A jury hearing the trial of a father accused of murdering his baby son must be “certain of his guilt” before they can return a guilty verdict, his defence barrister said.
John Tighe (40) of Lavallyroe, Ballyhaunis, Co Mayo has pleaded not guilty to murdering six-and-a-half-month old Joshua Sussbier Tighe at his home on June 1st, 2013.
It is the prosecution case that baby Joshua choked on a wad of two scrunched up pieces of tissue that was placed in his throat by the accused. Mr Tighe has maintained from the outset that he was changing the baby’s nappy, went to the toilet and when he returned Joshua was choking on the tissue.
Mícheál P O’Higgins SC, for the defence, told the jurors on Wednesday they cannot convict based on suspicion or likelihood, but that the prosecution’s case must be proven beyond reasonable doubt. “In short, you must be certain of his guilt,” he told them. Otherwise, they must acquit.
Mr O’Higgins told the jury that inconsistencies in his client’s accounts, highlighted by the prosecution as indicative of guilt, were inevitable given the confused situation he found himself in, with blood, saliva, high distress and his child choking in front of him.
“No wonder his recollection is not perfect,” he said. Questioning the evidence, he asked the jury to consider that there is an innocent explanation for this “tragic event”. He added: “Awful things happen to good people who are innocent. Suspicion is not proof of guilt.”
His client, he said, accepts that he “carelessly” left the child on the changing unit with scrunched up tissue paper within his reach.
Counsel asked: “How many of us have done careless things in life? Even in relation to our children. How many of us can say we have never left a baby unattended?”
He pointed out that expert paediatrician Dr Peter Keenan told the trial a child Joshua's age could have put the wad in his mouth and swallowed it, although not to the point where it was found in Joshua's throat.
Mr Tighe told gardaí he left Joshua for no longer than five minutes but Mr O'Higgins pointed to a statement made by his neighbour Ann Shannon, who said that the accused was not aware of time passing.
“If John said two minutes, it could be 10 seconds or 10 minutes.”
If the baby was left unattended for longer than five minutes, Mr O’Higgins asked the jury to consider what he could have done to the tissue by sucking on it. He further asked them to consider whether Mr Tighe’s effort to remove the tissue by pouring water down the baby’s throat and then his attempts to retrieve it with his fingers could have moved it further down, to where it was found after death by a pathologist.
He pointed out that the accused had been consistent in his many statements to gardaí that he was careless but did nothing to deliberately hurt the baby.
To find him guilty, they would have to be certain that he was telling “an enormous lie in all of those interviews”.
He finished by saying: “I invite you to conclude that he is not guilty.”
In his charge, Justice Patrick McCarthy explained to the jury that there are three verdicts open to them: guilty of murder, not guilty of murder but guilty of manslaughter, or not guilty.
To convict of murder, he said they must be satisfied that he killed Joshua and that when he did so he intended to kill or cause serious injury.
If the jury is satisfied that Joshua was unlawfully killed but the prosecution has failed to prove that Mr Tighe had that intention, they can bring the alternative verdict of manslaughter.
If they are not satisfied beyond reasonable doubt that Mr Tighe killed the child, they must acquit.
Mr Justice Patrick McCarthy told the jury he will finish his charge on Thursday morning before sending them out to begin their deliberations.