A CIRCUIT court judge has adjourned his decision on an application that two national newspapers should bear the costs of a criminal trial which was withdrawn from the jury.
Parties to the trial seeking an application for costs estimated yesterday that the figure could amount to between €450,000 and €550,000 for the 22-day trial, which sat for 17 days.
Judge Donagh McDonagh told a resumed hearing at Ennis Circuit Court yesterday he would deliver his ruling on the application on June 27th, following his finding last month that The Irish Times and the Irish Examiner were in technical contempt of court.
The issue arose as a result of the withdrawal of the jury from a second trial of former Clare GP Paschal Carmody, at the Circuit Criminal Court, sitting in Ennis, Co Clare, on April 28th.
Reports of the trial published by the two newspapers that day were cited for possible contempt by Patrick Marrinan SC, defending, who said this compromised his client’s chances of a fair 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 he could cure their cancer.
At a hearing on the issue on April 29th, Judge McDonagh acknowledged the presence of Irish Times deputy editor Paul O’Neill and executive editor of the Irish Examiner Donal O’Hagan, who apologised to the court, and accepted that the publications had purged their contempt.
At yesterday’s resumed proceedings, Denis Vaughan Buckley SC, for the prosecution, estimated the Director of Public Prosecution’s (DPP) costs at €121,024 and 90 cent.
Defence counsel Mr Marrinan estimated the costs of his client as in the region of €300,000 to €400,000, with €300,000 being the “minimum”, subject to further assessment.
The Courts Service told the court its costs were “just under €28,000”.
Mr Vaughan Buckley said he was applying to join the newspapers as “notice parties” in light of the contempt proceedings.
Lorcan Staines, for Mr Carmody, said the court was dealing with a sanction for a “criminal offence”, which could result in a number of options such as imprisonment, a suspended sentence, a fine, an order of costs, a compensation order in respect of personal injury, or a practical expression of remorse prior to deciding what sanctions should be imposed.
Mr Staines rejected the newspapers’ argument that the court had no jurisdiction to make an order for costs against a “non-party” to a trial, citing the “wide discretion” given in 2001 Consolidated Circuit Court Rules.
It was also open to the court to join the newspapers as parties in criminal proceedings, to make an order for costs, he said, and there was a precedent in the Court of Criminal Appeal.
Mr Vaughan Buckley told the court he was adopting most of Mr Staines’s argument. While the court could impose a sanction of imprisonment, a corporate entity could not be imprisoned, but “editors could be”.
Judge McDonagh noted that this would “certainly receive some coverage”.
Mr Vaughan Buckley responded that he was “not going to ask that this be done”. He said a court had the jurisdiction to impose a significant fine for loss suffered as a result of a collapsed trial, and could also make a compensation order under section 6 (i) of the 1993 Criminal Justice Act.
Eoin McCullough SC, for the Irish Examiner, repeated the newspaper’s apology and outlined the circumstances where a reporter in the case had to leave at short notice and was replaced by another reporter.
His client intended to embark on a review of its entire system to ensure that this sort of difficulty would not arise, or would arise less often. It was his firm impression that the issue of contempt had already been addressed.
Judge McDonagh responded that he had made it clear that the DPP versus Carmody trial was “still subsisting”.
Mr McCullough contended that the contempt proceedings were between the court and his client and no one else was entitled to be involved.
The fact that Mr Carmody was a complainant did not make him a party to contempt proceedings.
Nor was there precedent for a contemnor (person in contempt) to pay the costs of entirely separate proceedings. Nor had the Oireachtas provided the specific powers of the type suggested, he said.
Referring to the application that the newspapers be joined in the proceedings, and costs then awarded, this was on the basis of a “rule not found in any book” and which had never been imposed before to his knowledge.
Newspapers might have to consider whether or not to report on criminal trials in the future, if there was a risk that a mistake which caused a case to collapse led to larger fines than ever imposed before, Mr McCullough said. This was not a threat, but it could be considered as a breach of its constitutional right, based on a restriction of freedom of speech.
Judge McDonagh said he did not accept that newspapers were not aware of a sanction if they stepped “outside the rules” or court convention.
Cian Ferriter, for The Irish Times, said that the court was being called on to impose by far and away the largest fine of €500,000 for a technical contempt.
Judge McDonagh said he regretted having used the term “technical contempt” as it was a “contempt simpliciter”. Mr Ferriter said that the court’s jurisdiction related to a fine for an offence, and “not from some collateral arising”.
To impose a fine for “hundreds of thousands of euro” would be “wholly inappropriate” and a breach of his client’s rights, he said, and it would be appropriate to have a “nominal fine or no fine” for a bona fide error – “for which we put up our hands”.
He cited as examples errors that might be made by a court registrar or a garda, and questioned whether in such cases the Courts Service or the Garda Commissioner should then be liable for costs.
It would turn “centuries of law on its head” if external parties were to be brought in as parties to criminal proceedings in this way, Mr Ferriter contended. It was not in the judge’s jurisdiction to “plug legislative gaps”.
Judge McDonagh noted that “nobody has mentioned the fact that Mr Carmody has expended very large sums of money on the way to where we are today”.
The accused was innocent and there was an issue of “basic fairness”.
Mr Ferriter said he could quite understand that “unfairness” would result in certain situations, but this was a matter for the Oireachtas.
Judge McDonagh said that he would deliver his judgment in Dublin on June 27th. He said that the criminal case of DPP versus Carmody remained “live” until such time as he had delivered his judgment, and applications in relation to the transfer of the trial or other nature should also be delivered on that date.
