DPP v Tighe
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 24 March 2023 |
| Neutral Citation | [2023] IECA 83 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 111/2018 |
[2023] IECA 83
The President.
Edwards J.
Kennedy J.
Record Number: 111/2018
THE COURT OF APPEAL
Crime & sentencing – Murder – Murder of infant son – Father’s appeal against conviction
Facts: The appellant had been convicted of the murder of his infant son at the Central Criminal Court in 2018. The conviction followed the death of the infant by asphyxiation due to a foreign object in his throat. The appellant now sought to challenge his conviction regarding the admission of extracts from the report of the Deputy State Pathologist.
Held by the Court, that the appeal would be dismissed. The Court was not persuaded that the trial Judge had failed to engage with the issue of fairness in respect of the inability to cross-examine the Deputy State Pathologist. Further, the appellant’s rights to natural and constitutional justice could not be said to have been infringed.
JUDGMENT of the Court delivered on the 24 th day of March 2023 by Ms. Justice Isobel Kennedy.
This is an appeal against conviction. On the 23 rd March 2018 at the Central Criminal Court, the appellant was convicted of the murder of his infant son and accordingly, sentenced to life imprisonment. The cause of death of the infant was asphyxiation due to a foreign object in the throat thus blocking the infant's airway. The obstruction was an egg-shaped bolus of tissue.
On the 1 st June 2013, the appellant was alone in the house with his six month old son. He described that following the changing of his son's nappy, he left him on a changing unit while he visited the bathroom. He told Garda Ryan at the scene, that when he returned from the bathroom, the infant was quiet and finding it difficult to breathe. He said he thought the baby might have swallowed a baby wipe.
The appellant called a local doctor and received no answer, he then called another doctor, and the phone rang out. While doing so, he placed a finger in the baby's mouth and felt an obstruction. He got through to Westdoc who gave him advice and assistance over the phone. He told Westdoc that he thought a baby wipe might have been obstructing the deceased's throat. The emergency services and a doctor were contacted. The GP who attended at the scene attempted to suction the obstruction from the deceased's throat to no avail. An ambulance crew arrived and attached a defibrillator to the deceased but were unable to detect any activity. He was pronounced dead at the scene. Garda Ryan noticed what appeared to be a bloodstain on the floor leading to the kitchen and baby's clothing in the hallway which seemed to have some blood staining on it.
A post-mortem examination was carried out by Dr. Khalid Jaber, who was Deputy State Pathologist at the relevant time. In the usual way, this examination was conducted in the presence of members of An Garda Síochána. A wad containing one 2-ply and one 3-ply tissue was recovered from the deceased infant's throat. Dr. Jaber was out of the jurisdiction at the time of the trial and unwilling to return to give evidence. The trial judge acceded to an application to admit evidence from Dr. Roger Malcomson, Consultant Paediatric and Perinatal Pathologist at the Royal Leicester Infirmary, relating to the cause of death. This, in effect forms the basis of this appeal.
At trial, it was the respondent's case that an infant of the deceased's age and level of development would not have been capable of fashioning an obstruction of this nature from tissue paper nor could he have grasped it and placed it in his mouth, nor could he have swallowed it in such a way that it would not have been visible to the doctor who attended the scene. Expert evidence was adduced in support of this position.
The appellant and the deceased's mother had been in a relationship but were separated at the time of the offence. In his statement, the appellant described that the deceased's mother had announced a new relationship on Facebook the day prior to the offence.
On the 17 th June 2014, the appellant was interviewed and he set out his practice for changing the deceased's nappy. He stated that he would take out some baby wipes before removing the nappy and that while changing the deceased, he would scrunch them up and throw them to one side or into the soiled nappy on the floor. He further stated that the deceased was suffering from nappy rash at that time and that he would use tissues to apply sudocrem to this rash. The tissues would have been wedged between the changing mat and the frame of the changing unit beside the deceased's head. Similar to the wipes, the tissues would be rolled up and thrown to the right or dropped to the floor.
On the 23rd July 2015, following his arrest, when asked as to how a 6 month old child could put two tissues into his mouth, the appellant stated that: “ They must have been pre-balled up” because he would “ take them, scrunch them up, put them together and put them down in the gap between the mat and the edge of the unit.”
The appellant's appeal centres on the admission of extracts from Dr. Jaber's report and the evidential consequences thereof. He relies on grounds 1–6 inclusive in the notice of appeal which Mr. Dockery SC for the appellant helpfully distilled into three categories.
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(1) In admitting extracts from Dr. Jaber's report, the trial judge misapplied or misinterpreted the provisions of sections 5 and 8 of the Criminal Evidence Act 1992. The argument is advanced that the report ought not to have been admitted as it is said the witness was not compellable as he was abroad and/or that the report was either a record or anything but a record; rather a complete report of an examination containing opinions. The appellant also raises an issue of fairness under s. 8(2)(c).
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(2) The admission of the report had the effect of placing crucial evidence beyond the reach of cross-examination, thereby depriving defence counsel of the opportunity to cross-examine Dr. Jaber in breach of the principle of audi alteram partem and the appellant's right to natural and constitutional justice.
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(3) (i) The admission of the evidence of Dr. Roger Malcomson which was based on a review of Dr. Jaber's report, crime scene photographs, autopsy photographs, the book of evidence and histology slides. He therefore had to rely on the untested findings of Dr. Jaber in order to come to his conclusions.
(ii) An ancillary issue arises that Dr. Malcomson gave evidence beyond the cause of death which evidence went to the ultimate issue for the jury.
It is contended that Dr. Jaber was not compellable as he was outside of the jurisdiction and therefore the trial judge ought not to have admitted the extract from his report.
Insofar as s. 5(4)(b)(iv) is concerned, it is said that the reported findings of Dr. Jaber did not constitute a “record” for the purposes of s. 5(4)(b)(iv) of the Act and, as such, were inadmissible. S. 5(4)(b)(iv) of the 1992 Act provides for an exception to the rule against hearsay in the case of “a record by a registered medical practitioner of an examination of a living or dead person.”
Reliance in this regard is placed on the case of Bovale Developments Ltd v Director of Corporate Enforcement [2008] 2 ILRM 13 wherein Irvine J., in considering the admissibility of a tribunal report held as follows:
“Whilst the applicant may be correct that the hearsay rule and its exceptions are not set in stone, the court is driven to conclude that if the legislature intended that findings made by tribunals of inquiry could be admitted as evidence of the truth of the facts supporting those findings in subsequent proceedings, either civil or criminal, or that any evidential weight could be attached thereto, that the legislature would have so provided.”
It is further submitted that the trial judge misinterpreted and/or misapplied s. 8(2)(a) and 8(2)(c) of the 1992 Act by admitting the reported findings of Dr. Jaber. These sections provide as follows:
“(2) In considering whether in the interests of justice all or any part of such information ought not to be admitted in evidence the court shall have regard to all the circumstances, including—
(a) whether or not, having regard to the contents and source of the information and the circumstances in which it was compiled, it is a reasonable inference that the information is reliable,
[…]
(b) any risk, having regard in particular to whether it is likely to be possible to controvert the information where the person who supplied it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them.”
In terms of reliability, particular attention is drawn to the portion of Dr. Malcomson's report in which in reference to the reported findings of Dr. Jaber he states that:
“The availability of a post-mortem CT scan would, in my view, have significantly improved the documentation and visualisation of the position of the airway obstruction and it is likely that it would have provided useful imagery that would have been available for use in court proceedings.”
In terms of unfairness, it is submitted that the appellant was unfairly deprived of the opportunity to confront and cross-examine Dr. Jaber on his report and methodology.
The respondent outlines that the issue of the admissibility of Dr. Jaber's report pursuant to the 1992 Act was argued in detail over two days at trial and that the trial judge considered the issue overnight before delivering a comprehensive ruling, carefully applying the relevant sections of the Act.
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