State Pathologist Marie Cassidy's "dramatic intervention" over evidence given in a murder trial by her former deputy Dr Khalid Jaber has resulted in a High Court ruling prohibiting a retrial.
The trial of Michael Furlong (37), the Moyne, Enniscorthy, Wexford, charged with murdering Patrick Connors (37) at the Carraig Tur apartment complex, Enniscorthy, in April 2011, collapsed in November 2013 following a dispute about Dr Jaber's evidence.
Dr Jaber resigned as deputy State pathologist in 2013 following a row with Prof Cassidy in which he wrote letters to State and professional bodies criticising her and alleging she was not sufficiently qualified to act as State pathologist.
The president of the High Court, Mr Justice Nicholas Kearns, said it “must have been a shock” to the DPP to learn Dr Jaber had not complied with normal practice and instruction that his report for the Furlong case should have been peer reviewed by others in the State Pathologist’s office.
The absence of that peer review came to light as a result of Prof Cassidy coincidentally being in the Central Criminal Court for another trial in November 2013 on the same day Dr Jaber was giving evidence in the Furlong case.
Prof Cassidy then wrote to the DPP on November 14th, 2013, saying she had heard only the last few minutes of Dr Jaber’s cross-examination, and his re-examination, but that was “sufficient to cause me some concern”.
‘Dramatic intervention’
Her letter expressing those concerns was described by Mr Justice Kearns as “a dramatic intervention”, as a result of which the jury in the Furlong case was discharged and the case later listed for retrial involving the prosecution calling evidence from an English forensic pathologist.
Mr Furlong’s lawyers then brought High Court judicial review proceedings arguing that a retrial was oppressive.
Mr Justice Kearns yesterday granted the prohibition order sought, saying the court “cannot imagine how the difficulties surrounding the pathology evidence might be addressed, let alone resolved” in a retrial.
Earlier, outlining the background to the case, Mr Justice Kearns said Dr Jaber conducted the postmortem on Mr Connors and concluded two scalp wounds were caused by sharp and blunt force trauma to the head and neck, and were likely to have been caused by two separate knives located in the kitchen of the apartment in Enniscorthy.
Jaw fractures were most likely to have been caused by a direct blow to the face, according to Dr Jaber, who found these injuries and “acute alcohol intoxication” were the cause of death, Mr Justice Kearns said.
History of self-harm
Under cross-examination, Dr Jaber “firmly disagreed” with the defence’s propositions the scalp wounds could have been self-inflicted having regard to the deceased’s history of self-harm, the judge said.
He also disagreed the jaw fractures could have been sustained in a fall due to blood loss and intoxication, and that hypothermia was a causative factor in death.
A doctor called by the defence said death was due to a combination of blood loss from the scalp wounds, intoxication and hypothermia.
The trial was adjourned for some days when Prof Cassidy wrote to the DPP expressing her concerns about the evidence Dr Jaber had given.
In the letter, she stated she was unfamiliar with the Furlong case, despite having instructed that all homicide cases undertaken on behalf of the State must be peer reviewed.
Her colleagues Michael Curtis and Margot Bolster had since reviewed her own report and shared her concerns, she added.
While all three were in agreement Mr Connors injuries are more likely the result of assault, her main concern was Dr Jaber’s opinion about the mechanism of death, she said.
No anatomical evidence
Dr Jaber had stated there would have been damage to the upper spinal cord, although there was no anatomical evidence for such an injury in the postmortem report.
She also wrote the postmortem report does not include a history or background information to the case and there was no mention of the amount of blood present at the scene, although Dr Jaber had stated the two scalp wounds would have bled profusely.
The likelihood of hypothermia also had to be taken into consideration as it was alleged Mr Connors had lain outside injured for several hours in a temperature of 5 degrees Celsius, she said.
Mr Justice Kearns said the DPP, acting with “complete propriety”, disclosed Prof Cassidy’s letter to the defence.
When the Furlong trial resumed, the prosecution accepted it could no longer rely on the evidence of Dr Jaber as to mechanism of death.
It then applied to have the jury discharged and this was granted.
Mr Justice Kearns said it must have been of significant concern for the DPP to learn the office instruction that all homicide cases be peer reviewed was not complied with in this instance.