Two national newspapers have been found by a circuit court judge to have been in “technical contempt” of court after the collapse of a trial earlier this week.
The second trial of former Clare GP Paschal Carmody was brought to an end on Thursday, when reports of the proceedings published by the two newspapers that day were cited for possible contempt by defence counsel Patrick Marrinan SC.
Today Judge Donagh McDonagh accepted that the two newspapers, The Irish Times and Irish Examiner, had purged their technical contempt after their representatives appeared before him at Ennis Circuit Court to apologise.
However, Judge McDonagh adjourned until May 12th his decision on an application that the two publications should bear the costs of the aborted trial.
Mr Carmody (63) of Ballycuggeran, Killaloe, Co Clare, had pleaded not guilty to nine charges of obtaining more than €16,000 by deception or under false pretences from the families of two terminally ill cancer patients by claiming the treatment could cure their cancer.
Judge McDonagh decided to withdraw the case from the jury after Mr Marrinan said that the two newspaper reports had compromised Mr Carmody’s chances of a fair trial.
Recalling the course of the second trial, which began on March 22nd, Judge McDonagh said today that it had reached a “critical stage”.
He had no great difficulty with the majority of the article, supplied by a freelance journalist to the two publications, but had difficulty with the last two published columns, which summarised legal argument when the jury was not present in court.
This extract, which he quoted to the court, was “so serious” that the jury had to be discharged, Judge McDonagh said.
Defence counsel Mr Marrinan had argued that was what was reported could be interpreted as an “insult” to the jury, and if one juror picked up that the judge was being criticised this could place his client at serious risk of not having a fair trial.
Mr Andrew O'Rorke, of Hayes Solicitors for The Irish Times, said that the newspaper apologised "sincerely, openly and unreservedly" for a "very serious accident", and an "unfortunate error" which had occurred unintentionally and which was not in any way intended to interfere with the court proceedings.
Mr O’Rorke explained that the reporter who had covered the case for a number of newspapers since it began had experienced a serious family illness and subsequent bereavement earlier this week, and had asked an experienced freelance journalist to cover Wednesday’s proceedings for him which he did as a favour on a professional basis.
The journalist had acknowledged the error. The fact that The Irish Times Deputy Editor Paul O'Neill was present in court on the instruction of the editor who was out of the country reflected the newspaper's consciousness of the impact on the trial, and the effect on the accused and the families involved in "this tragic case".
Mr O’Rorke said he had looked at the report subsequently, as he was asked to do on a regular basis in terms of possible defamation, and noted that a lawyer might have picked up on the fact that there had been a ten minute break [during which the jury was absent], but this would not be necessarily clear to a sub-editor or journalist.
Clearly, the legal arguments made at that point were in the absence of a jury, and the newspaper respected the decision the judge had made in relation to them.
Mr John Buckley of Ronan Daly Jermyn Solicitors on behalf of the Irish Examiner said that he and the newspaper's executive editor, Donal O'Hagan, also present, accepted that what had occurred was "inappropriate", and he wished to apologise to the court, to the accused and to the families.
Mr Denis Vaughan Buckley SC for the prosecution said that it had been “grossly negligent” of the two newspapers to publish in the manner which they did, and it was “inappropriate” for the Irish taxpayers to have to bear the burden of the costs of this trial. He said he wished to apply on behalf of the Director of Public Prosecutions for the costs to be imposed on the publications.
Mr Lorcan Staines BL for the defence said he also adopted Mr Vaughan Buckley’s submission.
Mr O’Rorke said that Mr Vaughan Buckley’s application assumed a finding of contempt, and the sanction he was therefore seeking for a 22 day trial [sitting for 17 days] was a very large one. The error had been made on one day only, and he was not aware of any precedent for such a sanction during 30 years of practice. The newspapers were an external third party.
Mr Staines BL for the defence said that the application for costs was an entirely separate issue, and the application was for the second trial only.
The collapse of the trial resulted in costs to the taxpayer, the Garda, the Courts Service and Mr Carmody, and there was precedent.
Mr Vaughan Buckley SC for the prosecution said that the judge did have jurisdiction to award such costs, and Judge Barry White had done so previously.
Judge McDonagh noted that Mr Carmody was not on legal aid, and had paid for 17 days of his trial to date.
Should another trial last another 17 days, would Mr Carmody be expected to fund this from his own resources, or to rely on his legal representatives to act as “gifted amateurs” and charge nothing?
Reconvening after a short break, Judge McDonagh said the Circuit Court must protect the integrity of its own process. He said this process had been “seriously affected” by the newspaper reports.
“It is regrettable that two national newspapers should have published matters they should not have,” he said, and noted that the trial was “fraught with difficulty” and was a very emotive matter as it involved the deaths of loved ones.
This had been an enormously expensive trial in terms of time, finance, energy, resolve — “all for nought”, he said.
Judge McDonagh said he accepted “no malice” was intended in publishing the reports.
“It seems to me that both newspapers have been in technical contempt of court and I so find,” the judge said.
He acknowledged the presence of Irish Times Deputy Editor Paul O'Neill and Executive Editor of the Irish Examiner, Mr O'Hagan and said their appearances purged the newspapers' contempt.
Judge McDonagh said he would adjourn his decision until the costs involved are established. These costs included full prosecution and defence costs and a contribution to Courts Services which would be difficult to estimate.
He adjourned the issue until May 12th and said that both newspapers have until May 9th to lodge written submissions with prosecution and defence barristers.
The judge said that he was transferring the case against Paschal Carmody to Dublin Circuit Criminal Court, but would not finalise the matter until next month. Mr Carmody was requested to return to court on May 12th.