Saturday 1 October 2016

Pathologist rails against Court of Appeal criticism

Former deputy state pathologist insists he acted correctly despite quashing of murder conviction

Published 16/08/2015 | 02:30

Dr Khalid Jaber
Dr Khalid Jaber

The former deputy state pathologist, Dr Khalid Jaber, has issued a robust defence of his actions in the trial of a man whose murder conviction was subsequently quashed and reduced to manslaughter.

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Dr Jaber (57) was heavily criticised earlier this summer by the Court of Appeal over the manner in which he presented pathology evidence in the trial of Limerick man Kevin Coughlan.

The court found his evidence had led to an unsatisfactory trial, and it downgraded the conviction.

It was the second major controversy to erupt over Dr Jaber's professional conduct since his resignation in 2013 following a high-profile spat with his boss, Professor Marie Cassidy. Last May, the High Court ordered that a retrial in a separate homicide case could not take place after it emerged Dr Jaber had not subjected his post-mortem findings to a peer review.

Breaking his silence on the criticism of him by the Court of Appeal, Dr Jaber told the Sunday Independent he was "confident" he had acted correctly.

Contacted in his native Saudi Arabia, where he now holds a senior position with the ministry of health, Dr Jaber said that despite the court's concern about his evidence, he believed justice had been done.

"The family of the killed person can still feel comfortable that their beloved's life was not wasted without justice being served," he said.

However, Dr Jaber would not say if he was aware of any other murder cases being appealed in relation to his evidence.

Coughlan (32) had been given a life sentence in 2011 for murdering Francis Greene, who died after being forced into the River Shannon at Steamboat Quay in Limerick.

The body of 48-year-old Mr Greene was found near Cratloe, Co Clare, in February 2010, six weeks after he went missing from his home in Limerick city.

In the witness stand during the trial, Dr Jaber said he believed Mr Greene may have been strangled before he ended up in the river - a conclusion of which the defence team said it had not previously been made aware.

The appeal court said "serious complications" were presented by Dr Jaber's evidence and quashed the murder conviction.

However, it found the accused guilty of manslaughter as this had been conceded by the accused. A sentencing hearing will now take place in October.

In a written judgment, the President of the Court of Appeal, Mr Justice Sean Ryan, said the prosecution's case was that Mr Greene had drowned.

But under questioning in the stand Dr Jaber said the victim could also have been strangled.

Mr Justice Ryan said the evidence created difficulties as material Dr Jaber referred to in support of his conclusions had not been included in his autopsy report.

This included a lack of an explanation for injuries to the deceased's tongue. Although photographs of the injuries were included in the report, the Court of Appeal found this was not sufficient.

The judge said it was "not satisfactory" that the cause of death was given "for the first time in the witness box when the pathologist was giving evidence in the course of an important murder trial".

He added that: "By reason of the unsatisfactory mode of presentation of the pathological evidence, the trial was unsatisfactory to that extent."

The judge said there was no suggestion of improper conduct by the prosecution.

"It came as news to the prosecution, as much as to anybody else, as to some of the evidence that was given by the pathologist," he said.

The judge said the prosecution dealt with the situation "as best they could" and the trial judge made "heroic efforts" to ensure fairness would ensue.

Dr Jaber defended his handling of the case, saying the court had still accepted the prosecution's contention that Mr Greene had been unlawfully killed.

"It is not like the accused can walk free with no verdict on his record," he said.

"I am still confident that what I did was correct."

Dr Jaber insisted he had included comments in his report to support the strangulation theory, including the fracture of the victim's laryngeal cartilage and a pattern on his neck matching the zip of his jacket.

He also said he felt he adequately addressed concerns expressed by the defence team.

"When I made my view that strangulation would be in consideration for explanation for how the deceased met up with his asphyxial death the defence counsel demanded the trial be dismissed," he said.

"The judge asked me if I would write this down and so I did. I recall I wrote the clarification of why strangulation was a consideration as an underlying reason to give rise to asphyxial death.

"This was accepted and the court proceeded."

It is the second time in recent months Dr Jaber has come out to defend his handling of a homicide case.

Last May, the High Court ruled there could be no retrial of a murder case after Dr Jaber failed to comply with normal practice and instruction to have his findings peer reviewed by colleagues in the State Pathologist's office.

The absence of that peer review came to light after Prof Cassidy heard some of Dr Jaber's evidence in the 2013 trial of Michael Furlong for the murder of father-of-two Patrick Connors in an apartment in Enniscorthy, Co Wexford in April 2011.

Prof Cassidy subsequently wrote to the DPP expressing concern about Dr Jaber's evidence and the trial collapsed.

The President of the High Court, Mr Justice Nicholas Kearns, said he could not imagine how difficulties surrounding the pathology evidence could be addressed or resolved in a retrial.

The Department of Justice has refused to say whether the peer review issue has implications for any other cases.

Dr Jaber, who had been deputy state pathologist since 2009, resigned shortly after Prof Cassidy's intervention in the case.

Prior to this he had written to the DPP and the Royal College of Physicians in Ireland suggesting Prof Cassidy was not qualified to hold the job of State Pathologist.

He argued she did not have certification in forensic pathology, a sub-speciality of pathology that focuses on determining the cause of death by examining a corpse.

However, the Department of Justice expressed full confidence in Prof Cassidy.

Sunday Independent

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