidence which could have been emphasised by the defence which went to disprove the inference.
In all the circumstances the conviction is unsafe’.