Couple found guilty of killing MS sufferer by neglect seek appeal

A couple found guilty of unlawfully killing a 59-year-old multiple sclerosis sufferer by neglect have moved to appeal their convictions.

Evelyn Joel's 41-year-old daughter, Eleanor, and her partner Jonathan Costen (43), with last addresses at Cluain Dara, Enniscorthy, pleaded not guilty to the unlawful killing of Evelyn by neglect in Co Wexford in January 2006.

Following a retrial, they were found guilty by a jury at Wexford Circuit Criminal Court and were given a two-year suspended sentence on condition they carry out 230 hours of community service by Judge Seán Ó Donnabháin in March 2013.

The pair moved to appeal their convictions on Tuesday on a number of grounds involving negligence of others including the HSE, true cause of death, the trial judge’s refusal to transfer the retrial out of Wexford despite “shocking” local newspaper reports, the trial judge’s replacement of a juror in the absence of defence solicitors, as well as the question of Costen’s duty of care to Ms Joel.

Counsel for Eleanor Joel, Rosario Boyle SC, said that during the 14 months Ms Joel had stayed in her daughter's home, she was a patient of the HSE public health nurses and her GP.

The care of Ms Joel was the legal and professional responsibility of those parties during that time, Ms Boyle said. They knew she had a serious disease and knew Eleanor Joel “wasn’t coping”, but left the patient there without assisting her for four months.

Incontinence nappies

Despite being aware in early September 2005 that Ms Joel’s health had declined significantly, the only thing her professional carers did for her was to leave incontinence nappies behind the wheelie bin at Eleanor Joel’s house, Ms Boyle said.

However, the jury was told to not consider whether the HSE was negligent, Ms Boyle submitted.

Counsel further submitted that the jury’s verdict was annulled by depriving her client’s solicitor the chance to challenge a juror when one of the original 12 jurors was discharged and another sworn in.

Counsel for Costen, John O'Kelly SC, submitted that Costen had no duty of care to Evelyn Joel such as a blood relationship, contractual relationship or voluntary duty of care.

Despite that, Mr O’Kelly submitted, the trial judge misstated Costen’s defence to the jury and effectively told them the accused had assumed a duty of care and was trying to get out of it.

Costen “never wanted her” in the house, according to Mr O’Kelly. “He said repeatedly, because of her condition, (that) they couldn’t cope and she should be in hospital. He kept asking her to leave,” Mr O’Kelly said.

He said Evelyn Joel was a strong, independent woman who did not like doctors or hospitals. At one stage she had thrown the forms for an old folks’ home back at them, Mr O’Kelly said.

Prejudicial publicity

Counsel further submitted the trial judge had erred in refusing to transfer the case out of Wexford when just 12 months previously they had endured a very long trial out of which came a considerable amount of local and highly prejudicial publicity.

The local reportage of the first trial was “shocking”, Mr O’Kelly said.

Ms Joel was inaccurately reported as having been brought to hospital weighing three stone, he said.

The idea of a woman being in such condition - looking, he said, like somebody who had been incarcerated in Belsen concentration camp - was so shocking that it was impossible to obtain a neutral jury in Wexford for the couple’s retrial.

Counsel for the Director of Public Prosecutions, Justin Dillon SC, said the judge's refusal to transfer the case out of Wexford was not appealable and the mathematics of an 11-1 verdict were against the appellants' submission that they were deprived a chance to challenge a juror.

Mr Dillon said there came a point when a duty of care towards Ms Joel arose for Costen.

Helpless and childlike

Ms Joel was helpless and childlike, and when Costen saw her he knew she needed help. He acknowledged during Garda interviews that he should have acted and believed she was not going to survive beyond Christmas, counsel said.

All of this was happening under his roof and he could have called an ambulance, Mr Dillon said.

Likewise, if Eleanor Joel “had made a phone call we would not be here today”, counsel said.

Mr Dillon further submitted there was not just local reporting of the case but nationwide coverage, and the first jury could not have been influenced by adverse publicity because they could not reach a verdict.

Ms Boyle and Mr O'Kelly will make replying submissions before Mr Justice George Birmingham, Mr Justice Garrett Sheehan and Mr Justice Alan Mahon on Wednesday.