An appeal court has ordered a new trial for a man convicted of second-degree murder in a 2005 beating death of Brian Fudge, and quashed the assault conviction of the other man charged in the incident.
Charlie Manasseri was sentenced to life in prison with no chance of parole for 10 years for grabbing Fudge's head and slamming it against the bar "10 to 20 times" at the former Le Skratch Bar and Grill on Merivale Road in the early morning hours of New Year's Day 2005.
George Kenny was also found guilty on two counts of assault causing bodily harm after he punched Fudge and a friend of Fudge's outside the bar after asking the bar's bouncer if he could "finish him off."
The injuries put the 22-year-old Fudge in a coma and he died a day later.
Both men appealed their convictions.
On Wednesday the higher court granted Manasseri's appeal, allowing him to try to convince the court that new medical evidence from two experts will absolve him of criminal responsibility.
Both neuropathologist Dr. David Ramsay and forensic pathologist Dr. Christopher Milroy claim Fudge died from alcohol concussion syndrome (ACS) and not diffuse axonal injury, as three experts argued at trial.
Manasseri's lawyer argues their evidence assigns responsibility for Fudge's death to Kenny's final blow.
No trial date has been set.
Kenny not tried in reasonable time
In the case of Kenny, the Court of Appeal ruled he was not tried within a reasonable time as required under the Charter of Rights and Freedoms.
It took five years and eight months after he was arrested for Kenny to be committed for trial, and another 16 months before he was convicted.
"The Crown had the tools readily at hand to move the case against Kenny forward. But it failed to pick up, much less to use those tools to do the work of which they were capable. A separate trial for Kenny, according to the then state of the expert medical opinion evidence, a lesser player in the unlawful death of Brian Fudge, was at once viable, reasonable and in the interests of justice," wrote Justice David Watt in his decision.
As a result Watt ordered a stay of proceedings against Kenny, who was already out on bail.