Monday 18 December 2017

The day the trial nearly collapsed six weeks into the hearing

UNBEKNOWN to the jury in the Michaela McAreavey murder trial, the case could have potentially collapsed six weeks into hearing evidence.

The threat surfaced in a dramatic episode of legal argument in the absence of the nine jurors, when a defence lawyer lodged a motion to have them dismissed after claiming their minds had been poisoned by unfair interventions by the judge.

Sanjeev Teeluckdharry was referring to a series of questions Justice Prithviraj Fecknah posed his client Avinash Treebhoowoon during his cross examination by the prosecution.

These, he alleged, may have "unfairly influenced and poisoned the jury's right thinking".

"It may appear to the reasonable objective observer that the court has embarked on cross examination of accused number one (Treebhoowoon) in such a way as to convey the impression that his lordship may have descended into the arena and has had his vision clouded by the dust of conflict between the parties," he claimed.

Mr Teeluckdharry's motion suggested two courses of actions: that all judicial interventions he raised concern on be struck from the record, or the nuclear option - that the jury be dismissed outright.

The judge sat impassively as the submission was being outlined, but chief prosecutor Mehdi Manrakhan reacted furiously.

"It's the first time we are hearing of this motion this morning, we did not get any advance notice of this motion," he said.

"The motion constitutes a direct attack on the impartiality of your lordship."

He noted that all 30 prosecution witnesses had been subject to cross examination and during that exercise the judge had also intervened.

"What is sauce for the gander is also sauce for the goose," he said.

The day before Mr Teeluckdharry had asked for time to review transcripts of proceedings so he could prepare to re-examine his client on the stand.

"My learned friend in chambers yesterday at no point in time gave us impression that he was going to challenge your lordship," said Mr Manrakhan.

"On the contrary he told us that he was undertaking to finish his case today and it was in that respect that we all agreed we would give him some time to consider the proceedings so he could re-examine his client.

"This leads me my lord to conclude that my learned friend for the defence of accused number one is of utter bad faith and is using a delaying tactic.

"This motion should be set aside pure and simple."

Rama Valayden, representing accused number two Sandip Moneea, stood to make a brief comment on developments.

"There are big consequences one way or the other," he warned.

"We are on very slippery ground."

Mr Teeluckdharry had pointed out specific instances during the first day of cross examination and said he needed further time to examine the second day's transcripts before completing his motion.

A shocked court adjourned after the judge granted the lawyer time to complete the exercise; the thought of a potential collapse at the forefront of many minds.

Mrs McAreavey's widower John looked particularly concerned.

A day that should have seen Treebhoowoon's defence case rest, was instead one of waiting and wondering.

The jury was oblivious to it all.

Almost four hours later and after a long meeting between the lawyers and Justice Fecknah in his chambers the court finally reconvened.

To the relief of many, it appeared a compromise had been fashioned.

The judge said before proceedings went further he would like to make some remarks.

He said he was well aware of the legal principles governing the adversarial trial system and that a judge should be an independent arbitrator as "matters are thrashed out between counsel".

But he said there were exceptions when a judge was permitted to intervene.

"The judge is allowed to put a few questions to witnesses to clarify matters," he explained.

He added: "Judicial interventions in this matter have been done in that spirit.

"Mr Teeluckdharry gave us the impression that accused number one was willing to come forward and submit himself for cross examination even though he had a right not to do so.

"He also gave the impression accused number one was willing to give detailed answers to questions and clarify whatever matters that had to be clarified.

"I allowed myself to ask a few questions on behalf of the jury with a view to clarify matters in light of the stand taken by accused number one that he was prepared to answer questions."

He then referred to an instance when the defence lawyer had spoken of his client's willingness to answer all matters.

When prompted by the judge to take a stand in light of his remarks, Mr Teeluckdharry rose to inform the court of a change in position.

"In view of your lordship's observations I would be willing to withdraw the motion I made this morning, on two conditions," he said.

The lawyer said he wanted to be given time to re-examine on the specific areas the judge had pressed on and that a direction be given to the jury at the end of the trial as to how to approach the judicial interventions.

It was a suggestion that was accepted by all parties.

"I wish to place on record that the motion is officially withdraw," said the judge.

By that stage the clock was drawing toward 3pm.

"I believe it would be futile to continue with proceedings," Justice Fecknah added.

"It has been a taxing day for all of us having to deal with this thorny point of law."

At that the jury was brought into court and simply told that a "matter of law" being discussed by the court had now be "dealt with".

But hopes the issue had been put to rest were dealt a blow when court resumed on Monday morning. After Mr Teeluckdharry's request to put leading questions to his client during re-examination was checked by the judge, he again lodged a motion.

This time he called for legal proceedings against Treebhoowoon to be permanently halted.

Justice Fecknah interrupted the lawyer mid-way through his address and ordered all counsel into chambers.

When they emerged 35 minutes later, the judge explained he had been intending to bring forward his direction to the jury on the issue to then and there, and said he had also decided that all questions he had asked during cross examination should be expunged from the record.

Presented with these concessions, Mr Teeluckdharry said he would not insist on his motion.

The storm, it seemed, had finally blown over.

Before jurors was allowed to begin hearing evidence again, the judge told them that a "technical issue" meant they should "purely and simply disregard and ignore" the questions he put to Treebhoowoon and the answers they prompted.

The foreman of the jury acceded to the request and he and his eight colleagues settled down to refocus on the next phase of the trial.

They were unaware that if things had taken a different course they might well have been going home for good.

Promoted Links

Today's news headlines, directly to your inbox every morning.

Promoted Links

Editor's Choice

Also in Irish News