Michael Furlong v DPP

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 07 May 2015
• Neutral Citation: [2015] IEHC 269
• Court: High Court
• Date: 07 May 2015

[2015] IEHC 269

THE HIGH COURT

[No. 688 JR/2014]

Furlong v DPP

JUDICIAL REVIEW

BETWEEN

MICHAEL FURLONG

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Crime & sentencing – Murder – Cause of death – Retrial – Time limit for an order prohibiting retrial – O. 84, r. 21 of the Rules of the Superior Courts.

Facts: The applicant was charged with homicide. Following the first trial, the jury was discharged after the intervention of the State Pathologist questioning the correctness of the materials of the Deputy State Pathologist's analysis of cause of death. The retrial of the applicant was called for in the proceedings. The applicant sought an order for leave to seek judicial review prohibiting the retrial as it constituted an 'abuse of process.' It was contended that there was a delay in filing the request.

Mr. Justice Kearns P held that an order for leave to seek judicial review prohibiting the retrial would be granted. The Court held that the matter in the present case did not constitute a trial in 'due course of law.' The Court held that allowing the retrial of the applicant in the present case and circumstances would be oppressive on the applicant and it would create a conflict between the powers of the prosecution and the accused. The Court rejected the argument of the prosecution that the State Pathologist's questioning of the correctness of the materials of Deputy State Pathologist's analysis of cause of death was not 'evidence.' The Court held that the facts and circumstances of the case reasonably fell within the ambit of the requirements of O.84, r. 21 of the Rules of the Superior Courts.

1 JUDGMENT of Kearns P. delivered on the 7th day of May, 2015

2 It is probably an understatement of significant proportion to say that the facts of this case are unusual. The applicant was charged with the murder of Patrick Connors at Carraig Tur Apartments in Enniscorthy on a date unknown between the 28 ^th and 29 ^th April, 2011. The trial of the applicant commenced in the Central Criminal Court on the 14 ^th November, 2013 and continued until the 18 ^th November when the jury were discharged on the application of the prosecution arising out of a dramatic intervention in the proceedings by State Pathologist, Professor Marie Cassidy. She was not the pathologist who had given evidence at the trial as to cause of death, such evidence having been given by Deputy State Pathologist, Dr. Khalid Jaber. At the time of Prof. Cassidy's intervention, the defence had gone into evidence and had called their own pathologist, Dr. Declan Gilsenan, who disagreed significantly with Dr. Jaber in relation to the cause of death.

3 From the material put before this Court, it appears that Prof. Cassidy happened upon the murder trial in the Criminal Courts of Justice as she had been in a nearby court. She heard only a "few minutes" of the evidence but was sufficiently concerned to write to the respondent concerning Dr. Jaber's evidence and raised an issue as to its correctness in certain material respects.

4 Before detailing the contents of Professor Cassidy's letter, the following brief account sets out the disputed factual issues as to cause of death. The body of Mr. Connors was found lying in a communal stairway inside the apartment building in Enniscorthy on the morning of the 29 ^th April, 2011. At the time, the applicant was living in Apartment No. 6 and it was common case that both he and the deceased were together in the apartment on the night before Mr. Connors died.

5 The post-mortem on the deceased was conducted by Dr. Khalid Jaber, then Deputy State Pathologist, who found the deceased had sustained a number of injuries which included two significant scalp wounds and bilateral jaw fractures. He stated that the cause of death was "sharp and blunt force trauma to the head (and neck)" and "acute alcohol intoxication". The sharp force trauma resulting in the scalp wounds were likely, in his view, to have been caused by two separate knives which were located in the kitchen sink of apartment No. 6. The blunt force trauma had caused the bilateral jaw fractures and had also resulted, in his opinion, in a subluxation injury to the ligaments of the neck with resultant damage to the upper spinal cord. In the opinion of Dr. Jaber, these injuries were most likely caused by a direct blow to the side of the face.

6 There was a considerable measure of disagreement between the prosecution and the defence not only in relation to cause of death but more particularly in relation to the means by which the various injuries had been sustained. In cross-examination, a number of propositions were put to Dr. Jaber in relation to the injuries which included: (a) that the scalp wounds could have been self inflicted (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); (b) 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 was weak and disorientated from blood loss and intoxication; and (c) that hypothermia was a causative factor in the death of Mr. Connors.

7 It should be said that Dr. Jaber firmly disagreed with these propositions. Following the close of the prosecution case, evidence was given on behalf of the applicant by Dr. Declan Gilsenan who offered as his opinion that death was due to a combination of blood loss (hypoxic ischemia) from scalp wounds, intoxication of alcohol and drugs and hypothermia. Dr. Gilsenan was never cross-examined as the prosecution 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, further time was sought in order to take instructions arising out of a development in the case and the trial was adjourned to Monday, 18 ^th November, 2013.

8 The development in question was a letter or report sent to the respondent by the State Pathologist, Professor Marie Cassidy, dated the 14 ^th November, in which she wrote as follows:-

"14 ^th November, 2013"

Mr. Liam Mulholland,

9 Head of Superior Court Section,

10 Office of the Director of Public Prosecutions,

11 90 North King Street,

12 Smithfield,

13 Dublin 7

14 Dear Mr. Mulholland,

15 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 13 ^th 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.

16 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.

17 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.

18 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.

19 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.

20 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 injury, only the presence of artefactual changes.

21 Dr. Jaber continues to advance his hypothesis of spinal injury at this site on the basis of expected changes on radiological imaging. However, reading of the post-mortem report reveals that no such radiological investigation was ever carried out.

22 2. Dr. Jaber postulates that this injury was caused by a blow to the jaw. Indeed, he identified two fractures of the mandible, both with surrounding bruising in the soft tissues, which he correctly attributes to blows to either side of the face. This would not be a likely mechanism for the hypothetical neck injury.

23 3. The post-mortem report does not include a section regarding the history or background information to the case. There is no mention of the amount of blood present at the scene of death. Dr. Jaber does say that the two scalp wounds would have bled profusely. This profuse haemorrhage, in all probability, would have made a significant contribution to his death. Also to be taken into consideration is the likelihood of hypothermia; allegedly, Mr. Connors had lain outside, injured, for a period of several hours overnight, in an ambient temperature of 5 degrees Celsius.

24 4. The cause of death in this case is complex and most probably multifactional. The relevant factors include blood loss (from the scalp wounds), concussion (due to facial injuries), hypothermia and acute alcohol intoxication.

25 Yours sincerely,

26 Signature

27 Prof. Marie Cassidy

28 State Pathologist"

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