A HIGH Court judge said yesterday he accepted that the journalist Mr Gene Kerrigan did not con spire with anyone when he wrote an article in the Sunday In dependent last weekend relating to the libel action by the Minister for Social Welfare, Mr De Rossa.
Mr Justice McCracken said he also accepted that Mr Kerrigan had not been told to write last Sunday's article in any particular form.
The judge said he was disturbed by the fact that Mr Kerrigan's article had been vetted by lawyers on behalf of the Sunday In dependent. Whatever about Mr Kerrigan, who was a layman, he did not think the opening two paragraphs should ever have been passed by legal advisers.
On Tuesday, Mr Justice McCracken had discharged the jury on the eighth day of the trial of the libel action by Mr De Rossa against the Sunday Independent. The libel action arose from an article by Mr Eamon Dunphy on December 13th, 1992.
The judge discharged the jury following the article by Mr Kerrigan in last weekend's Sunday Independent. The judge said certain things had occurred over the weekend. It was suggested they might have influenced members of the jury.
Yesterday, Mr Kevin Feeney SC, for Independent Newspapers plc, said Mr Kerrigan was in court. On Tuesday, it had been suggested in argument on behalf of Mr De Rossa that there had been some element of wilful intent or deliberate conspiracy on the part of the Sunday Independent to interfere with the course of the trial. That was absolutely refuted.
Mr Kerrigan's article was a genuine attempt on his part to convey succinctly what was occurring in court and explain it to readers. Entirely of his own volition he had endeavoured to explain to readers what had happened.
Mr Kerrigan was willing to give evidence in relation to the matter and explain how he prepared the article and the circumstances of how it came to be written.
Mr Feeney said when Mr Kerrigan became aware of the suggestions, he was desirous to come to court. His reputation had also been put into issue. Matters had been stated in court which he had no opportunity of dealing with himself.
Mr Justice McCracken said in view of the possibility of other proceedings being taken at the instance of Mr De Rossa or the Director of Public Prosecutions (DPP) or anyone else, he (judge) was not obliging Mr Kerrigan to say anything. But if he wished to do so, he would be happy to hear him.
Mr Feeney said he was more than willing to call Mr Kerrigan.
In evidence, Mr Kerrigan said he had always written for monthly or weekly publications. He had attempted to seek to summarise and give more or less chronological accounts so far of the events in court.
He had attended a good lot of the De Rossa case and seen transcripts.
Mr Feeney asked if when writing his article for last Sunday, he was given any instructions or directions as to how or what he might write.
Mr Kerrigan said the week before the case began, he spoke to Mr Willie Kealy, deputy editor of the Sunday Independent, who mentioned the case was coming up. There was no discussion. He (Mr Kerrigan) had not known it was coming up.
He spoke to Mr Aengus Fanning, editor of the Sunday Independent, on the telephone last Saturday night about something else. Mr Fanning asked how he thought the case was going. He (Mr Kerrigan) said he had not a clue and that you could never tell until the jury came back. That was the entire discussion.
Asked if he received any instructions about how to approach the article, Mr Kerrigan said he attended no meetings and there were no discussions, conversations or written communications. He had no knowledge of the case other than what he had heard in court.
He had written the article last Saturday morning and sent it in by modem on a computer. His intention was to convey the thrust of the evidence given during the past week and to link a paragraph of the previous week about Repsol.
It was a chronological account. The first one or two paragraphs have the background to the case - that there had been a letter, that Mr Dunphy wrote an article and that Mr De Rossa sued and now read on".
Mr Justice McCracken said he accepted that insofar as Mr Kerrigan's article did report what was said in court, it was accurate.
Questioned about the first paragraph, Mr Kerrigan said he did not think anyone would take issue with it.
Mr Feeney then quoted part of the second paragraph of Mr Kerrigan's article. It stated: "A letter bearing the signatures of two leading members of the Workers' Party, Proinsias De Rossa and Sean Garland, turned up in a file in Moscow.
Mr Kerrigan said he had written in the article, three or four paragraphs down, chronologically: "Mr De Rossa has sworn, and the defence has accepted, that he did not sign that letter."
He had put it in the chronologically correct place, as disclosed. He found it useful to put it in chronological order.
Mr Kerrigan said it was an effort to put as concisely as possible the events leading to the case. He had not tried to interfere with the defence. He did not know what the defence was.
Mr Feeney said it had been suggested Mr Kerrigan had conspired or gathered together or consulted for the purpose of preparing the article to interfere with the course of the trial.
Mr Kerrigan said he was glad the judge had accepted that he did not do that. He read the transcript (of Tuesday) and was devastated to read allegations that he had been dishonest and had carried out a criminal act by contempt and had conspired to do so and that he was one wing of the defence.
He had not been in court on Tuesday and had not been represented. His character was taken and his professional reputation damaged and he refuted it.
Under cross examination by Mr Adrian Hardiman SC for Mr De Rossa, Ms Kerrigan agreed he was an experienced newsman. Asked if he was fully familiar with sub judice, Mr Kerrigan said he was not fully familiar but was more familiar than the layman. He had professional knowledge.
Mr Hardiman asked Mr Kerrigan what the word "signature" meant. If it was said that this was Gene Kerrigan's signature, did that not mean that the signature was written by him. Mr Kerrigan said it meant it was signed Gene Kerrigan but not necessarily written by him.
Mr Kerrigan said the defence accepted that it was not Mr De Rossa's signature on the letter. He had no view on it whatsoever. Generally, if somebody said something, he took it at face value.
Mr Justice McCracken said the real case was whether there was a real and substantial danger of what the jury would think. It was his view that the jury might take a certain interpretation from it.
Mr Kerrigan said he was aware of the jury being sent in and out during the case. He had tried to be as careful as he could about everything.
Asked by counsel if he had been aware that on Friday last exception had been taken to previous articles, Mr Kerrigan said it had been mentioned to him on Saturday. He believed the article had been sent to the lawyers. He believed it had been vetted by the lawyers.
We were living in a litigious age where a word meant to mean one thing could be inferred as meaning something else and "you could find yourself in court". This was the first time he had ever been in the witness stand.
He was always conscious not to write anything to prejudice a jury. In general, he would be very much aware of that.
Mr Hardiman put it to him that it was perfectly clear that he was rooting for the Sunday In dependent. Mr Kerrigan said it was not perfectly clear and he resented that.
Mr Kerrigan said he had not written the headline or drawn the cartoon with the article.
Mr Justice McCracken asked if he did not see that somebody reading the article could very possibly assume there was factually a letter in the files of the Communist Party in Moscow which had been signed by Mr De Rossa and Mr Garland - in other words that they had written the letter.
Mr Kerrigan said that was not the intention. The intention was to say why Mr Dunphy had written about it.
The judge asked if it was probable that members of the jury might take it as a statement of fact that was not in dispute. Mr Kerrigan said that was not his intention.