Evelyn Joel’s daughter, Eleanor, aged 41, and her partner Jonathan Costen, aged 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 by Judge Seán O’Donnabháin in March 2013 on condition they carry out 230 hours of community service.
The pair moved to appeal their convictions yesterday on 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; and the question of Costen’s duty of care to Mrs Joel.
Counsel for Costen, John O’Kelly, submitted that Costen had no duty of care to Mrs Joel.
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, who acknowledged during garda interviews that he should have acted .
Ms Boyle and Mr O’Kelly will make replying submissions before Mr Justice George Birmingham, Mr Justice Garrett Sheehan, and Mr Justice Alan Mahon today.