Decision against retrial of murder case is upheld

A decision against a retrial of a murder case, which collapsed over disputed pathology evidence, has been upheld by the Court of Appeal.

The dispute arose when state pathologist Marie Cassidy voiced concern over evidence given in the trial by her former deputy, Khalid Jaber. Michael Furlong, aged 37, the Moyne, Enniscorthy, Wexford, was on trial for the murder of Patrick Connors, aged 37, at the Carraig Tur apartment complex, Enniscorthy, in April 2011. He denied murder.

The jury was discharged in November 2013 and the case put into a list to fix dates for a possible retrial. The DPP’s application for a discharge of the jury followed a letter written by Prof Cassidy after she happened to see Dr Jaber giving evidence in the trial. In it, she expressed concern to the DPP about that evidence. Dr Jaber resigned as deputy state pathologist in 2013 following a row with Prof Cassidy.

Arising out of Prof Cassidy’s intervention, the DPP obtained a report from a UK forensic pathologist which it was proposed to put into evidence in a retrial.

Lawyers for Mr Furlong then brought High Court proceedings seeking to prevent the retrial. In finding against the DPP, the High Court said among Prof Cassidy’s criticisms of Dr Jaber’s evidence was that his report in the Furlong case should have been peer reviewed by others in the state pathology office, in accordance with normal practice.

The DPP appealed that decision and, yesterday, a three-judge appeal court upheld that decision.

By requesting the discharge of the jury after what had been “an evidential fiasco”, the prosecution, understandably from its perspective, hoped the best route lay with a fresh trial in which new pathology evidence could be adduced, said Mr Justice Gerard Hogan. That was claiming a power — whether intentionally or otherwise — which was not available to the defence.