Furlong v Director of Public Prosecutions

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 20 April 2016
• Neutral Citation: [2016] IECA 114
• Docket Number: 2015 No. 300,[C.A. No. 300 of 2015]
• Court: Court of Appeal (Ireland)
• Date: 20 April 2016

Finlay Geoghegan J.

Hogan J.

Mahon J.

BETWEEN/

MICHAEL FURLONG

APPLICANT/RESPONDENT

- AND -

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/APPELLANT

[2016] IECA 114

2015 No. 300

THE COURT OF APPEAL

Murder ? Retrial ? Right to trial in due course of law ? Appellant seeking to proceed with the retrial of the respondent ? Whether a retrial would compromise the respondent?s right to a trial in due course of law

Facts: The respondent, Mr Furlong, was charged with the murder of one Mr Connors at Carraig Tur apartments in Enniscorthy, Co. Wexford on a date between the 28th and the 29th April, 2011. The trial commenced in the Central Criminal Court on the 14th November, 2013. Following receipt of a letter dated the 14th November, 2013 sent by the State Pathologist, Professor Cassidy, the appellant, the DPP, immediately disclosed its existence to the defence and furnished a copy to the respondent. When the trial resumed on the 18th November, 2013, the respondent brought the letter to the attention of the court, submitting that in the light of its contents, it would be unsafe to allow the case to go to the jury and, accordingly, that the court should direct a verdict of not guilty. In response, the prosecution accepted that they could no longer rely on the evidence of Dr Jaber, the then Deputy State Pathologist who conducted the post?mortem on the deceased, as to mechanism of death, but applied instead to have the jury discharged. That application was acceded to by the trial judge. The Central Criminal Court fixed the 12th January, 2015 as the date for the retrial of the?respondent. On the 24th November, 2014, leave to seek judicial review was sought by the respondent. He sought the 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 his right to trial in due course of law as provided for under Article 38.1 of the Constitution. The appellant submitted that the respondent did not seek an order prohibiting his trial within the time limit provided for by the Rules of the Superior Courts. The appellant also contended that a retrial would be a trial in due course of law for the purposes of Article 38.1 and that the trial judge acted appropriately in discharging the jury and in adjourning the matter to the next list to fix dates. It was additionally argued that the appellant was entitled to serve additional evidence in the context of a retrial and, if there was any unfairness to the respondent by reason of its service, it was within the power of the trial judge to make appropriate rulings and directions to ensure a fair trial. On the 7th May, 2015, Kearns P restrained the appellant from proceeding with the retrial of the?respondent. The appellant appealed to the Court of Appeal against that decision.

Held by Hogan J that the later date of September 2014, rather than the earlier date of December 2013, was the effective date for the purposes of the running of time for the Rules of the Superior Courts Ord. 84 purposes; no new trial could have proceeded without the service of a fresh pathology report. Hogan J held that as time ran from that date, then the proceedings which commenced with an application for leave in November 2014 were within time. Applying Sirbu v DPP?[2015] IECA 238, Hogan J acknowledged that any retrial would be unfair or oppressive because of the particular stage of the trial at which the jury came to be discharged. Hogan J held that to permit the prosecution to obtain an advantage from the collapsed trial by allowing it to re?make entirely a vital aspect of their case would be inherently unfair and entirely at odds with the principles articulated in?The State (O?Callaghan) v O hUádhaigh [1977] IR 42.

Hogan J held that he agreed with the decision of Kearns P to grant an order restraining the DPP from proceeding with the prosecution. The Court accordingly dismissed the Director?s appeal.

Appeal dismissed.

JUDGMENT of the Court delivered by Mr. Justice Gerard Hogan on the 20th day of April 2016

1 This is an appeal taken by the Director of Public Prosecutions against the decision of Kearns P. delivered on 7th May 2015: see Furlong v. Director of Public Prosecutions [2015] IEHC 269. As a result of that decision the Director was restrained from proceeding with the re-trial of the applicant in respect of a prosecution for murder. As Kearns P. himself recognised in his judgment, the circumstances of this case are highly unusual and virtually unique in the annals of Irish criminal law and procedure.

2 The applicant, Mr. Furlong, was charged with the murder of one Patrick Connors at Carraig Tur apartments in Enniscorthy, Co. Wexford on a date unknown between 28th and 29th April 2011. The trial of the appellant had commenced in the Central Criminal Court on 14th November 2013 and had continued until 18th November 2013 when the jury were discharged and the trial collapsed in rather dramatic circumstances.

3 What had happened was this. The body of Mr. Connors had been found lying in a communal stairway inside an apartment building in Enniscorthy on the morning of 29th April 2011. At the time Mr. Furlong had been living in apartment number 6 and it was common case that he and the deceased were together in the apartment on the night before Mr. Connors died.

4 A post-mortem on the deceased had been conducted by Dr. Khalid Jaber, the then Deputy State Pathologist. Dr. Jaber found the deceased had sustained a number of injuries which included two significant scalp wounds and bi-lateral jaw fractures. He stated that the cause of death was ?sharp and brunt force trauma? to the head (and neck)? and ?acute alcohol intoxication?. Dr. Jaber added that the sharp and brunt force trauma resulting in the scalp wounds were likely to have been caused by two separate knives. The blunt force trauma which had caused the bi-lateral jaw fractures had also resulted, in his opinion, in a subluxation injury to the ligaments of the neck with resulted damage to the upper spinal cord. Dr. Jaber considered that these injuries were most likely caused by a direct blow to the side of the face.

5 It must be said that Dr. Jaber's evidence regarding the cause of death was strongly contested by the defence. A number of propositions were put to Dr. Jaber in cross-examination in relation to this very issue. First, it was suggested that the scalp wounds could have been self inflicted and in this regard the witness was referred to various remote scars found on the body of the deceased and the medical records which indicated a history of self harm. Second, it was put to Dr. Jaber that the bilateral jaw fractures and any associated neck injury could have been sustained in a fall directly on the hard surface of the stairs in the circumstances where the deceased had become weak and disorientated from blood loss and intoxication. Third, it was suggested that hypothermia was a causative factor in the death of Mr. Connors. Dr. Jaber rejected all of these propositions.

6 Following the close of the prosecution case the defence went into evidence. The defence pathologist, Dr. Declan Gilsenan, stated that, in his opinion, death was due to a combination of blood loss (hypoxic ischemia) from scalp wounds, intoxication of alcohol and drugs and hypothermia. As it happens, Dr. Gilsenan was never cross-examined on his direct evidence, as the prosecution had initially sought time within which to take instructions from Dr. Jaber in relation to certain matters raised in the evidence of Dr. Gilsenan. On the following day, however, further time was sought in order to take instructions arising out of a particular development in the case and the trial was accordingly adjourned to Monday, 18th November, 2013.

7 The particular development in question was a letter dated the 14th November 2013 which had been sent to the Director of Public Prosecutions by the State Pathologist, Professor Marie Cassidy. The letter was in the following terms:

?It is my duty as State Pathologist to bring to your attention my concerns re the report and opinion of Dr. K. Jaber regarding the death of Patrick Connors. The case came to my attention while I was attending the Central Criminal Court on 13th November giving evidence in a trial. I noticed Dr. Jaber was to give evidence and took the opportunity to see him give evidence. I only heard the last few minutes of the cross-examination and the re-examination. However, this was sufficient to cause me some concern. I was unfamiliar with the case, despite having instructed that all homicide cases undertaken on behalf of the State must be peer reviewed. My colleagues, Dr. M. Curtis and Dr. M. Bolster, have since reviewed this report and share my concerns.

In his report, Dr. Jaber described two incised wounds to the scalp and a fractured mandible. The internal examination was largely unremarkable and there was no evidence of internal trauma. Toxicology showed that he was intoxicated by alcohol and drugs (Diazepam, Quetiapine). Expert opinion was sought from Professor Michael Farrell on sections of spinal cord and brain tissue. While we are in agreement that Mr. Connor's injuries are more likely the result of an assault, my main concern is Dr. Jaber's opinion regarding the mechanism of death.

1. With regard to the mechanism of death, Dr. Jaber has postulated that the deceased had sustained damage (subluxation) to the ligaments of the upper neck where the base of skull articulates with the upper cervical spine. He states that there would have been damage to the upper spinal cord.

There is no anatomical evidence of such an injury in the text of the post-mortem report, save for a reference to perceived increased mobility of the neck. Furthermore, the spinal cord was examined microscopically by Professor Michael Farrell, Consultant Neuropathologist, who reported no evidence of...