The outcome of the Dermot Laide retrial raises questions about the resourcing of the office of the State Pathologist, writes Carol Coulter, Legal Affairs Correspondent
It is clear from Dr Marie Cassidy's report into the death of Brian Murphy that Dermot Laide's retrial for his manslaughter, which ended yesterday with the decision of the Director of Public Prosecutions not to proceed further, would have been difficult, if not impossible, for the prosecution to pursue.
The conclusions of the State Pathologist were that the injuries to Mr Murphy, sustained during a fight outside the Burlington Hotel in August 2000, "would not normally be expected to cause or even contribute to death".
She based her conclusions on an examination of the postmortem photographs; the information the former State pathologist, Prof John Harbison, was given before he carried out that postmortem; toxicology and histology reports; statements by other doctors who examined him; and the general evidence that he was involved in a fracas.
Describing the injuries, including bruising to the eye-socket and chin, she said: "The skull was not fractured and there was no evidence of bleeding into the skull cavity. In my opinion these injuries were relatively minor, the most significant were to the chin and mouth and these could have been caused by kicks to the face."
Death following head injury normally involves bleeding inside the skull cavity, she said. There was no evidence that this was responsible for death in this instance.
Instead she advanced other possible causes, including brain swelling and "alcohol-induced apnoea", which she concluded was the most likely cause of death.
Apnoea is a stoppage of breathing for a few seconds. However, she said that it was now recognised that alcohol could have a detrimental effect on a person's outcome following even a relatively minor head injury.
Further, brain swelling may complicate even minor head trauma in younger individuals, particularly children and teenagers.
Alcohol has a depressant effect on the brain and, at levels of over 100mg in the blood, has been shown to lengthen the period of apnoea, she said. This can lead to lack of oxygen to the brain, to brain damage and even, if breathing does not resume, to death.
She said Brian Murphy was not breathing when the ambulance men arrived. She considered, therefore, that alcohol-induced apnoea was the cause of death.
This conclusion is dramatically different from that of Prof Harbison, who gave evidence at the original trial.
He considered that Brian Murphy's death was due to swelling of the brain, brought on by facial injuries received when he was kicked in the head. He based this on injuries to the lower jaw and right eye-socket from a hard object, possibly a shoe or a boot, though he acknowledged that there were no footprints on his face.
The essential points of Prof Harbison's evidence were not contested during the trial. No independent forensic pathologist was brought in to give evidence, as happened in the trial last year of Wayne O'Donoghue for the murder of Robert Holohan.
Prof Harbison also gave evidence that Mr Murphy had not drunk excessively on that night. Other witnesses described him as "in good form" and "merry", rather than drunk. However, 100mg of alcohol in the blood would be registered following the consumption of two or three pints of beer.
Prof Harbison is ill, and three weeks ago his doctor wrote to the DPP informing him that he would be unable to give evidence. Mr Laide's lawyers had indicated they wanted to explore inconsistencies in his evidence through cross-examination, so Dr Cassidy was asked by the DPP to examine the materials on which Prof Harbison's evidence was based and prepare a report, which she did last Friday.
This then differed markedly in its conclusions from that of Prof Harbison. Given the poor health suffered by Prof Harbison, there is now no way these differences can be resolved.
The outcome of the trial raises questions about the resources allocated to the office of the State Pathologist, and the need to provide for circumstances where the State Pathologist is unable to give direct evidence.
At the weekend the Minister for Justice proposed providing for depositions (written evidence) in such cases. While this may satisfy some needs, it does not resolve a situation where the defence perceives contradictions in the evidence it wishes to pursue through cross-examination.
Another answer is to do what was done in this case - ask another pathologist to prepare a report based on the materials collected during the postmortem and surrounding information, and present it to the court, defending it under cross-examination.
However, this carries the danger of different conclusions being reached by the other pathologist, as happened here.
In Scotland the practice is for two pathologists to view a death. They then present a joint report. This has obvious advantages. Possible different interpretations of the physical evidence could be ironed out between them before the report was completed. It would be highly unlikely that one or other would be unavailable to appear in court to present the evidence, even in a retrial.
However, for years here Prof Harbison worked alone, often travelling thousands of miles in a week if more than one suspicious death occurred at opposite ends of the country. Dr Cassidy has an assistant, but has complained about the lack of other resources, including a driver.
In many murder and manslaughter cases, where shootings or stabbings, for instance, are involved, the pathological evidence is not contentious. But in cases like this, where the issue is the intent to injure seriously and the amount of force used, the pathology evidence can be crucial in determining the charges brought. There is no excuse for scrimping on the service.