A SECOND retrial may be on the cards for Eleanor Joel and Jonathan Costen after their convictions were quashed by the Court of Appeal.
The couple, who were found guilty of the unlawful killing by neglect of Joel’s mother Evelyn (59) in January 2006 had received a two-year suspended sentence at Wexford Circuit Court in March 2013. They were ordered to, in lieu of the sentence, carry out 230 hours of community service each.
However, the prosecution subsequently appealed the conviction and the defence counter-appealed it.
It has, since then, been tied up in the Court of Appeal until last week when the judgement was delivered by Mr Justice George Birmingham.
Mrs. Joel had suffered from Multiple Sclerosis and it was the State’s case that she had been neglected while living the home of her daughter and her daughter’s partner Costen.
Mrs. Joel was taken by ambulance from her daughter’s home in Enniscorthy on New Year’s Day of 2006 but died in hospital six days later.
The first trial resulted in a hung jury while a second trial at the end of 2012 found both parties guilty.
In judgement, Mr. Justice George Birmingham said that Evelyn Joel had moved in with her daughter in 2004 but it was never expected to be a long-term arrangement but a temporary measure until Mrs. Joel was offered suitable accommodation by the local authority. After being diagnosed with advanced primary progressive multiple sclerosis, she was offered a long-term bed in Wexford General Hospital which she refused.
The ambulance personnel who attended the house were “greatly disturbed” by the condition in which they found Ms. Joel, who had extensive bed sores which were infected and found to contain maggots.
While she did make progress while in hospital, she subsequently developed pneumonia and died on January 7, 2006.
The defence appealed on a number of grounds. They contended that others, including healthcare professionals and local authority officials, were responsible for such negligence as allegedly occurred but said no private individual had the resources to mount such an investigation. There was no indication of criminal conduct but the judge said the nature of the HSE’s interaction with Mrs. Joel “gave rise to concern and disquiet.”
The public health nurse, the court heard, had visited 15 times during the first ten months of Mrs. Joel’s stay at her daughters but in the final four months, by which time her condition had deteriorated, there were no visits. The court believed that the healthcare professionals who dealt with the victim were potentially “very significant witnesses” and should have been called into the witness box. The fact that they were not rendered the trial unsatisfactory, according to the judge.
The court also heard about the extent of the publicity which the case garnered across Co. Wexford following the first trial. Mr. Justice Birmingham said the issues at stake were so emotional and sensitive, and the coverage so massive and intense, that the retrial “should have been transferred from Wexford to Dublin.”
On causation, Mr Justice Birmingham said Evelyn Joel’s complicated medical history meant 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 judge’s directions to the jury on his duty of care.
Accordingly, Mr Justice Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice Alan Mahon, quashed the couple’s conviction.
Counsel for the Director of Public Prosecutions, Justin Dillon SC, told the court that his client wished to carefully consider the judgment and consider whether to seek a retrial.
