Court of Appeal finds re-trial in case of unsound pathology evidence would be unfair



The Court of Appeal has upheld a decision of the High Court to restrain the Director of Public Prosecutions from holding a re-trial of Michael Furlong for the murder of Patrick Connors in April 2011.

The trial had commenced on 14th November 2013, but had collapsed dramatically on 18th November, when the DPP received a letter from the State Pathologist, Professor Marie Cassidy, who had serious concerns with regards to the evidence given by the Deputy State Pathologist Dr Khalid Jaber.

Dr Jaber had postulated that the deceased had sustained damage to the ligaments of the upper neck where the base of skull articulates with the upper cervical spine. He had stated that there would have been damage to the upper spinal cord.

However, Professor Cassidy stated that no anatomical evidence existed of such an energy, and that in fact the cause of death in this case was complex and probably comprised blood loss (from scalp wounds), concussion (due to facial injuries), hypothermia and acute alcohol intoxication.

The jury was dismissed, the Prosecution began to assembly additional evidence, and a re-trial was fixed for 12 January 2015.

However, in September 2014 the applicant sought prohibition of a retrial on the basis that in the particular circumstances the same would constitute an “abuse of process” and/or a denial of the applicant’s right to trial in due course of law as provided for under Article 38.1 of the Constitution.

The DPP responded that the applicant was time barred from seeking this order, that a re-trial would not be an abuse of process, and that the respondent was entitled to serve additional evidence in the context of a retrial.

The Court first considered whether the applicant was barred from seeking relief by reason of delay and lapse of time.

Ord. 84, r. 21 of the Rules of the Superior Courts provides that judicial review must be sought within three months from the date when grounds for the application first arose.

However, that could be extended if there was good reason.

The High Court had found that there was good reason, as it was reasonable for the applicant to wait and see if additional material would be furnished, and if a re-trial would actually occur.

The clock therefore had begun to run when the Prosecution had served additional evidence, which occurred in September 2014.

The Court of Appeal agreed with this finding, as it was at this point that the first real sign of a re-trial appeared.

The Court then considered whether a re-trail would be other than in due course of law for the purposes of Article 38.1 or which would otherwise be unfair.

It was acknowledged that that holding a re-trial was not in itself oppressive, as noted in AP v. Director of Public Prosecutions IESC 2, 1 I.R. 729, 736, per Denham J.

Further, the fact that both sides would inevitably know more about each other’s case, and approach the re-trial in light of that knowledge, did not make a re-trial oppressive, as noted in McNulty v. Director of Public Prosecutions IESC 12, 3 I.R. 572, 581.

However, the same case noted that a defendant could apply to restrain a re-trial on the ground of oppression.

The Court of Appeal agreed with Kearns P that this was not an abuse of process case, as the prosecution had done nothing to bring the result about.

Thus, the question was whether a re-trial in the circumstances in which the jury was discharged would be oppressive or unfair or otherwise not in due course of law. In this context the classic authority remained the judgment of Finlay P. in The State (O’Callaghan) v. Ó hUádhaigh I.R. 42.

The ratio of this case was identified as essentially being that special powers vested in the Director of Public Prosecution should not be permitted to be exercised in a manner which would serve to give an unfair advantage to the prosecution as compared with the defence.

Applying this case, the High Court had noted that to allow a re-trial would undoubtedly create an imbalance between the rights of the powers of the prosecution and those of the accused.

The Court of Appeal agreed, finding that viewed objectively the actions of the prosecution counsel in applying to have the jury discharged could only be interpreted as an endeavour to ensure that the difficulties for the prosecution caused by reason of Professor Cassidy’s letter (and the consequential implications for Dr Kabir’s evidence) were somehow circumvented.

As observed by Justice Gerard Hogan:

“The effect of the prosecution’s actions was to bring about a result where a duly empanelled jury would not be required to give a verdict against a backdrop of what, from the standpoint of the prosecution, amounted to an evidential fiasco.”

“In seeking a re-trial, the prosecution claimed for itself – whether intentionally or otherwise - a power which was not available to the defence.”

“For all of these reasons, therefore, we agree with the decision of Kearns P. to grant an order restraining the Director of Public Prosecution from proceeding with this prosecution. As the Court believes that Kearns P. was entirely correct in both his reasons and the conclusion which he reached, we would accordingly dismiss the Director’s appeal both for those reasons and for the reasons given in this judgment.”

  • by Rachel Killean for Irish Legal News