Court report - the other judgments: An internal National Irish Bank memorandum, which referred to "hot" money, should not have been put before the jury in the Beverley Cooper-Flynn libel trial, one of the Supreme Court judges found. However, he was satisfied that no substantial wrong or miscarriage arose from admission of the document which would justify the ordering of a new trial, Mr Justice Fennelly said.
While rejecting all of Ms Cooper-Flynn's other grounds of appeal, Mr Justice Fennelly upheld her argument about the non-admissibility of an NIB letter of 1990, which document the defence had sought to introduce as evidence of an alleged NIB policy to assist clients to evade tax.
He found that the document should not have been placed before the jury without establishing that Ms Cooper-Flynn had received it and that it was also inadmissible because it amounted to hearsay. However, the admission of the letter did not justify a new trial.
Ms Cooper-Flynn had denied receiving it and the court had been told that the letter was never actually sent. The totality of the evidence, including from other persons who claimed Ms Cooper-Flynn encouraged them to evade tax, was enough to nullify any possibly prejudicial effect of the wrongly-admitted document.
Mrs Justice Denham said that a previous Supreme Court decision (Arnott v O'Keeffe) on majority voting did not mean that the same nine jurors must decide all issues in a case where there were separate issues that were not dependent on each other, were not components of a single issue and were related to separate defendants. At issue here was whether there had been a substantial wrong or a miscarriage of justice, and that had not been established.
Mr Justice Geoghegan said he was concerned about two issues: the failure of the trial judge to give correct directions to the jury on majority verdicts and the admissibility of the NIB document. The Supreme Court decision in Arnott v O'Keeffe was clear authority for the view that if a number of questions go to a jury, they must be either answered unanimously by the jury or, where a majority of nine or more agree on one question, that same majority must agree the others.
Unfortunately, this was not made clear by the trial judge in this case. The ordinary principles should apply in considering whether a misdirection should lead to a new trial, he said. To order a new trial on the basis of a direction to the jury, which direction was consented to by all the parties, would clearly be unjust.
Mr Justice Geoghegan also found that the NIB document was admissible and did not breach the hearsay rule. The document was produced by its author in the witness-box and was tendered ultimately not as evidence of the truth of its contents but as a statement of the practice in the division in the bank of which Ms Cooper-Flynn was a member.
Ms Justice McGuinness said the Supreme Court had made clear in the Arnott case that a trial judge was required to tell a jury that at least nine members had to agree an answer to questions before them and the same nine must agree all questions.
The Arnott case dealt with a single incident, a road traffic accident. In this case, there was no logical contradiction in a juror deciding that they did not accept Mr Howard's evidence, and therefore answering No to Question 1, but deciding that they did accept the evidence of the other witnesses and therefore answering Yes to Question 2. While the trial judge's directions were not in accordance with the Arnott decision, it did not appear to her that any substantial wrong or miscarriage resulted.
