A 45-year-old man has appealed his conviction for the murder of his infant son arguing the trial judge should not have allowed evidence from the postmortem report go before the jury because the pathologist was not available to attend the trial.
John Tighe of Lavallyroe, Ballyhaunis, Co Mayo had pleaded not guilty to murdering six-and-a-half-month-old Joshua Sussbier Tighe at his home on June 1st, 2013.
He was handed a mandatory life sentence after a jury at his Central Criminal Court trial returned a unanimous guilty verdict on March 23rd, 2018.
At the Court of Appeal on Friday lawyers for Tighe argued the trial judge in the case erred in principle in deciding to admit extracts from the postmortem report which was prepared by Dr Khalid Jaber, former Deputy State Pathologist, into evidence before the jury, despite objection from the defence. This was in circumstances where Dr Jaber was not available to give evidence and be cross-examined at the trial.
The trial heard Dr Jaber carried out the postmortem and identified the cause of death as asphyxiation from an obstruction of the throat which blocked the infant’s airway.
This obstruction was an egg-shaped wad of tissue in the child’s pharynx, covering the larynx. It consisted of two pieces of tissue and measured 5.5cm by 3.5cm.
Dr Jaber’s report showed that the baby had a tear to his frenulum and injuries to the inside of his throat and tongue. Tighe told gardaí that these injuries must have been caused by his efforts to retrieve the tissue by putting his fingers into the child’s mouth.
An issue in the trial arose from what counsel for the appellant submitted was Dr Jaber’s refusal to return from abroad to give evidence at the trial. Despite an objection from the defence, the trial judge acceded to an application to admit evidence relating to the cause of death from Dr Roger Malcolmson, a consultant perinatal and paediatric pathologist at the Royal Leicester Infirmary in the UK and to admit the evidence by means of video link.
During the trial, the State’s case was that an infant of Joshua’s age and expected level of development would not have been capable of fashioning an obstruction of this nature from tissue paper, either with his hands or by means of chewing/mastication of the tissue, even if there had been a reasonable possibility that he had grasped it and placed it in his mouth.
During an emergency call Tighe said he was changing the baby’s nappy, went to the toilet, and when he returned the baby was choking and had “gone a bit blue”. Nurses told him to hit, slap and tap the baby’s back and front and attempt to push the obstruction out by pressing below the baby’s sternum. When Tighe said he could see the blockage they told him to grab it and pull it out but he told them he couldn’t and that the baby was not breathing. By the time a doctor arrived, 23 minutes after Tighe made the call, Joshua was dead.
At today’s appeal hearing, counsel for the appellant, Mr Desmond Dockery SC contended that the admission into evidence of part of Dr Jaber’s report pursuant to Section 5 of the Criminal Evidence Act 1992 enabled the respondent to lead evidence from an alternative pathologist, Dr Roger Malcolmson, who was not present at the postmortem and did not conduct an examination of the deceased’s body but relied upon Dr Jaber’s reported findings to draw conclusions as to the cause of death and whether death was accidental.
Mr Dockery also submitted the trial judge erred in principle in deciding to admit evidence from Dr Malcolmson, a Consultant Paediatric Pathologist, before the jury. He said Dr Malcolmson was not in a position to offer first-hand evidence of what occurred at the postmortem because he was not present for the postmortem.
In his direct evidence to the court, Dr Malcolmson said the injuries were “highly suspicious” of inflicted trauma but agreed that it was possible they were caused by the father’s efforts to remove the blockage.
Counsel said Mr Malcomson’s evidence was based instead on what he read in Dr Jaber’s report and on photographs which had been taken at the postmortem by members of An Garda Siochana.
Mr Dockery said Dr Jaber “was simply unwilling to make himself available to the trial”. He said under those circumstances, the pathology report ought not be have been permitted because there was no way of compelling the witness because he was abroad.
Counsel said the admission of the report put information before the jury that had no means of cross examination. “Dr Jaber was not an accuser per se, but he was a witness for the DPP who was the accuser,” said Mr Dockey.
He said the judge decided to present information from Dr Malcolmson, an expert witness from the UK, who had to rely on the “untested and unchallenged” evidence of Dr Jaber.
Mr Justice George Birmingham, Presiding, with Mr Justice John Edwards and Ms Justice Isobel Kennedy, said Dr Jaber’s report was about factual findings.
“It was his findings that Dr Malcolmson based his opinions on. If there’s no controversy, how do you complain about his opinions?” he said.
President Birmingham said Dr Malcolmson could be challenged on the opinions in his report but the facts he based his report on, from Dr Jabbers findings, were factual.
Mr Dockey said Dr Jaber’s report did contain “in the main fact” but also opinion in his view that the injury to the back of the throat was traumatic in nature and trauma usually denotes an impact or force of some kind.
President Birmingham said that the significance of the trauma could have been explored with Dr Malcolmson.” How were you disadvantaged by that?” he asked. “What were you prevented from challenging in terms of what went before the jury as a result of him [Dr Jaber] not being before the court?”
Mr Dockery said the difficulty was one of principle, “that Dr Malcolmson was going much further in what he could deduce from the postmortem than we had reason to believe Dr Jaber would have.”
“It was consequential on the ruling of the trial judge that Dr Malcolmson had to be called and that was disadvantageous,” he added.
The presiding judge said: “Every day of the week people find a witness they had intended to call is unavailable for all sorts of reasons and they have to explore other avenues.” He said sometimes they are better off because the new witness is better but the reverse can happen too.
“Really, to oversimplify, your complaint is that what happened meant that you were disadvantaged, you ended up with a more determined and assertive witness than you were likely to have faced,” he said.
Mr Dockery replied: “The point is the ruling is wrong.”
Counsel for the State, Paul Murray SC, said Mr Dockery had submitted that Dr Malcolmson was called because Dr Jaber was not available but argued that was not the case.
Mr Murray said Dr Hilary Stokes a paediatrician who gave evidence in the case, said further opinion should be sought and, counsel said, “it was against that background” that further reports were sought from a second paediatrician, Dr Peter Keenan in Temple Street and from Dr Malcolmson, a pathologist in the UK.
Mr Murray also told the three-judge court that in his direct evidence to the trial, Dr Malcolmson said: “I’ve come to my own independent review based on the photos, even if we take Dr Jaber out of the equation that would be my view.”
In her evidence in the case, Dr Stokes said a child Joshua’s age could not have formed the wad with its hands or by chewing. She added that babies are not designed to swallow something that size in one go, adding: “It is not in any of us to do that.”
She said the child’s cough and gag reflexes would have expelled it immediately and that in her opinion it would not be possible for an infant Joshua’s age to swallow the wad voluntarily.
Dr Keenan told the jury at the trial that Joshua could have put a pre-balled wad that size into his mouth and closed his mouth but could not have swallowed it to the point where it was found “around the corner” in Joshua’s throat.
Micheal P O’Higgins SC for the defence suggested to the jury that Mr Tighe could have left the pre-balled wad within the baby’s reach and, as per Dr Keenan’s evidence, Joshua could have put it in his own mouth. He further suggested that Mr Tighe’s efforts to remove the wad with his fingers could have caused it to lodge further down the throat.
Forensic scientist Dr Bridget Fleming found that the wad consisted of two pieces of tissue paper, one three-ply and one two-ply. They each measured 260mm by 300ml and came from two different tissue boxes found in Tighe’s home.
Mr Justice John Edwards said the three-judge court would reserve judgment in the case.