The State has asked the Court of Appeal to quash a man’s murder conviction and order a retrial after it emerged that the then deputy state pathologist Dr Khalid Jabbar’s work was not peer reviewed.
Colm Deely (44), of School Road, Ballyvaughan, Co Clare, had pleaded not guilty to the murder of Deirdre McCarthy (43) at a place unknown on or about March 28th, 2011. The body of Ms McCarthy was found on Fanore Beach, Co Clare on March 31st, 2011.
A Central Criminal Court jury found Deely guilty of murder and he was given the mandatory life sentence by Mr Justice Barry White on June 27th, 2013.
Deely was due to appeal his conviction on Tuesday in the Court of Appeal. However, before the appeal was opened, counsel for the Director of Public Prosecutions, Paul Greene SC, asked the three-judge court to quash Deely’s conviction and direct a retrial.
Last month, Deely’s lawyers filed a motion seeking leave to adduce new evidence for the appeal.
Solicitor Gearoid Geraghty, for Deely, submitted to the court that there was “unchallenged evidence” that the then Deputy State Pathologist Dr Khalid Jabbar’s work in this case was “not peer reviewed”.
In an affidavit grounding the motion to adduce new evidence, Mr Geraghty stated that he wrote to the Chief Prosecution Solicitor in March 2016 “to ascertain whether Dr Jabbar’s work in this case was peer reviewed as required”.
In June, the Chief Prosecution Solicitor “responded and indicated that it was not”, Mr Geraghty stated.
“This was the first time I became aware of this very serous deficiency in Dr Jabbar’s procedures,” Mr Geraghty stated.
Ahead of the trial of Colm Deely in 2013, there were “serious defence concerns relating to the nature of the pathology evidence”, Mr Geraghty stated, and the defence had retained the services of Professor Jack Crane, State Pathologist for Northern Ireland and Professor of Forensic Medicine, Queens University Belfast.
Mr Geraghty stated that his office in 2013 had taken the “unusual step” of requesting the disclosure of material “relating to Dr Jabbar’s professional qualifications, complaints made against him and in particular complaints made by any State employees against him”.
In May 2013, the Chief State Solicitor replied and “complained” that an attempt was being made to put into issue the character of Dr Jabbar and that the defence’s request for disclosure was “irrelevant and a general trawl”.
“Arising out of what is now known about Dr Jabbar,” Mr Geraghty stated that his request for disclosure of material related to Dr Jabbar ahead of the trial of Colm Deely in 2013 “was far from irrelevant and in fact could not have been more pertinent”.
Mr Geraghty stated that his client was not seeking to benefit from some ‘windfall’ arising out of a judgment that post dates his conviction.
“The competence of Dr Jabbar was absolutely central to the fairness of his trial and was explicitly raised on (Mr Deely’s) behalf both before and throughout his trial”.
Had the fact that “Dr Jabbar was carrying out work which was not peer reviewed and in defiance of instructions from the State Pathologist” been known, Mr Geraghty said, it would have been a matter of central relevance to the trial and to the defence approach.
It was unknown to Deely’s lawyers and “renders his conviction unsafe and unsatisfactory”, Mr Geraghty stated.
Mr Justice George Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice John Edwards, quashed Deely’s conviction and ordered a retrial.
Mr Deely was remanded in custody to appear before the Central Criminal Court on January 16 next.
Mr Geraghty stated that the issue first arose in 2015 High Court proceedings known as ‘DPP v Furlong’.
Arising out of that, Mr Geraghty stated that he “became aware of the factual particulars of a murder trial which took place in the Central Criminal Court on 14th November 2013 just over four months after” his client Colm Deely’s trial.
Mr Geraghty stated that the judgments in Furlong “detail an extraordinary intervention by the State Pathologist Dr Marie Cassidy arising out of the evidence given by Dr Jabbar” in that case.
“Of particular concern to Professor Cassidy was that amongst other things she was unfamiliar with the case despite having instructed that all homicide cases undertaken on behalf of the State be ‘peer reviewed’ … Her concerns were also shared by Dr Michael Curtis and Dr Margaret Bolster”.
“As a result of the intervention detailed in the (Furlong) judgments the jury were discharged and ultimately an order of prohibition was secured preventing a retrial”.
“In the aftermath of the events at trial Dr Jabbar resigned his post and left the jurisdiction”.