John Tighe will remain in prison serving his life sentence for the murder of his infant son Joshua, who fatally choked on a ball of tissue, after the Court of Appeal on Friday dismissed his bid to overturn his conviction.
Lawyers for Tighe (45) had argued that the trial judge should not have allowed evidence from the postmortem report to go before the jury because the pathologist who carried it out was not available to attend the trial in person.
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.
Tighe lived in Lavallyroe all his life and met Natasha Sussbier through a friend in 2011 when she was aged 17. Tighe told gardai that he sent her 1,500 texts every week before she moved in with him in early 2012. Natasha soon got pregnant and Joshua was born in November of that year.
The relationship, however, had become strained and Natasha moved out only a few months after the birth. They agreed to share custody of Joshua, three days each and they would alternate the seventh day.
On May 31st, 2013 Natasha and her new boyfriend posted a message to Facebook stating: “Daniel Sommerville and Natasha Sussbier are in a relationship.” Tighe collected Joshua from Natasha that evening and on the following afternoon, the child choked to death on the wad of tissue. The prosecution suggested that the Facebook message formed the background to the assault on Joshua, but Tighe told gardai he knew about Natasha’s new relationship before it was revealed on Facebook, having seen Natasha and Daniel holding hands.
The trial heard that 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.
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Lawyers for Tighe argued that 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 the defence’s objection. 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.
The 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 gardai 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 expert opinion 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.
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.
Desmond Dockery SC, for Tighe, had said because Dr Jaber was out of the jurisdiction he could not be compelled to come back to Ireland to give evidence and therefore could not be cross-examined as is his client’s right in the process of a fair trial.
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 to have been permitted.
In dismissing the appeal on Friday, Ms Justice Isobel Kennedy said the trial judge permitted extracts of the post-mortem to be admitted as it amounted to a “‘record’ done by a registered medical practitioner of an examination of a dead person” and said that these ‘records’ are normally confined to factual matters in terms of findings recorded on examination.
“Given that the trial judge excluded any opinion evidence on foot of Dr Jaber’s examination, the material admitted clearly constituted a ‘record’ within the terms,” she said.
Regarding the absence of the opportunity to cross-examine Dr Jaber, Ms Justice Kennedy said that simply because Dr Jaber could not be examined, it did not mean the defence was prejudiced. “Dr Malcolmson was very clear that any absence of tests or perceived procedural failings did not undermine the conclusions and opinions offered. Should Dr Jaber have been cross-examined, it is difficult to see how that cross-examination could have aided the defence, particularly where Dr Malcolmson gave the opinion that their absence did not undermine the conclusions,” the judge found.
“Once the extracts from the report were admitted, where the trial judge ruled that the opinion of Dr Jaber was inadmissible, the report formed part of the factual matrix for the jury’s consideration,” said Ms Justice Kennedy.
“Dr Malcolmson came to his conclusions based on those uncontroverted facts, and uncontroverted they were, absent of any alternative propositions put in evidence and in our view he was entitled to do so and to give that evidence.
Ms Justice Kennedy said that no unfairness had accrued from this course of action and the appellant was entitled to cross-examine Dr Malcolmson on his conclusions.
“We are not persuaded that the admission of Dr Malcolmson’s evidence breached the appellant’s right to natural and constitutional justice,” said the judge, who then dismissed the appeal.