The People (Director of Public Prosecutions) v Joel

JurisdictionIreland
JudgeMr. Justice Birmingham
Judgment Date04 March 2016
Neutral Citation[2016] IECA 120
CourtCourt of Appeal (Ireland)
Docket Number[C.A. Nos. 83 & 94 of 2015],Appeal No. 94/13 83/13
Date04 March 2016

[2016] IECA 120

THE COURT OF APPEAL

Birmingham J.

Appeal No. 94/13

83/13

Birmingham J.

Sheehan J.

Mahon J.

The People at the Suit of the Director of Public Prosecutions
Respondent
V
Eleanor Joel

and

Jonathan Costen
Appellant

Crime & sentencing ? Manslaughter ? Neglect ? Elderly parent of appellant ? Appeal against sentence

Facts: The appellants had been convicted in Wexford of the manslaughter of the first appellant?s mother. The death was alleged to have been caused by neglect in the care of the mother. The appellants now appealed against conviction, the DPP separately seeking to appeal the sentences on the basis of undue leniency.

Held by Mr Justice Birmingham, that the appeals would be allowed. The Court was persuaded that the trial of the appellants was flawed on a number of grounds. Firstly, the trial should have been transferred to Dublin, given the pre?trial publicity and the emotive nature of the allegations. Secondly, the first appellant?s lawyer was not present during a substitution of a juror. Thirdly, the test for causation had become confused which may have impacted on the jury?s consideration of the case. Finally, in respect of the second appellant, the prosecution had failed to proof that he had assumed responsibility for care of the deceased.

Judgment of the Court delivered on the 4th day of March 2016 by Mr. Justice Birmingham
1

On the 7th December, 2012, the appellants were each convicted at Wexford Circuit Court of the manslaughter of Evelyn Joel. The verdicts were by a majority of 11 to 1. Both now appeal against their conviction. On the 4th March, 2013, each appellant was sentenced to two years imprisonment which was suspended on condition that they perform 240 hours community service. The Director of Public Prosecutions has sought a review of the sentences imposed on grounds of undue leniency. However, this judgment deals with the conviction aspect only.

2

The background to this case is that the appellants lived together at Cluain Dara, Enniscorthy, with their two children who were aged twelve years and nine years at the date of trial. On or about the 23rd November, 2004, Evelyn Joel, mother of the appellant Eleanor Joel moved in to Cluain Dara. It appears that the expectation initially was that this would not be a long term arrangement, but would last until Evelyn was offered suitable accommodation by the Local Authority. Accommodation was required because Evelyn Joel was suffering from advanced primary progressive multiple sclerosis which had been diagnosed in 2000. Following the diagnosis, the appellant was offered a long term hospital bed in Wexford General Hospital, but she refused this, instead going to live with Alf Joel, her brother in law. She was estranged from her husband Billy Joel and when Alf became ill, Evelyn Joel moved to Cluain Dara. However, any expectation that her stay in Cluain Dara would be short term was not realised and she remained there for some fourteen months.

3

In December 2005, her condition deteriorated and she was admitted by ambulance to hospital in Wexford on the 1st January, 2006. The ambulance personnel who were called to Cluain Dara at the behest of Phyllis Costen, mother of the appellant Jonathan Costen, were greatly disturbed at the condition in which they found their patient. Ms. Eleanor Joel had asked Mr. Costen's mother to come to the house to assist. The ambulance personnel found the patient in very poor condition, the bed that she was lying in was filthy, due the fact that she was doubly incontinent and her lower body was covered in faeces. She had extensive bed sores which were infected. On admission to hospital, she was bathed, her bed sores were attended to, she was provided with antibiotics to which she responded.

4

Following admission, she initially made progress in response to treatment, but unfortunately while in hospital she developed pneumonia. On the 7th January, 2006, Evelyn Joel died in Wexford General Hospital. Following on from the death of Evelyn Joel, both appellants were charged with manslaughter and the case advanced against them was that her death was due to their neglect while she was living in their home.

5

A number of grounds of appeal have been advanced in written and oral submissions. These might be summarised as follows:-

- An issue about the trial venue and the failure to accede to an application to transfer the case.

- An issue arising from the substitution of one juror by another.

- Issues in relation to causation, there are two submissions here, one identifying the threshold that the prosecution must meet and secondly whether the evidence in the case met the identified threshold.

- An issue about the relevance of the negligence of others and how this was dealt with by the trial judge.

- A subsidiary issue relates to the adequacy of the investigation that was carried out.

- A further issue which was specific to the appellant Jonathan Costen relating to the question of whether a duty of care existed.

The failure to transfer
6

On the 2nd October, 2012, the appellants made an application to the judge to whom the case was then assigned, His Honour Judge Hickson. There were a number of aspects to the application to transfer:

(i) That this was a re-trial and that the original trial which ran between October and December 2011, had received massive coverage in the local Wexford media over a seven week period.

(ii) The fact that the coverage of the first trial contained many references to the deceased having been starved and refused water, as well as other coverage that was now highly prejudicial. That evidence had emerged in a situation where both accused had initially faced a charge of reckless endangerment, but those charges were withdrawn from the jury at the close of the prosecution case. These issues were not expected to feature during any re-trial.

(iii) Concerns arising from the fact that it was the appellant's defence that neglect and inadequacies on the part of the HSE, and in particular local HSE services in Wexford, and/or the two local housing authorities involved Wexford County Council and Enniscorthy Town Council, caused the death of Mrs. Joel or contributed to a very substantial extent to it. The actions of many employees of the HSE and of the local authorities would come under scrutiny.

7

The trial judge refused the application to transfer. In the course of this ruling he indicated that the reporting had in general been accurate and that there had been no particular victimisation of the accused by members of the public. He indicated that what concerned him was the media coverage arising from the count of reckless endangerment. He indicated that it occurred to him that it would be:

?Unwise and unsafe not to advise a jury, be they in Wexford or in Dublin that initially such a count was preferred against both defendants and then directed. It would be a risk to avoid mentioning it all together. That being so it seems to me that whether the trial takes place in Wexford or in Dublin, a judge will be obliged to direct a jury in relation to that issue and of course to properly charge then in relation to that issue.?

8

Section 32 of the Courts and Courts Officers Act 1995, deals with the question of transfers. The section so far as material provides:-

?32(1) Where a person (in this section referred to as ?the accused?) has been sent forward for trial to the Circuit Court, sitting other than within the Dublin Circuit, the judge of the Circuit Court before whom the accused is triable may, on the application of the prosecutor or the accused, if satisfied that it would be manifestly unjust not to do so, transfer the trial to the Circuit Court sitting within the Dublin Circuit and the decision to grant or refuse the application shall be final and unappealable.?

9

The parties are in disagreement about the significance of the phrase ?the decision to grant or refuse the application shall be final and unappealable?. The respondent says that the statement is an absolute one and an unqualified one and that it precludes any appeal at this stage from the decision of Judge Hickson. However, the appellants say that the effect of the section is simply to clarify that there is no possibility of a stand alone appeal and to ensure that once a judge has made a decision whether to transfer or to refuse to transfer, that the trial will then proceed.

10

The Court is of the view that the interpretation contended for by the appellants is the correct one. A decision in relation to the venue may be of fundamental importance. It would be unacceptable if a party who felt that they had been adversely affected by a decision in relation to venue were precluded from raising the issue in a post conviction appeal. There are two matters to which the Court will draw attention. The reference to ?grant or refuse the application? is suggestive of an approach that precludes stand alone appeals after the decision to transfer or refuse is made. The concern seems to be that matters should proceed to trial without further delay. There is a further point, the section refers to the decision being ?final?. A literal interpretation of the word ?final? would appear to prevent a judicial review, but there have been judicial reviews. (See by way of example the case of Todd v. Judge Murphy [1999] 1 ILRM 261). In those circumstances, the Court believes that it has jurisdiction to entertain the appeal on this ground. However, the language of the section and in particular the phrase ?the judge may transfer if satisfied that it would be manifestly unjust not to do so?, does not mean that transfers will be granted lightly, quite the contrary in the first instance. It is absolutely clear if there is an appeal, the situation is one where very particular...

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4 cases
  • DPP v Roche, Roche, & Freeman
    • Ireland
    • Court of Appeal (Ireland)
    • 19 December 2019
    ...discretion in favour of the appellant and transferred the trial to Dublin. The appellant refers to The People (DPP) v. Joel and Costen [2016] IECA 120 where the Court of Appeal found that there were compelling reasons for transferring the trial, however, Mr Clarke SC for the appellant befor......
  • DPP v Gavin Sheehan
    • Ireland
    • Court of Appeal (Ireland)
    • 25 May 2020
    ...material obtained by the gardaí had been furnished or made available for viewing. 15 Reliance has been placed upon DPP v. Joel & Anor. [2016] 2 IR 363 by the appellant. There, the appellants were charged with the manslaughter of the first appellant's mother to put the matter shortly, by gro......
  • DPP v O'Loughlin
    • Ireland
    • Court of Appeal (Ireland)
    • 23 March 2021
    ...The appellant refers to the substantial cause test which was referred to by Birmingham J. (as he then was) in The People (DPP) v. Joel [2016] 2 IR 363 where he was of the view that in a manslaughter case, the test of de minimus is inadequate and instead, a jury ought to be directed on wheth......
  • DPP v Thomas Berry
    • Ireland
    • Court of Appeal (Ireland)
    • 4 May 2017
    ...trial to Dublin. 9 On this issue, the appellant places reliance on a recent decision of this Court in the case of DPP v. Joel and Costen [2016] IECA 120, which, as it happened, also involved a request for a transfer of a trial from Wexford Circuit Court to Dublin. Delivering the judgment of......

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