A HIGH Court judge probably should not have warned key witness Marie Farrell about perjury in front of the jury hearing Ian Bailey’s damages case but it was a ‘harmless error’, the State has told the Court of Appeal.
The warning by Mr Justice John Hedigan to Ms Farrell, when seen in the entire circumstances of Mr Bailey’s civil case against the Garda Commissioner and State, could not be regarded as having biased the jury against Mr Bailey, Paul O’Higgins SC argued.
He was opposing Mr Bailey’s appeal over the jury’s March 2015 dismissal of his claim that various gardai conspired to frame him for the late 1996 murder in West Cork of French film maker Sophie Toscan du Plantier.
The appeal concluded, after two days, on Wednesday, and Ms Justice Mary Finlay Geoghegan, sitting with Mr Justice George Birmingham and Mr Justice Gerard Hogan, said it raised ‘important and difficult issues’ and the court was reserving judgment.
Mr Bailey’s 17 grounds of appeal include claims that Mr Justice Hedigan should not, on day 62 of the 64-day case, and following a State application, have withdrawn from the jury most of Mr Bailey’s claims, including of wrongful arrest, on grounds that they were statute-barred.
Mr Bailey maintains that meant the jury was left to consider only a ‘narrow’ aspect of his conspiracy claim.
The State has cross-appealed the judge’s decision insofar as it allowed the jury consider whether three gardai conspired to frame Mr Bailey for murder. The State contends the conspiracy claim was imprecisely pleaded and was also statute-barred.
In his arguments, Mr O’Higgins said the trial judge’s ‘warning or reminder’ about perjury was given in a context including Ms Farrell having made ‘sensational’ allegations against gardai, including of sexual impropriety, and admitting perjuring herself in separate libel proceedings by Mr Bailey against various media.
Mr O’Higgins agreed with Mr Justice Hogan he himself should probably not have said to Ms Farrell when cross-examining her: ‘I think you’re lying.’
Mr O’Higgins also rejected arguments the trial judge wrongly curtailed evidence given by former DPPs Eamonn Barnes and James Hamilton.
The trial judge was entitled not to allow Robert Sheehan, a solicitor in the DPP’s office who criticised the Garda investigation, give evidence about his 2001 written analysis of that investigation, including his views of the unreliability of Ms Farrell as a witness, counsel submitted.
Mr Sheehan was dealing with whether there was material to charge Mr Bailey, which was not an issue in the High Court case, and seeking to give opinion evidence when he was not an expert witness, he said.
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 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.