Nightclub manager Kevin James Pollock sat emotionless yesterday as the Court of Appeal overturned his conviction of manslaughter.

The three-judge panel, in its first hearing for the summer session, ruled that Puisne Judge Norma Wade-Miller had misdirected the Supreme Court jury in Pollock's trial.

However, the Court of Appeal did, in the interests of justice, order a retrial. The decision on whether or not to retry Pollock now rests with the Acting Director of Public Prosecutions.

Pollock, a 36-year-old Englishman who was the manager of Flanagan's Pub & Restaurant at the time of the incident, was convicted of the manslaughter of Craig McGavern, 51, last month and was sentenced to 15 months imprisonment.

Pollock was allegedly escorting McGavern out of the restaurant with the assistance of two bouncers last July when Mr. McGavern either fell or was pushed down the back stairs of the restaurant and suffered severe head injuries which led to his death.

Pollock's attorney, Mark Pettingill, yesterday presented seven grounds of appeal against the conviction. The bench quickly pointed out that the crux of the appeal was contained in the first three grounds which concerned the issue of self-defence.

Mr. Pettingill said it was clear that the jury was "grappling'' with the issue of self-defence because they had sent a note to the trial judge asking for the section of the Criminal Code dealing with self-defence in a manslaughter case.

Pollock conviction overturned The Court of Appeal judges wasted no time in saying that the trial judge's direction on self-defence caused them considerable concern because Mrs.

Wade-Miller had not once, but twice misstated the law to the jury.

The judges said the law stated that if a person perceived any kind of physical harm to himself, he was entitled to act in self-defence. But the trial judge told the jury that it was only if Mr. Pollock thought he was going to be very seriously hurt or killed by Mr. McGavern, that he could defend himself.

Patrick Doherty, representing the Crown, was then asked by the bench whether there was any reason why the conviction should not be overturned.

Mr. Doherty said the jury was not affected by the misdirection. The section of the Criminal Code which sets out the description of self-defence was clear and the jury had been left with the correct legal test to apply in the case despite the misdirection.

But the tribunal indicated that a defence which was available to Pollock had effectively been removed by the trial judge's misdirection and that this resulted in a miscarriage of justice. They added that the jury would be relying on the trial judge's directions and would not likely disregard them.

Mr. Doherty invited the tribunal to consider the evidence as a whole, that unbiased witnesses had given evidence and that none of them had seen Mr.

McGavern act in an aggressive way towards Pollock.

But the Court of Appeal indicated that the conviction could not stand in the face of the misdirection.

Mr. Pettingill then argued that there should not be a retrial because his client could not get a fair trial in this jurisdiction. He said there was a widespread perception in the community that self-defence should not be an issue in the case and that the amount of publicity surrounding the trial had irrevocably damaged the chances of finding an impartial jury.

Mr. Doherty, however, said any concerns about prejudice by jury members could be overcome when canvassing potential jurors. He also stated that there was authority from the House of Lords that stated that publicity of a trial was not a ground for not ordering a retrial.

Court of Appeal president Sir James Astwood and his fellow judges, Edward Zacca and Alan Huggins, then retired to consider their judgment and returned a few minutes later to give their decision.

Pollock was then bailed in the sum of $5,000 with two sureties, pending the Acting DPP's decision on a retrial.

When contacted later and asked to comment on the proceedings, Mr. Doherty said the decision "speaks for itself''.

He said it was too soon to say whether there would be a retrial, but that a decision would likely be made within a week.

Mr. Pettingill said: "I am pleased with the outcome.'' He added that he was surprised that there had been a conviction at the trial given that the evidence from witnesses had been so contradictory.

Insofar as any retrial was concerned, Mr. Pettingill had said in court that he did not consider that it would be in the public interest as it was a case of an unfortunate accident, not a murder, and that his client had already spent six weeks in prison.

Kevin Pollock