RETRIALS pose huge difficulties for both sides in the criminal process. By the time they take place, an appeal process has already taken place; years may have passed since the original trial, and an even longer time span since the event (the fracas that preceded the death of Brian Murphy took place almost six years ago).
Any retrial will run the gauntlet that a vital witness may have died, or is too ill to give evidence, or has moved outside the jurisdiction and is no longer willing to give evidence.
However, the evidence of the State Pathologist is vital to all homicide trials. While the evidence of the pathologist is based on his or her postmortem report, it is presented orally in courts in order to give the defence an opportunity to cross-examine, test, and clarify its findings.
Professor John Harbison retired as the State Pathologist three years ago but there was an overhang situation in that he continued to give evidence in relation to examinations conducted by him. Some time ago, when it became clear that Dr Harbison’s health was deteriorating, the Director of Public Prosecutions prioritised the trials in which he was to give evidence.
Minister for Justice Michael McDowell said yesterday that all of those ‘original’ trials have been concluded. But a problem has arisen in relation to retrials, some relating to events that took place six or seven years ago but are only now coming up for hearing.
These problems were highlighted last month during the retrial of Ian Horgan, who was eventually convicted for the manslaughter and rape of a young Cork woman, Rachel Kiely.
Because of Dr Harbison’s illness, current State Pathologist Dr Marie Cassidy gave evidence in his stead at the retrial, mainly based on photographs. Trial judge Barry White said that this had perhaps been to Horgan’s benefit, because the pathological evidence was, by necessity, “less forceful” than Dr Harbison’s evidence.
But another potential difficulty emerged yesterday. Dermot Laide said his retrial was not abandoned only because Dr Harbison was too ill. He referred o the statement made by Dr Cassidy for the trial, which came to very different conclusions to those of Dr Harbison’s in the original trial. So stark were the differences, said Mr Laide, that the pathologists seemed to be describing different incidents.
The differences of findings may raise problems for the State that extend beyond the non-availability of Dr Harbison. It does theoretically leave open the possibility that some people convicted for manslaughter and murder may seek retrials based on challenges to the pathological evidence.
In the absence of Dr Harbison, it is likely that Dr Cassidy will be required to give evidence in cases where he was involved, basing her evidence on photographs, his notes, and toxicology and other reports. As the experiences in the Brian Murphy and Rachel Kiely trials show, this is not ideal.
On a more general level, it leaves the State in a quandary as to how to deal with a situation where a witness who is central to all murder trials becomes unavailable.
Mr McDowell said yesterday that he would closely examine the law to see if there was any way to preserve evidence in a manner that was consistent with the rights of the accused and a fair trial.
He suggested that the evidence of the pathologists could be taken at an early stage by deposition (some time before the trial took place) and that the evidence could be cross-examined by the defence at that stage. But the minister accepted that that approach was problematic.
A senior legal source said: “The accused may not have sufficient legal representation at that stage. Alternatively, he may have had no recourse to avail of his own forensic evidence at the time this evidence has given.”