JUDGMENT of the Court delivered by Mr. Justice Gerard Hogan on the 20th day of April 2016
1. This is an appeal taken by the Director of Public Prosecutions against the decision of Kearns P. delivered on 7th May 2015: see Furlong v. Director of Public Prosecutions IEHC 269. As a result of that decision the Director was restrained from proceeding with the re-trial of the applicant in respect of a prosecution for murder. As Kearns P. himself recognised in his judgment, the circumstances of this case are highly unusual and virtually unique in the annals of Irish criminal law and procedure.
2. The applicant, Mr. Furlong, was charged with the murder of one Patrick Connors at Carraig Túr apartments in Enniscorthy, Co. Wexford on a date unknown between 28th and 29th April 2011. The trial of the appellant had commenced in the Central Criminal Court on 14th November 2013 and had continued until 18th November 2013 when the jury were discharged and the trial collapsed in rather dramatic circumstances.
3. What had happened was this. The body of Mr. Connors had been found lying in a communal stairway inside an apartment building in Enniscorthy on the morning of 29th April 2011. At the time Mr. Furlong had been living in apartment number 6 and it was common case that he and the deceased were together in the apartment on the night before Mr. Connors died.
4. A post-mortem on the deceased had been conducted by Dr. Khalid Jaber, the then Deputy State Pathologist. Dr. Jaber found the deceased had sustained a number of injuries which included two significant scalp wounds and bi-lateral jaw fractures. He stated that the cause of death was “sharp and brunt force trauma” to the head (and neck)” and “acute alcohol intoxication”. Dr. Jaber added that the sharp and brunt force trauma resulting in the scalp wounds were likely to have been caused by two separate knives. The blunt force trauma which had caused the bi-lateral jaw fractures had also resulted, in his opinion, in a subluxation injury to the ligaments of the neck with resulted damage to the upper spinal cord. Dr. Jaber considered that these injuries were most likely caused by a direct blow to the side of the face.
5. It must be said that Dr. Jaber’s evidence regarding the cause of death was strongly contested by the defence. A number of propositions were put to Dr. Jaber in cross-examination in relation to this very issue. First, it was suggested that the scalp wounds could have been self inflicted and in this regard the witness was referred to various remote scars found on the body of the deceased and the medical records which indicated a history of self harm. Second, it was put to Dr. Jaber that the bilateral jaw fractures and any associated neck injury could have been sustained in a fall directly on the hard surface of the stairs in the circumstances where the deceased had become weak and disorientated from blood loss and intoxication. Third, it was suggested that hypothermia was a causative factor in the death of Mr. Connors. Dr. Jaber rejected all of these propositions.
6. Following the close of the prosecution case the defence went into evidence. The defence pathologist, Dr. Declan Gilsenan, stated that, in his opinion, death was due to a combination of blood loss (hypoxic ischemia) from scalp wounds, intoxication of alcohol and drugs and hypothermia. As it happens, Dr. Gilsenan was never cross-examined on his direct evidence, as the prosecution had initially sought time within which to take instructions from Dr. Jaber in relation to certain matters raised in the evidence of Dr. Gilsenan. On the following day, however, further time was sought in order to take instructions arising out of a particular development in the case and the trial was accordingly adjourned to Monday, 18th November, 2013.
7. The particular development in question was a letter dated the 14th November 2013 which had been sent to the Director of Public Prosecutions by the State Pathologist, Professor Marie Cassidy. The letter was in the following terms:
“It is my duty as State Pathologist to bring to your attention my concerns re the report and opinion of Dr. K. Jaber regarding the death of Patrick Connors. The case came to my attention while I was attending the Central Criminal Court on 13th November giving evidence in a trial. I noticed Dr. Jaber was to give evidence and took the opportunity to see him give evidence. I only heard the last few minutes of the cross-examination and the re-examination. However, this was sufficient to cause me some concern. I was unfamiliar with the case, despite having instructed that all homicide cases undertaken on behalf of the State must be peer reviewed. My colleagues, Dr. M. Curtis and Dr. M. Bolster, have since reviewed this report and share my concerns.
In his report, Dr. Jaber described two incised wounds to the scalp and a fractured mandible. The internal examination was largely unremarkable and there was no evidence of internal trauma. Toxicology showed that he was intoxicated by alcohol and drugs (Diazepam, Quetiapine). Expert opinion was sought from Professor Michael Farrell on sections of spinal cord and brain tissue. While we are in agreement that Mr. Connor’s injuries are more likely the result of an assault, my main concern is Dr. Jaber’s opinion regarding the mechanism of death.
1. With regard to the mechanism of death, Dr. Jaber has postulated that the deceased had sustained damage (subluxation) to the ligaments of the upper neck where the base of skull articulates with the upper cervical spine. He states that there would have been damage to the upper spinal cord.
There is no anatomical evidence of such an injury in the text of the post-mortem report, save for a reference to perceived increased mobility of the neck. Furthermore, the spinal cord was examined microscopically by Professor Michael Farrell, Consultant Neuropathologist, who reported no evidence of injury, only the presence of artefactual changes.
Dr. Jaber continues to advance his hypothesis of spinal injury at this site on the basis of expected changes on radiological imaging. However, reading of the post-mortem report reveals that no such radiological investigation was ever carried out.
2. Dr. Jaber postulates that this injury was caused by a blow to the jaw. Indeed, he identified two fractures of the mandible, both with surrounding bruising in the soft tissues, which he correctly attributes to blows to either side of the face. This would not be a likely mechanism for the hypothetical neck injury.
3. The post-mortem report does not include a section regarding the history or background information to the case. There is no mention of the amount of blood present at the scene of death. Dr. Jaber does say that the two scalp wounds would have bled profusely. This profuse haemorrhage, in all probability, would have made a significant contribution to his death. Also to be taken into consideration is the likelihood of hypothermia; allegedly, Mr. Connors had lain outside, injured, for a period of several hours overnight, in an ambient temperature of 5 degrees Celsius.
4. The cause of death in this case is complex and most probably multifactorial. The relevant factors include blood loss (from the scalp wounds), concussion (due to facial injuries), hypothermia and acute alcohol intoxication.”
8. Following receipt of this letter, the Director’s legal advisers immediately and - with commendable fairness and propriety - disclosed its existence to the defence and furnished a copy to the applicant’s legal representatives. When the trial resumed on the morning of the 18th November, 2013, counsel for the applicant brought the contents of Professor Cassidy’s letter to the attention of the court. Counsel for the defence submitted that in the light of the contents of the letter, it would be unsafe to allow the case to go to the jury and, accordingly, that the court should direct a verdict of not guilty. In response, counsel for the prosecution accepted that they could no longer rely on the evidence of Dr. Jaber as to mechanism of death, but applied instead to have the jury discharged. While this application was opposed by the defence, it was nonetheless acceded to by the trial judge.
9. In the context of exchanges which then took place with the trial judge, prosecuting counsel stated that if the case was put back into the list to fix dates, the Director would then have the opportunity to review the state of the evidence. In ruling on the issue himself the trial judge stated that “it may well be that when the Director has the opportunity to consider matters further that this matter does not proceed any further”.
10. The possibility of a retrial being thus left open, the matter was adjourned to a list to fix dates on the 13th December 2013. On that date the Central Criminal Court fixed the 12th January, 2015 as the date for the retrial of the applicant. On the 10th September, 2014, some nine months after this date for a re-trial was fixed, the Chief Prosecution Solicitor disclosed to the defence a report from a Professor Sheppard, a Consultant Forensic Pathologist based in the United Kingdom. On the 29th September, 2014 a notice of additional evidence was served, effectively outlining the evidence which Professor Sheppard would give on a retrial and indicating that he would be called as a witness for the prosecution in any such retrial.
11. On the 24th November, 2014, leave to seek judicial review was sought. The applicant effectively thereby sought the prohibition of a retrial on the basis that in the particular circumstances the same would constitute an “abuse of process” and/or a denial of the applicant’s right to trial in due course of law as provided for under Article 38.1 of the Constitution.
12. The respondent submitted that the applicant did not seek an order prohibiting his trial within the time limit provided for by the Rules of the Superior Courts and that relief should not be granted for this reason alone. The grounds of opposition filed on behalf of the respondent further contend that a retrial of the applicant would not constitute an abuse of process and would be a trial in due course of law for the purposes of Article 38.1 and that the trial judge acted appropriately in discharging the jury on the 18th November, 2014 and in adjourning the matter to the next list to fix dates. It was additionally argued that the respondent was entitled to serve additional evidence in the context of a retrial and, if there was any unfairness to the applicant by reason of its service, it was within the power of the trial judge to make appropriate rulings and directions to ensure a fair trial.
13. There are essentially the two issues which this Court has now to consider. First, is the applicant out of time to seek the relief sought in these judicial review proceedings and, if so, should time be extended? Second, if the applicant is not debarred from seeking this relief by reason of the effluxion of time, would a re-trial in these circumstances compromise the applicant’s right to a trial in due course of law by virtue of Article 38.1. The Court proposes to consider each of these issues in turn.
Is the applicant debarred from seeking relief by reason of delay and lapse of time?
14. Is the applicant debarred from seeking relief in these judicial review proceedings by reason of delay and lapse of time? The Director submits that time ran against the applicant from the time at which the re-trial was adjourned by the trial judge to the list to fix dates on the 13th December, 2013 on which date the 12th January, 2015 was allocated for the retrial of the applicant.
15. Ord. 84, r. 21 of the Rules of the Superior Courts provides:
"(1) An application for leave to apply for judicial review shall be made within three months from the date when grounds for the application first arose.
(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding.
(3) Notwithstanding sub-rule (1), the Court may, on an application for that purpose, extend the period within which an application for leave to apply for judicial review may be made, but the Court shall only extend such period if it is satisfied that:-
(a) there is good and sufficient reason for doing so, and
(b) the circumstances that resulted in the failure to make the application for leave within the period mentioned in sub-rule (1) either-
(i) were outside the control of,
(ii) could not reasonably have been anticipated by the applicant for such extension.”
16. In his judgment in the High Court Kearns P. considered that the highly unusual circumstances which had led to the collapse of the first trial was sufficient to satisfy the first limb of r. 21(3)(a) (i.e., the “good and sufficient reason” requirement). Kearns P. then continued:
“As regards the second limb, the Court takes the view that it was reasonable for the applicant to wait and see if additional evidence would be furnished in this case, the service of which would manifest the respondent’s intention to proceed with a retrial. The applicant argues, I believe correctly, that against a background where the trial judge himself had expressed doubts as to whether there would ever be a retrial, the mere fixing of dates in the usual administrative process of the Central Criminal Court, did not of itself necessarily imply that a trial would actually follow once the Director had fully considered the implications of what had occurred in this case.
The prosecution having withdrawn the evidence of its original pathologist could not have proceeded with a retrial without serving as additional evidence a report from a new pathologist. I think the applicant is entitled to rely on the proposition that, until such time as that was done, he was entitled to anticipate that, instead of the matter proceeding to a retrial, a nolle prosequi might well have been entered. It is argued on behalf of the applicant that the situation only crystallised with the formal service of the notice of additional evidence containing the report of Professor Sheppard on the 28th October, 2014. The application for leave to seek judicial review was brought four weeks after that date. Had the proceedings been commenced prior to that time, simply on the basis of the unfairness to the applicant in discharging the jury, relief might have been refused on discretionary grounds on the basis that the application was premature or that a retrial might never in fact take place. As it transpired, a period in excess of eleven months elapsed from the date of collapse of the first trial to the service of the notice of additional evidence and no explanation was provided by the respondent in respect of this delay, a delay which caused the trial date of the 12th January, 2015 to be vacated.
The clock begins to run under Ord.84 from “the date when grounds for the application first arose”. It is impossible for an applicant to know what grounds may exist until such time as he has sight of the evidence which it is proposed to lead against him. In this case, therefore, the date of either a return for trial, or the date of service of an indictment, have no relevance whatsoever. This is a retrial situation where the service of the additional evidence of Professor Sheppard confirms not only that the prosecution intend to proceed with such retrial but also from which the complexities and difficulties of any retrial now stand starkly revealed.”
17. The Court entirely agrees that, insofar as it was necessary to do so, time should be extended for all the reasons given by Kearns P.
18. The Court would, however, in any event go slightly further than Kearns P. so far as the issue of delay is concerned. Given the remarkable circumstances of this case, it was far from clear that the re-trial would ever have gone ahead, not least having regard to the comments of the trial judge that the Director might wish to consider the matter. It is true that a fresh date had been obtained in respect of the re-trial. This, however, was in the circumstances really a formal and administrative matter, since there was no certainty at all at this stage that the prosecution would ever really proceed with the re-trial. In reality, so far as the applicant was concerned, the first real sign of earnestness on the part of the prosecution regarding a re-trial came with the serving of a fresh pathology report from Professor Sheppard on 29th September 2014.
Conclusions on the delay issue
19. The Court would regard this latter date - rather than the earlier date of December 2013 - as the effective date for the purposes of the running of time for Ord. 84 purposes. As Kearns P. recognised, no new trial could have proceeded without the service of a fresh pathology report. It was, accordingly, this date (i.e., September 2014) rather than the fixing in December 2013 of the date for the re-trial which was of the greater significance so far as the special circumstances of the present case is concerned. If - as the Court considers to be the case - time ran from that date, then the present proceedings (which commenced with an application for leave in November 2014) were within time. Even if the Court were wrong on this point, we nonetheless agree, that time should be extended for the purposes of Ord. 84, r. 21 for all the reasons given by Kearns P.
Whether a re-trial would result in a trial other than in due course of law
20. The Court can now turn to the second question, namely, whether a re-trial in the circumstances of the present case would result in a trial other than in due course of law for the purposes of Article 38.1 or which would otherwise be unfair.
21. As Kearns P. recognised, a trial may well collapse for any number of reasons, including jury disagreement. In those circumstances, there is no basis at all for suggesting that the holding of a re-trial will in itself amount to oppression and the Supreme Court has frequently rejected such a proposition: see, e.g., AP v. Director of Public Prosecutions IESC 2,  1 IR 729, 736, per Denham J.
22. Of course, where there is a re-trial, both legal teams will inevitably know more about each others case than they did at the start of the first trial. They will also be in a position to re-assess their own evidence and whether their own case should be bolstered in some way. As Hardiman J. noted in McNulty v. Director of Public Prosecutions IESC 12,  3 IR 572, 581:
“The trial process may involve two or more hearings for a number of reasons. The jury may disagree, as happened in this case, and happens not infrequently. Or the first jury may be discharged for one reason or another. In either event the prosecution may bring the case on again for trial before a separate jury unless the defendant can show that such a step would be oppressive.
Where there is a second trial, neither side is bound to approach the case in the same way that they approach the first trial. New witnesses may be called, or witnesses called on the first occasion may be omitted. Almost every trial, especially if it proceeds to the point where the defendant is given in charge to the jury, will develop in a way which could not be wholly predicted before it started. Each side will have learned a good deal more about the other side’s case. A witness who looked very impressive on paper may appear to some disadvantage in giving oral evidence, cross examination may put an entirely different complexion on certain evidence, and legal argument, where there is any, may reveal weaknesses in the case of either side in the way they address certain topics, which had not previously occurred. It is perfectly legitimate for either the prosecution or the defence to adapt these discoveries by looking again at how it will present its own case.
Where there is a second trial, almost inevitably, each side will know more about the other side’s case than it did when the first trial started. I do not consider that it is in any way oppressive of the other side for a party or his advocates to deploy more or different evidence on a second trial. It would be a wholly artificial exercise to say that because something had not occurred to the prosecution (or defence) for the first trial it could not benefit from the knowledge and information that the trial had given to them. It would be a wholly unrealistic form of gamesmanship to hold that because the prosecution had not thought it necessary to prove a particular fact at the first trial, they were stuck with that decision at a retrial.”
23. We would draw attention, however, to the fact that in this passage Hardiman J. emphasised that a defendant could apply to restrain a re-trial on the ground of oppression.
24. In the present case Kearns P. emphasised - and, we believe, correctly - the fact that the prosecution had done nothing deliberately to bring this state of affairs about such that any re-trial could fairly be described as an abuse of process on the part of the prosecution:
“This was not a trial the collapse of which was “engineered” by the prosecution in order to reassemble its troops and put forward a stronger case the second time round. Indeed, it is hard to imagine the degree of shock which must have been felt in the offices of the respondent when Professor Cassidy’s communication was received, revealing as it did a very significant breakdown in normal practice in the Office of the State Pathologist. It must have been a matter of significant concern to the respondent to learn that an office instruction to the effect that all homicide cases undertaken on behalf of the State be peer reviewed, was not complied with in this particular instance. This Court is not aware of any other murder trial in this jurisdiction collapsing for the sort of reason which obtained in this particular case. It clearly betokened significant communication difficulties in the Office of the State Pathologist of such a degree that led Professor Cassidy to make the dramatic intervention which she did in this case.”
25. We accordingly agree with Kearns P. that this was not an abuse of process case in the sense that the prosecution had done nothing deliberately to bring this result about. Rather, the question is whether a re-trial in the circumstances in which the jury was discharged would be oppressive or unfair or otherwise not in due course of law. In this context the classic authority remains the judgment of Finlay P. in The State (O’Callaghan) v. Ó hUádhaigh  I.R. 42.
26. In O’Callaghan, a ruling had been made by the trial judge in the Central Criminal Court whereby, in effect, the prosecution were not permitted to amend the indictment by the addition of numerous charges in addition to the single count placed on the original indictment. Accordingly, a nolle prosequi was entered by the Director in respect of the original charges with a view to commencing a fresh prosecution in respect of all charges, including the original charges. The question, therefore, was whether the re-trial should be prohibited in these circumstances for want of fairness.
27. Finlay P. held that it should be so prohibited ( I.R. 42, 52:
“If the contention of the respondent in this case is correct, then it means that in any criminal trial the Director, on meeting a situation in which a ruling or proposed ruling by the trial judge on a matter within his discretion at the trial is unsatisfactory, from the point of view of the prosecution, can deal with that problem by entering a nolle prosequi and so avoid the consequences of technical matters that may have arisen in the course of the proceedings up to that time by instituting an entirely fresh prosecution freed from, or cured of, the difficulties which have arisen and which are likely to favour the accused.”
28. In the present case Kearns P. considered that these principles were also governed this application:
“While the applicant submits that a retrial has, in effect, been “engineered” by the respondent so as to overcome the adverse development in relation to the pathology evidence, the Court believes that this is a misnomer for what occurred. The Court accepts however the validity of the applicant’s remaining contention that no other party, confronted with such a development in terms of their case, has the opportunity of collapsing a trial with a view to mending their hand at a new trial. An accused person, on suffering a similar development in his case cannot, on that basis alone, ask the court to stop the trial and proceed afresh on another occasion. To allow the prosecution to adopt such a course in this case would undoubtedly create an imbalance between the rights of the powers of the prosecution and those of the accused, a matter adverted to by Finlay P. in O’Callaghan…”
29. For our part, we agree with Kearns P. and I consider that the present case is indistinguishable in principle from the decision of Finlay P. in O’Callaghan. Viewed objectively, the actions of the prosecution counsel in applying to have the jury discharged can only be interpreted as an endeavour to ensure that the difficulties for the prosecution caused by reason of Professor Cassidy’s letter (and the consequential implications for Dr. Kabir’s evidence) were somehow circumvented. This is in no sense at all a criticism of prosecuting counsel, for he (and, indeed, the entire prosecution team) were placed in a difficult situation by reason of these remarkable developments.
30. The ratio of O’Callaghan is essentially that special powers vested in the Director of Public Prosecution (in that case the power to enter a nolle prosequi) should not be permitted to be exercised in a manner which would serve to give an unfair advantage to the prosecution as compared with the defence. Here the plain facts of the matter are that vital pathology evidence adduced by the prosecution could no longer be relied upon in the wake of Professor Cassidy’s intervention. It must be recalled, of course, that the principal defence witness, Dr. Gilsenan, had by this stage already given evidence contrary to that of Dr. Jaber and that Dr. Jaber had already been cross-examined.
31. The effect of the prosecution’s actions was to bring about a result where a duly empanelled jury would not be required to give a verdict against a backdrop of what, from the standpoint of the prosecution, amounted to an evidential fiasco. By requesting that the jury be discharged, the prosecution naturally - and, from its perspective, understandably - hoped that the best route lay with a fresh trial in which it could adduce fresh pathology evidence. But by so acting the prosecution claimed for itself - whether intentionally or otherwise - a power which was not available to the defence.
32. If a vital defence witness performs badly or is wholly undermined in some important respect, the defence do not have the right effectively to abort the trial in the hope that the evidence will run in a more satisfactory fashion at any subsequent re-trial. It is clear, nevertheless, by reference to the O’Callaghan principles that the courts should not permit the prosecution’s power to enter a nolle prosequi (or, as here, seek to have the jury discharged when vital prosecution evidence had been undermined) to be exercised in a fashion which would give the prosecution a signal advantage over the defence.
33. Such an inequality between the prosecution and the defence in relation to circumstances which gave rise to the discharge of the jury in the first place was, of course, the very point which Finlay P. had made in O’Callaghan ( I.R. 42, 53-54):
“In this way [the applicant] would have the entire of his remand awaiting trial set at nought and he would have to start afresh to face the criminal prosecution in which the Prosecution, by adopting different procedures, could avoid the consequences of the learned trial judge’s view of the law. No such right exists in the accused: if the trial judge makes decisions adverse to the interests of the accused, the latter cannot obtain relief from them otherwise than by appeal from the Central Criminal Court, or by appeal or review in the case of an inferior court.”
34. This, however, is precisely the situation which occurred here, since it would be unfair to allow the prosecution to have a fresh trial when the first trial was aborted at the request of the prosecution, precisely because of an inability on the part of the prosecution to rely on vital evidence which had been given by a major prosecution witness when such a facility would not be available to a defendant if they encountered similar problems.
35. It is true that, as Hogan J. observed in his judgment for this Court in Sirbu v. Director of Public Prosecutions IECA 238, the modern jurisprudence tends to stress that many difficulties inherent in the trial process (such as undue delay or missing evidence) can often best be addressed by appropriate rulings of the trial judge, rather than by means of ex ante determinations by a court in the course of judicial review proceedings. Nevertheless, as Hogan J. recognised in Sirbu, the real question is whether, nevertheless, there was a real risk of an “unavoidably unfair trial”, employing here the language of Dunne J. in Kearns v. Director of Public Prosecutions IESC 23.
36. Applying that test in the present case, we find ourselves obliged to acknowledge that any re- trial would be unfair or oppressive because of these circumstances and the particular stage of the trial at which the jury came to be discharged . To permit the prosecution to obtain an advantage of this kind from the collapsed trial by allowing it, as Kearns P. graphically put it in his judgment in the High Court, to re-make entirely a vital aspect of their case would be inherently unfair and entirely at odds with the principles articulated in O’Callaghan.
37. For all of these reasons, therefore, we agree with the decision of Kearns P. to grant an order restraining the Director of Public Prosecution from proceeding with this prosecution. As the Court believes that Kearns P. was entirely correct in both his reasons and the conclusion which he reached, we would accordingly dismiss the Director’s appeal both for those reasons and for the reasons given in this judgment.