Couple will not face retrial over death of MS sufferer
Convictions of Eleanor Joel and Jonathan Costen were overturned earlier this month
Evelyn Joel’s grave at St Mary’s cemetry in Enniscorthy, Co Wexford. File Photograph: Bryan O’Brien/The Irish Times
A couple whose convictions for killing a 59-year-old MS sufferer by neglect were overturned earlier this month, will not face a retrial.
Evelyn Joel’s 41-year-old daughter, Eleanor, and her partner Jonathan Costen (43), with last addresses at Cluain Dara, Enniscorthy, had 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 by judge Seán O’Donnabháin in March 2013 on condition they carry out 230 hours of community service.
Earlier this month, they successfully appealed their convictions and the Court of Appeal was told on Friday the Director of Public Prosecutions will not be seeking a retrial.
Counsel for the DPP, Justin Dillon SC, had told the court his client wished to consider the judgment and his instructions this morning were that no retrial would be sought.
It was not expected be a long-term arrangement but would last until Evelyn was offered suitable accomodation by the local authority.
Following a diagnosis of advanced primary progressive mulitple sclerosis, Evelyn was offered a long-term hospital bed in Wexford General Hospital but she refused it.
In December 2005, her condition deteriorated and ambulance personnel who were called at the behest of Jonathan Costen’s mother were “greatly disturbed by the condition in which they found their patient”.
Evelyn Joel was in very poor condition, the paramedics found. The bed she was lying in was filthy, her lower body was covered in faeces and she had extensive bed sores which were infected and found to contain maggots.
Following admission to hospital on January 1st, 2006, she immediately made progress in response to treatment but unfortunately developed pneumonia and died on January 7th.
Eleanor Joel and Jonathan Costen were charged with manslaughter and the case advanced against them was one of neglect while she was living in their home.
Turning to the grounds of appeal, Mr Justice Birmingham said Eleanor Joel and Mr Costen contended that others, including healthcare professionals and local authority officials, were responsible for such negligence as allegedly occured and that no private individual had the resources to mount an investigation into the negligence of others.
While there was no indication of criminal conduct, Mr Justice Birmingham said, the nature of the HSE’s interaction with Evelyn Joel “gave rise to concern and disquiet”.
During the first ten months of her stay with her Eleanor Joel, Evelyn was seen 15 times by a public health nurse or one of her team.
However in the final four months, she was not visited by any HSE nurse despite the deterioration of her condition up to that point.
“During the final four months of her life the HSE involvement ... was limited to leaving nappies outside the house where she resided,” the judge said.
“One would have to say that there were sufficient indications of possible failings on the part of statutory agencies, the Minister for Health spoke of huge failings, that the matter required investigation,” the judgment stated.
“The approach of the gardaí to various healthcare professionals who featured in the case ... was in marked contrast to the garda approach” to Eleanor Joel and Mr Costen.
However, the court was not persuaded that the nature of the Garda investigation rendered a fair trial impossible.
The healthcare professionals who dealt with Evelyn Joel were potentially “very significant witnesses” and ought to have been called to give evidence or to be cross examined.
The fact they were not rendered the trial unsatisfactory, the judge said.
Furthermore, such was the extent of publicity across Co Wexford arising from the first trial, Mr Justice Birmingham said the issues at stake were so emotional, so sensitive and the coverage so massive and intense, their retrial “should have been transferred from Wexford to Dublin”.
He said the court was concerned that a significant step in the trial – the replacement of a juror – was taken in the absence of Ms Joel’s legal advisors. It was an “unsatisfactory state of affairs” and Ms Joel succeeded on this ground.
On causation, Mr Justice Birmingham said Evelyn Joel’s complicated medical history made identifying the exact cause of death was not altogether straightforward. The blurring of the test in these circumstances was “unfortunate” and this ground of appeal also succeeded.
Mr Costen also succeeded on a ground relating to the trial judges directions to the jury on his duty of care.
Counsel for the Director of Public Prosecutions, Justin Dillon SC, told the court on Friday, that his client’s instructions were that the DPP would not be seeking a retrial.
Mr Justice Birmingham thanked counsel, including John O’Kelly SC for Mr Costen and Rosario Boyle SC for Eleanor Joel, as well as Mr Dillon for their assistance in “what was a difficult and complex” case.