Michael McDowell (Dublin South East, Progressive Democrats)

I thank the Deputies for the opportunity to clarify some of the questions raised in this House and elsewhere on this subject in recent days.

Brian Murphy's death on 31 August 2000, which date must be remembered, was a tragic loss of a young man. I know we all sympathise with his family, not only in their obvious grief on his death but also in their perception that the criminal justice system has somehow let them down. It is also fair to say there is understandable frustration in the public mind that it has not been possible to identify and hold someone to account in criminal law directly for the young man's death. It should be remembered that two of the accused were convicted of violent disorder arising from the incident in question. Dermot Laide, in fairness to him, has accepted the correctness of his own conviction for violent disorder.

Acknowledging the family's frustration should not prompt us, as politicians, to gloss over the complexity of the matter or lash out at convenient scapegoats. It is evident that the elaborate investigation into Brian Murphy's death presented very real challenges for the Garda. The circumstances of the incident, the number of persons involved and the impact of the extraordinary amount of alcohol apparently consumed all gave rise to significant difficulties in securing satisfactory evidence and reliably establishing causation and criminal liability to a level that would stand up to scrutiny.

There is no doubt that very considerable efforts were made to bring prosecutions successfully. However, that the end result disappoints does not necessarily impugn the entire process or imply negligence or failure on the part of any of those involved. I will not labour the point but, as everybody in this House will recognise, there are good reasons our system requires that the burden of establishing guilt in criminal matters be a heavy one. It involves establishing proof beyond reasonable doubt. It might be tempting to some to attribute criminal responsibility at lower levels of probability or with less evidence but the end result would undoubtedly give rise to injustice.

I am also concerned at the attempt to direct whatever frustration exists surrounding these events into a critique of the arrangements made for Professor Harbison's retirement. I prosecuted and defended in many cases in which Professor Harbison appeared as a witness and noted that he was totally professional in the way he carried out his functions. He was, almost to a fault, prepared to concede that his own view might be wrong and to explore, with the counsel in cross-examination, alternative hypotheses. He was humble in this respect and did not state he would not budge from his point of view on the cause of death. He was prepared to deal fairly with the questions put to him by advocates on behalf of the accused where they disagreed with the view he took.

To clarify matters, in January 2003 gardaí suggested to a senior official of the Department that Professor Harbison should no longer take on new cases given that he was advancing in years, being then about 68 years of age. The role of State Pathologist is obviously a very onerous one, bearing in mind that murder cases take considerable time from the time of arrest to reach trial. This frequently took two years. I am about to publish, in the near future, a report dealing with the question of delay between arrest and trial in the justice system in respect of serious cases of rape and murder.

In the aforementioned circumstances, the decision of the Garda to draw the Department's attention to the fact that a 68-year old man was in the breach in the gap dealing with these matters was prudent and reasonable. This leaves out entirely the question of cases in which no person was suspected, arrested or under charge, and in which his evidence might become relevant in three, five or eight years. Quite clearly, there was a legitimate cause for concern.

Professor Harbison subsequently retired as State Pathologist and performed no new State autopsies since January 2003. The offence in question occurred in August 2000. As part of the arrangements made for his retirement, it was agreed that Professor Harbison be retained on a consultancy basis to conclude the cases in which he had been involved prior to January 2003. This was necessarily a finite number and represented a sensible means of phasing out his involvement as a witness in the backlog of cases that would arise from the autopsy and pathology work he had done on behalf of the State. On examining the matter, it is very hard to determine what alternative course of action could have been followed by the State. I believe there was none.

Since January 2003, Professor Harbison has continued to give expert evidence in these cases. He has testified in the courts, has been subject to cross-examination, re-examination and examination in chief. The first suggestion I received that illness might prevent him testifying in further cases was made within the past two months when a journalist made inquiries of my press officer on the subject. On receipt of these inquiries, I was informed that Professor Harbison had indeed become unwell and might not be able to testify. My understanding is that he recently withdrew from the Brian Murphy case on the advice of his doctor.

My Department has no way of determining how many cases may be outstanding as the bringing of prosecutions, retrials, etc., is entirely within the remit of the Director of Public Prosecutions. However, given that Professor Harbison has not performed any new post mortems for more than three years, it seems reasonable to infer that there is no significant number of current cases still awaiting trial. Out of deference to his privacy and in acknowledgement of his immense contribution to the State over his 28-year career, it is preferable that we consider future issues — I believe there are such issues — in general rather than in the particular context of what he has done for us.

The question of the impact of non-availability of an expert or other witness on a trial gives rise to a broad range of issues of very general application. However, it should be remembered that vital witnesses become unavailable because of illness or infirmity or death. This always has a consequence for pending trials. Equally, we should recall that a violent attempt was made to take out Dr. James Donovan, who was the State's chief forensic scientist, by way of assassination to pervert the course of justice.

Our system places significant emphasis on the provision of direct evidence which can be cross-examined and challenged. The criminal law already makes provision, in sections 14 or 15 of the 1967 Act — I may be incorrect about this — to a somewhat limited extent in respect of cases which have been returned for trial, for the taking of depositions from witnesses who may not be expected to be available when the case comes to trial. However, this does not deal with a witness with many cases on hand, in which, due to some totally unpredictable circumstance, such as accidental death or a cerebral haemorrhage, he or she would become incapable of testifying. I intend to study extending the scope of the law to a more general provision for taking account of circumstances where a witness is no longer available for certain extraordinary reasons. However, as Deputy Rabbitte noted, I will have to approach this with caution. Should we allow an exception to the hearsay rule which would, for instance, allow expert evidence in murder trials to be given on the basis of notes and reports of pathologists who are unavailable because of illness or death? There are obvious risks associated with reducing the protections available to the accused, especially where particular reliance is to be made on expert evidence. On the other hand it is reasonable to ask the question, especially in an old case. There have been cases where a person was strangled and 20 years later, somebody becomes available as an accused person either through another person's testimony, forensic evidence or a confession. In those cases we must ask whether it is reasonable to expect that the original pathologist who carried out the post mortem would still be available to give oral evidence to a jury.

Deputies Rabbitte and Carey referred to the suggestion that the State pathologists could operate in pairs to allow for a fallback witness in the event of one not being available to testify. This approach, which I understand is that applied in Scotland, is certainly worth considering. However, I understand Scotland has a different system from that which applies in England, Wales and Northern Ireland. It does not have a state pathologist of the kind that we have. It delegates and contracts out to four universities the holding of autopsies and the provision of pathological reports in respect of those offences.

While it may well be prudent to provide for two people to preside at every autopsy, that would not solve every problem. To get two people to the scene of every crime as well as to the autopsy would not in every case be guaranteed. There are significant logistical and efficiency considerations which would need to be reviewed if we were routinely to double up in the assignment of expert witnesses across the board. In the du Plantier case, to which Deputy Jim O'Keeffe referred, it was hard enough to get one person to that neck of the woods in a hurry. To get two people there at the wrong time of the year could be very difficult.

We would also need to consider the possibility that such an approach might give rise to complications in the event of divergence on the part of the experts concerned. I am not too concerned about this aspect because if we have two opinions from people reviewing the same evidence, the accused is entitled to the benefit of the doubt, provided that both are reasonably expert. Nevertheless I am disposed to give active consideration to this option.

I intend to raise these issues with Professor Marie Cassidy in the coming days and to explore carefully the various options which might be open to us. My Department is fully supportive of her work and has increased the resources available to her office in recent years. Arrangements are also under way to improve her office and laboratory facilities and to make available a driver service for when the pathologists are on call. If there are other ways in which the Department of Justice, Equality and Law Reform can work with her to ensure that the State pathology service continues to make an effective contribution, we will certainly pursue them.

There are a number of serious problems with Deputy Rabbitte's remarks. First, no one has suggested that Professor Harbison was in any way unfit or unwell at the time he carried out the post mortem or made his findings in this case in early September 2000. Presumably his testimony in the court case accorded with his findings at that time. The report of Professor Cassidy, as she makes clear, was not done on the basis of a physical examination of the body of the late Brian Murphy or on the basis of access to Professor Harbison's report on the issue. It would be wrong to infer, as Deputy Rabbitte seems to have done, that Professor Harbison's evidence was wrong or that he would, if in good health, have been unable to defend and validate his original findings. I assume that Professor Harbison prepared a report on Brian Murphy's post mortem in 2000 and that he was extensively and rigorously examined and cross-examined by counsel for all the accused about that report at the trial in February 2004. Nobody has suggested to me that in some way he ducked out of cross-examination or that the jury did not hear him put to the test on his testimony.

Equally it is wrong to suggest that the Department was aware of any problem with Professor Harbison's health before such problems became known to the Office of the Director of Public Prosecutions. That office is intimately acquainted with criminal investigations and is in direct communications and privity with the Garda regarding witnesses, evidence and the quality of evidence. These matters are not discussed generally in the Department of Justice, Equality and Law Reform.

In answer to one of Deputy Rabbitte's questions, I have never been given any information that would lead me to believe that any testimony in any other case given by Professor Harbison was suspect or unreliable. I presume in all those cases counsel was available to cross-examine and challenge anything that seemed unlikely or untrue.

It is wholly wrong to suggest that the Government is at sixes and sevens on the outcome of this case. The case is one in which the Director of Public Prosecutions has charge and responsibility. The Department of Justice, Equality and Law Reform is not involved in cases of this type and is not in a position to answer detailed questions about the case or its progress. It follows that the Taoiseach of the day is not in a position to answer in detail on these matters. We have an independent system and the Taoiseach is not in a position at Leaders' Questions to give the House authoritative or clear indications of factors which did or did not come into play in any particular prosecution. Long may that be the case.

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