Couple found guilty of killing MS sufferer by neglect move to appeal convictions
Published 06/10/2015 | 18:04
A couple found guilty of unlawfully killing by neglect a 59-year-old MS sufferer have moved to appeal their convictions.
Evelyn Joel's 41-year-old daughter, Eleanor, and her partner Jonathan Costen (43), with last addresses at Cluain Dara, Enniscorthy, pleaded not guilty to the unlawful killing of Evelyn by neglect in Co Wexford in January 2006.
Following a retrial, they were found guilty by a jury at Wexford Circuit Criminal Court and were given a two year suspended sentence on condition they carry out 230 hours of community service by Judge Seán O'Donnabháin in March 2013.
The pair moved to appeal their convictions today on a number of grounds involving negligence of others including the HSE, true cause of death, the trial judge's refusal to transfer the retrial out of Wexford despite “shocking” local newspaper reports, the trial judge's replacement of a juror in the absence of defence solicitors as well as the question of Costen's duty of care to Mrs Joel.
Counsel for Eleanor Joel, Rosario Boyle SC, said that during the 14 months Mrs Joel stayed in her daughter's home, she was a patient of the HSE public heatlh nurses and her GP.
The care of Mrs Joel was their legal and professional responsibility during that time, Ms Boyle said. They knew she had a serious disease and knew that Eleanor Joel “wasn't coping” but left the patient there without assisting her for four months.
Despite being aware in early September 2005 that Mrs Joel's health had declined significantly, the only thing her professional carers did for her was to leave incontinence nappies behind the wheelie bin in Eleanor Joel's house, Ms Boyle said.
However, the jury were told to not consider whether the HSE were negligent or not, Ms Boyle submitted.
Counsel further submitted that the jury's verdict was annuled by depriving her client's solicitor the chance to challenge a juror when one of the original 12 jurors was discharged and another sworn in.
Counsel for Costen, John O'Kelly SC, submitted that Costen had no duty of care to Evelyn Joel such as a blood relationship, contractual relationship or voluntary duty of care.
Despite that, Mr O'Kelly submitted, the trial judge misstated Costen's defence to the jury and effectively told them that the accused had assumed a duty of care and was trying to get out of it.
Costen “never wanted her” in the house, according to Mr O'Kelly. “He said repeatedly, because of her condition, (that) they couldn't cope and she should be in hospital. He kept asking her to leave,” Mr O'Kelly said.
He said Evelyn Joel was a strong, independent woman who didn't like doctors and did not like hospitals. At one stage she had thrown the forms for an old folks home back at them, Mr O'Kelly said.
Counsel further submitted that the trial judge erred in refusing to transfer the case out of Wexford when just 12 months previously they had endured a very long trial out of which came a considerable amount of local and highly prejudicial publicity.
The local reportage of the first trial was “shocking”, Mr O'Kelly said.
The idea of a woman – Mrs Joel – being brought to hospital weighing 3 stone, as was inaccurately reported at the time, he said, looking like somebody out of Belsen was so shocking that it was impossible to obtain a neutral jury in Wexford for the couple's retrial.
Counsel for the Director of Public Prosecutions, Justin Dillon SC, said the judge's refusal to transfer the case out of Wexford was not appealable and the mathematics of an 11-1 verdict were against the appellants' submission that they were deprived a chance to challenge a juror.
Mr Dillon said there came a point when a duty of care towards Mrs Joel arose for Costen.
Mrs Joel was helpless, she was childlike, and when Costen saw her he knew she needed help. He acknowledged during garda interviews that he should have acted and believed she was not going to survive beyond Christmas, counsel said.
All of this was happening under his roof and he could have called an ambulance, Mr Dillon said.
Likewise, if Eleanor Joel “had made a phone call we would not be here today,” counsel said.
Mr Dillon further submitted that there was not just local reporting of the case but nationwide coverage and the first jury could not have been influenced by adverse publicity because they could not reach a verdict.
Ms Boyle and Mr O'Kelly will make replying submissions before Mr Justice George Birmingham, Mr Justice Garrett Sheehan and Mr Justice Alan Mahon tomorrow.