State pathologist Marie Cassidy’s “dramatic intervention” over evidence given in a murder trial by her former deputy, Khalid Jaber, has resulted in a High Court ruling prohibiting a retrial.
The trial of Michael Furlong, aged 37, of the Moyne, Enniscorthy, Wexford, charged with murdering Patrick Connors, aged 37, at the Carraig Tur apartment complex, Enniscorthy, in April 2011, collapsed in November 2013 following a dispute about Dr Jaber’s evidence.
Dr Jaber resigned as deputy State pathologist in 2013 following a row with Prof 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 yesterday it must have been a shock to the DPP to learn Dr Jaber had not complied with normal practice and instruction that his report in the Furlong case should have been peer-reviewed by others in the State pathologist’s office.
The absence of that review came to light as a result of Prof Cassidy coincidentally being in the Central Criminal Court for a separate trial in November 2013 on the 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.
Yesterday, 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.
Earlier, outlining the background to the case, Mr Justice Kearns said Dr Jaber conducted the autopsy 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.
Under cross-examination, Dr Jaber “firmly disagreed” with the defence’s propositions that the scalp wounds could have been self- inflicted, considering the deceased’s history of self-harm, the judge said.
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. She said 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.
The DPP disclosed Prof Cassidy’s letter to the defence and, when the trial resumed, the DPP accepted it could not rely on some of Dr Jaber’s evidence. It applied to have the jury discharged and this was granted.
In granting the prohibition order, Mr Justice Kearns said it must have been of significant concern for the DPP to learn the instruction that all homicide cases be peer-reviewed was not complied with in this instance.
© Irish Examiner Ltd. All rights reserved