The Court of Appeal has dismissed the Director of Public Prosecutions’ appeal against an order barring the retrial of Michael Furlong for murder, finding that a new trial would be unfair in the circumstances in which the first trial collapsed.
The first trial began in the Central Criminal Court in November 2013. The prosecution’s pathologist, Dr Khalid Jaber, attributed the death of Patrick Connors to head and neck trauma and acute alcohol intoxication. The defence disputed that account. After the defence pathologist gave evidence proposing a combination of blood loss, alcohol and drugs, and hypothermia as causes, the prosecution sought time to take further instructions.
During the adjournment, State Pathologist Professor Marie Cassidy wrote to the Director raising concerns about Dr Jaber’s opinion on the mechanism of death. She said there was no anatomical evidence of the spinal injury he had proposed and noted that the post-mortem report did not record radiological investigation. She considered the death complex and probably multifactorial, involving blood loss, concussion, hypothermia and alcohol intoxication. The Director disclosed the letter to the defence.
When the trial resumed, the prosecution accepted it could no longer rely on Dr Jaber’s evidence about the mechanism of death and asked the trial judge to discharge the jury. The judge granted that request. The prosecution later served notice of additional evidence from a UK-based pathologist, Professor Sheppard, for a proposed retrial.
Furlong sought judicial review, arguing that a retrial would amount to an abuse of process and deny him a trial in due course of law. The High Court granted an order restraining the prosecution. The Director appealed, arguing in part that the application was out of time and that any unfairness could be addressed by the trial judge at a retrial.
The Court of Appeal held that the judicial review application was within time, treating service of the fresh pathology report in September 2014 as the effective point when the prosecution’s intention to proceed became clear. It added that, even if necessary, time should be extended.
On the retrial issue, the court distinguished ordinary retrials from this case. It found that the jury had been discharged at the prosecution’s request after vital prosecution evidence was undermined, at a stage when the defence pathologist had already testified and Dr Jaber had been cross-examined. Allowing the prosecution to present a new pathology case would give it an advantage the defence would not have if its own key evidence failed.
The court concluded that a retrial would be unfair or oppressive and dismissed the Director’s appeal. The order restraining the prosecution from proceeding with the murder case therefore remained in place. The appeal ruling did not determine Furlong’s guilt or innocence.