THE TRIAL of a former Clare GP who denies charges of deception and false pretences has collapsed after Judge Donagh McDonagh at Ennis Circuit Court deemed articles that appeared in two national publications presented a potential risk to the accused’s chances of getting a fair trial.
The issue arose yesterday, day 17 in the trial of Paschal Carmody of Ballycuggeran, Killaloe, as the judge was due to continue his charge to the jury ahead of their deliberations.
Mr Carmody 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 under the pretence he could cure their cancer.
Applications were made to the court yesterday by senior counsels in the case following reports appearing in two national newspapers which gave an account of matters discussed in the absence of the jury at Wednesday’s sitting of the trial.
After considering the applications made by senior counsels for both the prosecution and defence, Judge McDonagh decided to withdraw the case from the jury.
Addressing the court openly, Judge McDonagh said: “The matter complained of contaminates this case and breaches all the conventional rules whereby matters dealt with in the absence of the jury are never reported. It amounts to a contempt of court.”
He explained that notwithstanding the fact that on each occasion the jury had left the court, he had given them a warning not to talk about, read, watch or look up on the internet anything regarding the trial, a natural curiosity could lead jurors to look at court reports.
"T he Irish Examinerand The Irish Timeshave so far been accurate in their coverage, but today's coverage departs from that coverage," he said.
Judge McDonagh then read the passage he was referring to which he said was used in both publications.
Judge McDonagh said the inference that could be drawn from these articles was such that the defence could be perceived as being critical of the trial judge, and that the jury were not giving enough attention to the charge.
He also suggested that as these matters were being raised by defence counsel, it might then present the senior counsel in a negative light and this reaction might then transfer onto the accused in the case.
Judge McDonagh said: “Paschal Carmody deserves to be presented positively to the jury,” and added that the reporting “amounts to a contempt of court”.
“I am fearful that this could create a prejudice to Mr Marrinan and thus to his client, adversely affecting his client. In a matter such as this, any adversity is a prejudice,” he said.
Judge McDonagh explained that senior counsel for the prosecution Denis Vaughan Buckley had argued that he had “seen significantly worse publicity” where applications for jury dismissal have been refused.
“He asks that I make an inquiry of the jury about the articles, and that should include any comment made to them about this.
“I believe it is wholly inappropriate,” he said.
“I have a concern of asking the jury if they read these articles, as it invites speculation. One would be less than human not to be affected by that, one way or another.
“The accused is entitled to a trial based on evidence. I accept the submissions of Mr Patrick Marrinan SC, for the defence, that he needs to address this issue, but that option is not open at this juncture. It would be inappropriate for the court to address the imbalance potentially created by this publicity.
“I feel I have to withdraw this case from the jury. I do so reluctantly, as all involved have given much time and expense to this case,” Judge McDonagh continued.
He then directed that the editors of both publications mentioned be brought before Ennis Circuit Court to be asked why they should not be cited for contempt of court.
The judge then brought the jury out and explained to them what had happened.
He said that on Wednesday afternoon during the course of his summation of the evidence he had invited counsel to address him if they had any issues arising from his summation in the jury’s absence.
He told the jury that in their absence, matters were discussed, and he advised them that "matters that are dealt with in the absence of the jury are never reported; however, today's Irish Examinerand Irish Timespublished a report" of this.
He said it had been suggested he make inquiries of the jury as to whether they had seen these reports, but he had deemed this “wholly inappropriate”.
“An accused person is entitled to be tried on the evidence before the court. There is a risk that Mr Carmody might not get a fair trial, and I withdraw the trial from you.
“It is day 17 of this trial and I grudgingly do so; the risk is too great to continue,” Judge McDonagh told the jury.
He then excused the jurors from jury service for a period of 15 years and adjourned the case of Paschal Carmody to this morning at 10.30am.
He directed that the Circuit Court registrar make contact with the editors of both publications advising them or their legal representatives to attend court today.