Wednesday 17 January 2018

State Pathologist Dr Marie Cassidy made 'dramatic intervention' over evidence given by former deputy in murder trial, High Court hears

Dr Khalid Jaber and Professor Marie Cassidy
Dr Khalid Jaber and Professor Marie Cassidy
Dr Marie Cassidy, the State Pathologist
State Pathologist Professor Marie Cassidy

Tim Healy

STATE pathologist Marie Cassidy's "dramatic intervention" over evidence given in a murder trial by her former deputy Khalid Jaber today resulted in a High Court ruling prohibiting a retrial.

The trial of Michael Furlong (37), the Moyne, Enniscorthy, Wexford, charged with murdering Patrick Connors (37) at  the Carraig Tur apartment complex, Enniscorthy, in April 2011, collapsed in November 2013 following a dispute about Dr Jaber's evidence.

Former Deputy State pathologist Dr Khalid Jaber
Former Deputy State pathologist Dr Khalid Jaber

Dr Jaber resigned as deputy state pathologist in 2013 following a row with Professor Cassidy in which he wrote letters to State and professional bodies criticising her and suggesting she was not sufficiently qualified to act as state pathologist.

President of the High Court Mr Justice Nicholas Kearns said today it must have been a shock to the DPP to learn Dr Jaber had not complied with normal practice and instruction that his report for the Furlong case should have been peer reviewed by others in the State pathologist's office.

The absence of that peer review came to light as a result of Prof Cassidy co-incidentally being in the Central Criminal Court for another trial in November 2013 on same day Dr Jaber was giving evidence in the Furlong case.

Prof Cassidy heard the last few minutes of Dr Jaber's cross-examination and re-examination but said what she heard "was sufficient to cause me some concern".

She wrote to the DPP's office expressing those concerns in what Mr Justice Kearns said was "a dramatic intervention" as a result of which the jury in the Furlong case was discharged and the case listed for retrial.

Mr Furlong's lawyers then brought High Court judicial review proceedings to prohibit a retrial.

Today, Mr Justice  Kearns granted the prohibition order saying the court "cannot imagine how the difficulties surrounding the pathology evidence might be addressed, let alone resolved" in a retrial.

He asked would the retrial have to investigate and refer to not just Dr Jaber's evidence at the first trial but would it also have to "adjudicate on interpersonal staff issues within the office of the State pathologist at that time". 

He also asked how many pathologists and witnesses would be required to address and rectify matters which "had been so spectacularly derailed" during the original trial.

The accused would remain at peril of ultimate conviction after what inevitably would be a protracted process "in a situation without any precedent of which the court was appraised."

Earlier, outlining the background to the case, Mr Justice Kearns said Dr Jaber conducted the post-mortem on Mr Connors and concluded two scalp wounds were caused by sharp and blunt force trauma to the head and neck which were likely to have been caused by two separate knives located in the kitchen of the apartment in Enniscorthy.

Jaw fractures were most likely to have been caused by a direct blow to the face, according to Dr Jaber who found these injuries and "acute alcohol intoxication" were the cause of death, Mr Justice Kearns said.

Under cross-examination, Dr Jaber "firmly disagreed" with the defence's propositions that the scalp wounds could have been self inflicted having regard to the deceased's history of self harm, the judge said.

He also disagreed the jaw fractures could have been sustained in a fall due to blood loss and intoxication and that hypothermia was a causative factor in death.

The body was found on a communal stairway on the morning of April 29, 2011.

A doctor called by the defence said death was due to a combination of blood loss from the scalp wounds, intoxication and hypothermia.

The trial was adjourned for some days during which time Prof Cassidy wrote to the DPP expressing her concerns about the evidence Dr Jaber had given.

In the letter, she stated she was unfamiliar with the Furlong case despite having instructed that all homicide cases undertaken on behalf of the State must be peer reviewed. She said her colleagues Michael Curtis and Margot Bolster had since reviewed her own report and shared her concerns.

While all three were in agreement that Mr Connor's injuries are more likely the result of assault, her main concern was Dr Jaber's opinion about the mechanism of death. 

She said he stated there would have been damage to the upper spinal cord although there was no anatomical evidence for such an injury in the post-mortem report.

She also wrote the post-mortem report does not include a history or background information to the case and there was no mention of the amount of blood present at the scene although Dr Jaber had stated the two scalp wounds would have bled profusely. 

The likelihood of hypothermia also have to been taken into consideration as it was alleged Mr Connors had lain outside injured for several hours in a temperature of 5 degrees Celsius, she said.

The cause of death was "complex and most probably multifactional", she said in the letter.

Mr Justice Kearns said the DPP, acting with "complete propriety", disclosed the letter to the defence which, when the Furlong trial resumed, accepted it could no longer rely on the evidence of Dr Jaber as to mechanism of death. It then applied to have the jury discharged and this was granted.

In granting the prohibition order, Mr Justice Kearns said this was not a case which would have met the test as to whether a retrial would be an abuse of process. 

It was not a trial in which collapse was "engineered" by the prosecution in order to "reassemble its troops and put forward a strong case the second time around",  he said.

"Indeed, it is hard to imagine the degree of shock which must have been felt in the offices of the respondent (DPP) when Prof Cassidy's communication was received, revealing as it did a very significant breakdown in normal practice in the office of the State pathologist".

It must have been of significant concern for the DPP to learn the office instruction that all homicide cases be peer reviewed was not complied with in this instance, he said.

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