Tuesday 21 November 2017

Judge 'unfairly disparaged' key witness during Ian Bailey's case for damages against State - court hears

Ian Bailey. Photo: Collins
Ian Bailey. Photo: Collins

Tim Healy

A HIGH Court judge “unfairly disparaged” key witness Marie Farrell during Ian Bailey’s civil case for damages against the Garda Commissioner and State, the Court of Appeal has been told.

Mr Justice John Hedigan’s refusal to discharge the jury after warning Ms Farrell about perjury in front of them irreparably damaged Mr Bailey’s case, his lawyers submitted. 

Ms Farrell was a witness for Mr Bailey.

Mr Bailey also claims the judge's handling of the case meant the jury never got to address a range of matters which he alleges demonstrated a conspiracy to frame him for the 1996 murder in west Cork of French film maker Sophie Toscan du Plantier. 

Those alleged acts included leaking his name to the media the night before his first arrest and paying former British soldier Martin Graham cash and drugs to implicate him.

They also included the arrest of his partner Jules Thomas and her daughter Fenella with a view to pressuring him and persisting in advancing Marie Farrell as a witness against him despite "clear warnings and misgivings" from the DPP's office about her evidence.

Evidence from former DPPs Eamonn Barnes and James Hamilton, along with evidence of Robert Sheehan, a solicitor in the DPP's office who was critical of the Garda file relating to Mr Bailey, was wrongly curtailed by the trial judge, it is argued.

Mr Sheehan was not permitted to refer to his own contemporaneous notes, the court was told.

These are among 17 grounds advanced in Mr Bailey’s appeal over the jury’s dismissal in March 2015 of his claim gardai conspired to frame him for the murder of Ms du Plantier, whose battered body was found hear her holiday home near Schull in late December 1996.  

Mr Bailey, who has always denied any involvement in the murder, was in court with his partner Jules Thomas on Tuesday for the opening of the appeal before a three judge Court of Appeal.

Several grounds of appeal concern Mr Justice Hedigan’s decision not to allow most of Mr Bailey’s case, including his claims of wrongful arrest, be decided by the jury on grounds those were statute barred, brought outside the relevant six year time limit for such claims.

The defendants, relying on the statute of limitations, had applied towards the end of the 64 day case to remove it from the jury.

Tom Creed SC, and Ronan Munro SC, for Mr Bailey, said the judge’s ruling on day 62 meant the jury got no opportunity to consider the conspiracy claims in full or to decide important issues relating to the alleged conspiracy.

Mr Creed said the State’s application was made too late and involved an abuse of process for reasons including substantial costs had been incurred by then. 

The claim of an “over-arching” Garda conspiracy against Mr Bailey was not statute barred but the ruling removed important issues from the jury relating to the alleged conspiracy, he argued. 

Mr Bailey's claim for damages for breach of constitutional rights, including to his reputation and to privacy, also did not go to the jury which had no opportunity to consider whether or not they accepted aspects of the Garda evidence, he said.

Mr Munro said the conspiracy claim left to the jury was too narrow in the context of the case being advanced by Mr Bailey and there was ample evidence of a “residual conspiracy” which did not go to them.

They got no opportunity, for example, to consider claims Marie Farrell was pressurised to give evidence against Mr Bailey in separate libel proceedings brought by him.

Earlier, Mr Bailey’s side got a brief adjournment to examine an affidavit of the State and Garda Commissioner arising from a recent Sunday Times article concerning examination by the Fennelly Commission of tapes of phone calls to and from Bandon garda station.

The article raised issues whether a number of tapes of calls had been discovered for Mr Bailey’s case.

After the adjournment, Mr Creed, for Mr Bailey, said he was not raising any issue at this point while Paul O’Higgins SC, for the State, said the matter was of no relevance to the appeal. The Commission had reviewed some, but not all, of 45,000 hours of calls, he said.

Ms Justice Mary Finlay Geoghegan said, “even if there was something there”, it could not affect the  grounds of appeal.

Separately, a decision is pending by the High Court on a European Arrest Warrant issued by the French authorities aimed at having Mr Bailey extradited to stand trial in France for voluntary homicide.

The appeal continues before the three-judge court.

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