State needs full co-operation of pathologist to facilitate cases on which he worked
Substitute pathologists can be used to give evidence but have been seen as ‘less forceful’ than those who carried out postmortem
Dr Khalid Jaber: his full input into future cases and trials for which he conducted postmortems in the past will be vital to the justice process. Photograph: Collins Courts
The last time there was such a high-profile departure from the Office of the State Pathologist, it was Prof John Harbison stepping aside.
Having been State Pathologist for three decades, he retired in 2003. For three more years, he continued to give evidence in cases, detailing the findings of his postmortems on the remains of people unlawfully killed and others whose deaths resulted in legal proceedings.
He had been in ill-health and, in 2006, just over three years after he performed his last inquest, he reached the stage where he could no longer appear as a witness in court.
A number of cases, up to and including murder trials, proceeded without difficulty. The results of postmortems he had carried out were entered in court proceedings and were accepted in those cases where the cause of death was not in dispute.
However, in other trials where the cause of death was perhaps open to interpretation or where a question arose as to whether a killing was deliberate or accidental, serious problems resulted.
There was no case more high-profile than that of Dermot Laide, one of the young men who found themselves before the courts over the death in August 2000 of Brian Murphy (18), from Clonskeagh, south Dublin, outside Club Anabel at the Burlington Hotel.
In April 2006, Laide was due to be retried for the manslaughter of Mr Murphy but Prof Harbison was too ill to give evidence about the postmortem on the dead man.
Instead, his successor, Prof Marie Cassidy, was given some of Prof Harbison’s papers from the inquest and asked to come to her own conclusion about the cause of death, which the State intended to offer as evidence in the retrial of Laide.
While Prof Harbison concluded Mr Murphy had died from swelling of the brain caused by facial injuries, Prof Cassidy did not share that view. She said the facial injuries were “relatively minor” and had proven fatal when combined with the effects of alcohol.
The manslaughter trial was halted because of the discrepancies in the respective findings. Laide’s retrial has never occurred.
In March 2006, just weeks before the manslaughter trial of Laide was halted, Prof Harbison’s inability to give evidence in a murder case also proved problematic.
She died as a result of pressure being applied to her neck.
The intent when that pressure was applied was central to the killing being one of murder, which Horgan denied, or manslaughter, to which he pleaded guilty.
Mr Justice Barry White told the court the fact that Prof Harbison became ill and was not able to give evidence was perhaps to Horgan’s benefit.
He said the evidence given by Prof Cassidy during the trial and based on photographs was “less forceful”. That, he suggested, was unfortunate from the Kiely family’s point of view.
It is impossible to determine how many other major charges were dropped in later cases in favour of accepting guilty pleas to more minor offences because the State knew Prof Harbison’s inability to attend court hearings would derail those proceedings.
In the case of Dr Jaber’s resignation from his post, the State will be depending on his co-operation to attend cases in the months and years ahead to give evidence about postmortems he has conducted since his appointment in 2010.
As an experienced and well-qualified professional, he is unlikely to have any difficulty in finding another post overseas.
However, if that were in a jurisdiction far from Ireland and/or if any new posting was a very busy one, travelling back to attend cases, most likely several each year, may prove more difficult.
Any non-show will be seized on by defence teams, especially those representing clients in cases where the cause of death or intent of an accused is at issue.
His questioning of Prof Cassidy’s qualifications will also be seized on by defence teams, though legal sources said it is unlikely to impact on cases.
Dr Jaber also appears to be unhappy at the manner in which he was treated by the Department of Justice in recent years when he raised what he believed were issues that needed to be addressed.
The State may be best advised to focus hard on maintaining a workable relationship if the homicide trials, and other cases involving deaths where he performed the postmortem, are to be unaffected by his sudden departure.