A juror in the 2012 trial of a Wexford couple, whom the defence team did not have a chance to challenge, could have created a "12 Angry Men" situation, the Court of Appeal has been told.
The 12th juror, in the trial of Eleanor Joel and Jonathan Costen, found guilty of unlawful killing by neglect of Evelyn Joel, was sworn in as a replacement for a juror who was ill. None of the defence team for Ms Joel were present, while a junior counsel only was present for Mr Costen.
John O'Kelly SC, for Costen, said that juror could have been a very good advocate one way or the other. Referencing the Reginald Rose play, and film starring Henry Fonda, in which one juror convinces the rest to change their finding to not guilty, he said "it could have been a 12 Angry Men situation".
“It could have had a significant effect on the trial,” he said.
In 2012, Joel (41) and her partner Costen (43), were found guilty at Wexford Circuit Criminal Court of the unlawful killing of Ms Joel’s mother, Evelyn Joel, by neglect, in their home at Cluain Dara, Enniscorthy, in January 2006.
It was their second trial; the jury was unable to reach a verdict on the first occasion in 2011.
In March 2013, at their sentence hearing, Judge Seán O’Donnabháin gave the couple a two-year suspended sentence on condition they carry out 230 hours of community service.
They have appealed their convictions and the Director of Public Prosecutions has appealed their sentence.
Rosario Boyle SC, for Joel, said since a judgment pre-dating the State, if someone has been denied the right to challenge a juror, the trial was deemed null and void.
She said this had not been superseded by legislation and was “still the law today”.
Other grounds for appeal raised included that the judge erred in not transferring the case from Wexford to Dublin. It was not just the negative publicity in Wexford, Ms Boyle said; the case was so notorious in the local area it was not possible for her client to have her case heard by a jury panel that had not already formed a view one way or the other.
Ms Boyle also argued the Judge had “stymied” attempts to raise the responsibilities of others, including the Health Service Executive, by telling the jury the negligence of others was not a matter for them.
Mrs Joel was “actually under their care” at the time, she said, and the fact they had not visited for a period, did not absolve them of their responsibilities. She said the judge had prevented the jury from considering if HSE failures were responsible for Mrs Joel’s death.
Other matters raised in the appeal included the unavailability of certain witnesses, and issues around the cause of Mrs Joel’s death.
Mr O’Kelly said it should have been explained to the jury that Mrs Joel’s cause of death was pneumonia, due to her underlying Multiple Sclerosis, and it was caused by a different organism to the one found in her bedsores.
He also said Costen had repeatedly asked Mrs Joel to leave their home and there was “no way by any stretch of the imagination” that his client had a duty of care to her.
On Tuesday, Justin Dillon SC, for the DPP, said the judge’s refusal to transfer the case out of Wexford could not be not appealed and the mathematics of an 11-1 verdict were against submissions that the couple were deprived of a chance to challenge a juror.
He also said there came a point when a duty of care towards Mrs Joel arose for Costen.
Mrs Joel was helpless, she was childlike, and when Costen saw her he knew she needed help, he said.
On Wednesday, Mr Justice George Birmingham, sitting with Mr Justice Alan Mahon and Mr Justice Garrett Sheehan, said they would reserve their judgment. Once it was delivered, depending on whether the appeal was rejected or not, they would consider the DPP’s sentencing appeal.
