Couple’s convictions for killing woman quashed
Pair may face retrial on charge of causing MS sufferer’s death
A COUPLE may face a retrial after their convictions following the death of MS sufferer Evelyn Joel – who had been found lying in her own filth before her death – were overturned yesterday.
In December 2012, Eleanor Joel, 42, and her partner, Jonathan Costen, 44, were convicted at Wexford Circuit Court of the manslaughter by neglect of Evelyn Joel – Eleanor’s mother – by a majority verdict of 11 to one.
Both appealed the verdicts, and yesterday the Court of Appeal found in their favour, and directed their convictions be quashed.
Both had been sentenced to two years’ imprisonment, suspended on condition they perform 240 hours of community service.
The Director of Public Prosecutions had sought a review of the sentences imposed on
‘She had bed sores that were infected’
grounds of undue leniency, but the Court of Appeal did not deliver judgment on this aspect of the case yesterday. Counsel for the DPP, Justin Dillon SC, said his client would consider the judgment given yesterday, and decide whether to pursue a retrial.
Mr Justice George Birmingham, sitting with judges Garrett Sheehan and Alan Mahon, noted the appellants had lived together at Cluain Dara, Enniscorthy, Co. Wexford, with their two children, who were 12 and nine at the date of trial. In late November 2004, Eleanor Joel’s mother Evelyn moved into their house.
The arrangement was initially intended to be temporary, lasting until Evelyn Joel was offered local authority accommodation as she was suffering from advanced primary progressive multiple sclerosis.
Following her diagnosis in 2000, Evelyn Joel had been offered and declined a long-term hospital bed in Wexford General Hospital. In December 2005, while she was still living at her daughter’s home, her condition deteriorated and she was admitted by ambulance to hospital in Wexford on New Year’s Day 2006.
Mr Justice Birmingham noted: ‘The ambulance personnel... were greatly disturbed at the condition in which they found their patient.’
He continued: ‘The ambulance personnel found the patient in very poor condition, the bed that she was lying in was filthy, due the fact that she was doubly incontinent and her lower body was covered in faeces.
‘She had extensive bed sores which were infected.
‘On admission to hospital, she was bathed, her bed sores were attended to, she was provided with antibiotics to which she responded.’
He said she initially made progress in response to treatment, but then developed pneumonia, and died in the hospital on January 7, 2006.
‘Following on from the death of Evelyn Joel, both appellants were charged with manslaughter and the case advanced against them was that her death was due to their neglect while she was living in their home,’ the judge said.
A number of grounds of appeal were put forward by the appellants.
The Court of Appeal agreed the trial should have been transferred from Wexford to Dublin, as both had wished, due to it being a retrial of a case which had already received extensive local media coverage.
Judge Birmingham said the trial was unsatisfactory, as important witnesses were not called by the prosecution. These included healthcare professionals who had dealt with Evelyn Joel at Cluain Dara.
They were particularly relevant as the defence had claimed that there was gross negligence on the part of the HSE, and that substantial responsibility for the death of Mrs Joel rested with the HSE and its employees, the judge said.
He said that while there was no indication of criminal conduct on the part of the HSE, the nature of its interaction with Evelyn Joel while in Cluain Dara ‘gave rise to concern and disquiet’.
Between September 6, 2005, and January 1, 2006, she was not visited by any HSE nurse, despite her deteriorating condition, the judge said.
Jonathan Costen raised a specific appeal issue concerning whether he had any duty of care to Mrs Joel, whom he had wanted to leave the house from the outset.
Judge Birmingham said the trial judge had refused a defence request to tell the jury there was no general duty of care, for fear of potentially confusing the jury. Ruling in favour of Mr Costen, the judge said: ‘It was desirable that it be made clear to the jury at the starting point, the general position is that there is no obligation to care for another, but that there are exceptions to that and it was for the prosecution to establish beyond reasonable doubt that Mr Costen came within one of those exceptional categories.’
He said: ‘In summary then, as each appellant has succeeded on a number of grounds, the court will quash both convictions.’
HSE conduct ‘gave rise to concern’