The High Court prohibited a retrial of Michael Furlong for the murder of Patrick Connors, finding that the problems exposed in pathology evidence at the first trial could make a further trial oppressive and inconsistent with a trial in due course of law.
Mr Furlong’s trial began in the Central Criminal Court in November 2013. After the defence called its pathologist, Dr Declan Gilsenan, the State Pathologist, Professor Marie Cassidy, wrote to the Director of Public Prosecutions raising concerns about the evidence of Deputy State Pathologist Dr Khalid Jaber. The prosecution accepted it could no longer rely on Dr Jaber’s opinion about the mechanism of death and successfully applied to have the jury discharged. The trial judge left open the possibility of a retrial.
Dr Jaber had attributed the death to sharp and blunt force trauma to the head and neck, as well as acute alcohol intoxication. Dr Gilsenan’s evidence was that death resulted from a combination of blood loss, alcohol and drug intoxication, and hypothermia. In her letter, Professor Cassidy questioned the basis for Dr Jaber’s proposed neck injury and said the cause of death was likely multifactorial, including blood loss, concussion, hypothermia and acute alcohol intoxication. The judgment records these as competing expert opinions; it did not decide how Mr Connors died or whether Mr Furlong was guilty.
The DPP later disclosed a report from Professor Michael Sheppard and served notice that he would give evidence for the prosecution at a retrial. Mr Furlong sought judicial review, arguing that a retrial would be an abuse of process and deny him a trial in due course of law. The DPP opposed the application, including on the ground that it was brought outside the time limit.
The High Court extended the time for the application. It accepted that Mr Furlong could reasonably have waited for the proposed additional evidence to clarify whether the prosecution intended to proceed. The court noted that the application followed service of that evidence by about four weeks.
The court said the prosecution had not engineered the collapse of the first trial. However, it distinguished this case from an ordinary retrial after jury disagreement: the jury had been discharged after the prosecution’s pathology evidence came under challenge, and a retrial would involve substantial difficulties in resolving the conflicting expert material. The court held that this could create genuine unfairness and granted the order prohibiting a further trial. It did not determine the murder charge.