The State has urged the Court of Appeal to overturn its decision permitting a retrial of part of Ian Bailey’s civil action over the conduct of the Garda investigation into the 1996 murder of Sophie Toscan du Plantier.
Lawyers for Mr Bailey opposed the application as “unstateable” and disputed the argument that the court’s decision was based on a “plain error”.
Having heard arguments on Wednesday, the three judge appeal court, comprising Ms Justice Mary Finlay Geoghegan, Mr Justice George Birmingham and Mr Justice Gerard Hogan, reserved judgment.
The State contends the court's decision last July to allow one ground of Mr Bailey's appeal against a High Court jury's March 2015 dismissal of his damages case was based on "error" and there are "strong reasons" why it should not stand.
The ground of appeal was whether the High Court trial judge erred in not allowing the jury to decide if alleged leaking by gardaí of confidential information to solicitors for media organisations, prior to the hearing of Mr Bailey’s libel cases against various media in late 2003, breached his constitutional right to privacy.
Mr Bailey has alleged that three gardaí conspired to frame him for the murder in west Cork of Ms Toscan du Plantier. He claims gardaí disclosed information to the media from statements made by Marie Farrell, a key witness in the murder investigation, before the Circuit Court libel proceedings.
Wrong
The Court of Appeal said that particular claim was not statute barred and the trial judge, Mr Justice John Hedigan, was wrong not to let it be decided by the jury.
Luán O Braonáin SC, for the State, on Wednesday said the court has jurisdiction to set aside a finding where there are “strong reasons” for doing so. The strong reasons were the decision involved a “plain error” with “fundamental” consequences for the parties and for the administration of justice, he said. It was very important “finality” be achieved.
The trial judge, contrary to what the Court of Appeal’s judgment indicated, had not made a statute barred “ruling” refusing to let the alleged wrongful disclosure issue go to the jury, he argued. The court erred in treating a ‘no case to answer’ “observation” by Mr Justice Hedigan as a “ruling”.
There was also no admissible evidence to support the claim of alleged wrongful disclosure of witness statements to the media, he submitted. What was involved was “hearsay” and not testimony that could be relied on to support Mr Bailey’s claim.
Elicited
Martin Giblin SC, for Mr Bailey, said the defendants had not “come anywhere near” the necessary threshold for the court to review a written judgment, he said. The alleged wrongful disclosure issue should have been permitted go to the jury and, contrary to what the State argued, there was evidence to support that claim. Much of the evidence was elicited by the State in its cross-examination of Ms Farrell and it had to live with the “consequences” of that.
There was a range of evidence from which it could be inferred gardaí leaked information to media, he said.
Ms Justice Finlay Geoghegan said what was at issue was the question of the alleged disclosure of witness statements by gardaí and whether that matter should have gone to the jury.
In reply to the judge, Mr Munro said the evidence he was relying on included testimony by Ms Farrell during the trial, including testimony elicited in cross-examination, to the effect she had been told her statements were provided to media lawyers.
In closing remarks, Mr O Braonáin said it was not possible to know what a witness might say during cross-examination and the State should not be bound by that.
