IESC 46 · Supreme Court

THE SUPREME COURT

[Appeal No. 92/2015]

Denham C.J.

O’Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

Charleton J.

O’Malley J.

Between /

MARTIN MCDONAGH

Plaintiff/Appellant

-and-

SUNDAY NEWSPAPERS LIMITED

Defendant/Respondent

JUDGMENT OF Mr. Justice William M. McKechnie delivered on the 28th day of June, 2017

Introduction

1. In its edition of the 5th September, 1999, the defendant company, via the Sunday World, published an article in which it stated

that the individual referred to was, inter alia, the mastermind of the largest drugs haul ever seen in the West of Ireland. The man in

question was the plaintiff; in January, 2000 he issued High Court proceedings seeking damages for defamation. A plea of justification

was entered. At the conclusion of the trial, the jury rejected this defence in respect of two allegations, but upheld it with regard to

two others. They were then asked a second question, which unfortunately was not answered; they instead went on to the third issue

and assessed damages in the sum of €900,000.00. The High Court order of the 30th January, 2009, as subsequently amended,

reflected this verdict. A stay was allowed until the determination of the appeal on condition that the sum of €90,000 be paid to the

plaintiff, which in fact was done, and that 10% of the costs would also be discharged.

2. The defendant raised many issues in its Notice of Appeal. It was successful before the Court of Appeal, whose unanimous judgment

was delivered by Hogan J. on the 19th October, 2015. This judgment, according to the resulting order, allowed the entirety of the

appeal. In particular, the Court found:-

(i) that not only was the jury’s verdict on what has become known as the “drug allegation” unsustainable, but

further that the Court would itself on the evidence make an affirmative finding that the plaintiff in fact was a drug

dealer;

(ii) that the verdict of the jury on the “loan shark” allegation likewise could not stand, but this issue was referred

back to the High Court for a re-trial; and

(iii) that by reason of the jury’s failure to answer Question No. 2 (see para. 4, infra), there should also be a re-trial

on that issue.

Further consequential orders were made dealing, inter alia, with the question of costs and the repayment by the plaintiff of the sum

paid out as a condition of the stay order.

3. From that decision an application was made seeking a further appeal to this Court; in its Determination of the 18th February, 2016,

leave was granted on the following questions:-

“(1) Whether it is open to the Court of Appeal to reverse a jury’s verdict that a statement was defamatory of the

plaintiff arrived at even in the face of strong evidence to the effect that the defending allegation was true;

(2) Whether the media have a constitutional right to publish material, and that this right cannot be compromised by

a jury verdict to the effect that such material was defamatory of the plaintiff;

(3) Whether it was necessary for the jury to be warned by the trial judge that, objectively speaking, the plaintiff’s

credibility had been compromised;

(4) Whether the Court of Appeal is entitled to reverse the verdict of the jury on the grounds that it was perverse, if

some other alternative explanation was open to the jury;

(5) The present legal status in the State of the rule in Browne v. Dunn, in circumstances where little of the

evidence adduced by the newspaper, either in regard to the allegation of drug dealing, or loan sharking, had, in

fact, been directly challenged in cross-examination.”

4. This Court, however, refused leave on a further ground agitated in the application, which was that:-

Question No.2 Issue Paper:

“The learned court erred in law or in fact in finding that the failure of the jury to answer the second question would

have justified the setting aside of the jury verdict.”

5. This is my judgment on such issues.

Background

6. The backdrop to this case was the successful garda seizure of what was said to be the largest ever quantity of ecstasy and

cannabis ever seized in this jurisdiction, estimated as having a value of IR£500,000.00, which were illegally imported into the country

and found in Tubbercurry, County Sligo, on the 30th August, 1999.

7. Arising out of this incident the defendant, via The Sunday World, published a front page article on the 5th September, 1999, under

the headline “Traveller is New Drugs King”, with a subheading of “The Shark is arrested as huge haul of hash and ecstasy is found”.

Accompanying this article was a photograph of a man, with the eyes blanked out, under which was written “Millionaire: the Shark has

amassed a fortune from drug dealing.” It has never been doubted but that the person referred to, although not named, was Mr.

McDonagh

8. The publication in question identified the plaintiff as the mastermind behind this importation and as being a drug baron and one of

Ireland’s top drug dealers. It was said that he had amassed a fortune from the drug trade. He was described as a violent criminal and

was known as “the Shark” because of his unscrupulous behaviour as a moneylender. Details were given in general terms regarding his

flash lifestyle, where and in what type of accommodation he and his family lived, the type of dubious activities which he engaged in

and the fact that his affairs were being investigated by the Criminal Assets Bureau. It was said that he was a member of a large

travelling family. It also described how his younger brother was on the run in Spain.

9. The article then recited that some time shortly prior to this discovery, Mr. McDonagh and others, including his brother and his

brother-in-law, had flown to London and had stayed in a flat to which the drugs had been delivered. It recounted how the plaintiff

arrived back in Dublin by flight, whereas the others carrying the drugs took the ferry. The latter then travelled by taxi from Dublin to

Tubbercurry with the drugs, which, as stated, were seized by the gardaí, who had obtained a tip-off as to the gang’s activity. Finally,

it said that he had been arrested in connection with this haul, and that at the time of publication he was still being questioned.

10. In the statement of claim delivered on the 2nd February, 2000, it was pleaded that the article, in its ordinary and natural meaning

and/or also by way of innuendo, meant and was intended to mean or otherwise should be read and understood as having the

defamatory imputations pleaded at paras. 7 and 8 thereof, respectively. These included that the plaintiff was:-

(i) a drug dealer (Allegation No. 1);

(ii) a loan shark (Allegation No. 2);

(iii) a tax evader (Allegation No. 3); and

(iv) a criminal (Allegation No. 4).

11. After the furnishing of particulars the defendant filed its defence on the 2nd April, 2002. This defence included a plea of qualified

privilege, which is no longer material, but also a plea of justification which in essence became the contested battleground between

the parties. That plea was subsequently particularised as follows:-

(i) the plaintiff was well known to the gardaí in northwest Ireland as being engaged in drug activity, including

supply, with his house being subject to search by the Garda Drug Squad on a number of occasions;

(ii) the plaintiff consorted with persons known to engage in drug dealing and smuggling, including his brother Michael

McDonagh, Calvin “Mouse” Carthy and Jimmy McMorrow, spending substantial periods in their company;

(iii) the plaintiff accumulated property in Sligo and enjoyed a lifestyle not commensurate with his social welfare

income;

(iv) the plaintiff has knowingly engaged in social welfare fraud, which he orchestrated for his own benefit and the

benefit of other persons; and, finally,

(v) the plaintiff had made a settlement with the Criminal Assets Bureau in the sum of €100,000 in respect of his

proceeds of crime.

12. Evidence was given at trial by the plaintiff, who also called three other witnesses on his behalf. In all, nine witnesses were called

by the defendant. At the conclusion of the evidence, and having heard submissions from the parties, the following questions – which

reflected the defamatory allegations as pleaded and the justification defence as asserted – were left on the issue paper for the jury’s

consideration. Those questions and the jury’s verdict on each were as follows:-

• Question No. 1

Has the defendant proved:

(a) That the plaintiff was a drug dealer

Answer: No

(b) That the plaintiff was a loan shark

Answer: No

(c) That the plaintiff was a tax evader

Answer: Yes

(d) That the plaintiff was a criminal

Answer: Yes.

• Question No. 2

If the answer to one or more of the parts of Question No. 1 is “No”, but the answer to one or more parts of

Question No. 1 is “Yes”, do the words not proved to be true materially injure the plaintiff’s reputation having regard

to the truth of the remaining charges?

[No answer given]

• Question No. 3

If the answer to Question No. 2 is “Yes”, assess damages.

Answer: €900,000.00 plus costs.

As can be seen, the second question posed anticipated the situation which in fact arose, namely, that the jury might answer some

parts of Question No.1 in the affirmative and others in the negative. Unfortunately, the jury’s failure to answer this question was not

appreciated until the case had concluded.

13. On a subsequent application for a stay, de Valera J. agreed but on condition that the sum of €90,000.00 would be paid to the

plaintiff and that 10% of the costs when taxed and ascertained would also be discharged. These conditions were satisfied and hence

the stay was granted.

Issues before this Court

14. What this Court must deal with are the certified questions (“C.Q.s”), but when so doing it must remain conscious of its refusal to

grant leave on the further question referred to at para. 4 above. I propose to consider the issues which arise not in the precise

sequence as outlined, but rather by first considering C.Q. No. 5, to be followed by C.Q.s No. 1 and No. 4, all of which feed into each

other; I will then look at what might be described as the “constitutional issue” (C.Q. No. 2); and, finally, I will deal with the remaining

ground, which is the “credibility warning” issue (C.Q. No. 3).

Issue No. 1 – C.Q.s No. 1, 4 & 5

Browne v. Dunn (Perversity of Verdict)

15. To understand how this issue arises, it is necessary to outline in a little more detail some of the more relevant and salient features

which occurred as part of the investigation, and which evidentially were followed through on at trial.

16. Mr. McDonagh was arrested on the 2nd September, 1999, as part of the garda investigation into this drug haul. He was detained

for a total of seven days. During this period he was repeatedly interviewed during the course of each day by either the same or a

different team of gardaí. Notes were taken by the gardaí during these interviews, but on all occasions the plaintiff refused to sign or

otherwise acknowledge them when asked. He was released without charge on the 9th September, 1999. He has never been charged

with this or any drug-related offence.

17. The defendant newspaper, in circumstances which remain unexplained, obtained copies of the garda notes: at trial, it called

several gardaí who were involved in the interrogation of Mr. McDonagh during his detention. Five such members (“the garda

witnesses”) read into the record the content of the notes made respectively by each of them, and in some instances other gardaí

present at the time confirmed the accuracy of such notes. These formed the fundamental basis for the justification plea and directly

give rise to the first issue.

18. Whilst the newspaper called a further four witnesses, it cannot be doubted but that their influence was not as central as those

above referred to; certainly not on the issues which remain live on this appeal. Two of them were also members of the force and gave

evidence of what they said was Mr. McDonagh’s reputation in the Sligo area as being a drug dealer and loan shark. The third was a

member of the Criminal Assets Bureau, whose evidence regarding lodgements to accounts controlled by the plaintiff was misconstrued

by the Court of Appeal. The final witness was from a financial institution; his evidence was unremarkable. In short, therefore, whilst

the reputational evidence was there, it seems clear that the justification plea would have been a non-runner without the evidence

first mentioned.

19. Even allowing for what contrary evidence there was and what evidence was put in issue, Hogan J. nonetheless found himself

“coerced to the conclusion that [the evidence] shows overwhelmingly that the plaintiff was indeed a drug dealer and the jury’s

conclusion to the contrary was perverse and cannot be allowed to stand” (para. 92 of the judgment). The questions which thus arise

on this aspect of the appeal are, first, whether the perversity conclusion is legally sustainable on a proper review of the evidence

and, second and even more critically, even if so, whether an appellate court should of itself substitute a justification finding such as

was done in this case.

First Impressions

20. Inherent when asserting a plea of justification is an expectation that the evidence upon which it is based, if sustained, could

constitute an entire defence to the defamatory allegations as made. In this case that plea was, from the defendant’s point of view,

essentially, if not solely, based on the evidence of the garda witnesses who were called on its behalf.

21. What the interrogating members had to offer was the content of the individual notes that they took during the course of the

several interviews which they had conducted with Mr. McDonagh during his detention. Leaving aside for a moment whether, even if

accepted as accurate and truthful, those notes could have justified a defence verdict in respect of allegations 1 and 2, it would

normally be expected that such an issue would be a jury matter. In other words, having observed the witnesses, listened to the

evidence and heard what was offered by the parties, the jury would be the exclusive entity to determine what weight should be given

to such notes and what effect such weight might have on their verdict. In short, the jury decides the result and resolves the issue.

22. It is to state the obvious to say that such a plea is evidentially based and, subject to the following two observations, is, as I

have said, quintessentially a matter for the jury. The first caveat relates to situations where some sustained evidential objection has

been made by the plaintiff, and the second is where the plaintiff in effect admits or concedes that justification has been established.

Given that the pleadings, including the particulars, will previously have identified the basis of the plea, it is highly unlikely that a

plaintiff would leave himself in a position whereby judgment by consent could be entered for the defendant on this issue. Therefore, in

the normal course of a defamation action which has not been non-suited, such an issue is determined by the jury.

23. In this case the effect of the Court of Appeal’s judgment on the drug issue is to withdraw that function from the jury and instead,

though sitting at appellate level, to act, in reality, as a trial court in this regard. In so doing, it did not confine its assessment of the

verdict within the parameters of what up to then had universally been the practice, but rather went much further and took it upon

itself to determine the defence of truth. Given the special and sacrosanct function of a jury in libel matters, it becomes necessary to

seek out what justification there is for such an approach and whether or not that can be sustained in accordance with accepted legal

principles. On this issue, the Court of Appeal’s starting point was in its application of Browne v. Dunn (1893) 6 R. 67.

Browne v. Dunn

Status in Irish Law

24. At the outset of the discussion which follows, I should confess that I do not quite understand why Browne v. Dunn featured so

heavily in the judgment of Hogan J., or what part, if any, it played in the Court’s ratio on the drugs issue. It seems to me that if my

understanding of the analysis which gave rise to its conclusion on that allegation be correct, the same could easily have been

conducted without any reference whatsoever to, or reliance on, that decision (see paras. 85-88, infra). Be that as it may, as the rule

is frequently applied but until recently has never been the subject of any real scrutiny or analysis in the superior courts, it may be

useful to venture a little more about its genesis, what it really seeks to achieve, those situations in which it may properly be applied

and the effect of any breach of its terms.

25. Even without authority, I can see no reason in principle why the judgments in Browne v. Dunn should not be available for

consideration in this jurisdiction if and when appropriate circumstances so suggest. As I do not read Flanagan v. Fahy [1918] 2 I.R.

361 (“Flanagan v. Fahy”) as necessarily having decided otherwise, it would be unusual, both as a matter of precedent and practice,

to deny its general applicability, at least without some serious judicial debate on the point. In fact, that debate has recently taken

place via the decision of Baker J. in DPP v. Burke [2014] 2 I.R. 651, and the judgment of O’Malley J. in A.C. v. Judge Eamon O’Brien &

Anor [2015] I.E.H.C. 25, both of which have endorsed its domestic application. In addition, in McNamee v. Revenue Commissioners

[2016] I.E.S.C. 33, Laffoy J. discussed and applied the case without pause or hesitation, and did so almost as a matter of routine.

Accordingly, as I cannot identify any reason to think otherwise, I too am satisfied that Browne v. Dunn should be considered as part

of Irish law.

26. The only authority which I can find and which it is said casts some doubt on this view is the judgment of Ronan L.J. in Flanagan v.

Fahy. Having considered that decision I can immediately say that even without the case law last mentioned, I do not interpret what

the learned Lord Justice said as having that effect. Certainly, neither of his fellow colleagues supported such a proposition. In any

event, the circumstances giving rise to the relevant issue in that case were entirely remote from the backdrop to Browne: such will

become self-evident when I return to Flanagan, but first I will outline what the House of Lords decided in Browne v. Dunn in 1893.

The Rule in Browne v. Dunn

27. Mr. Dunn, a solicitor, was sued for libel on the basis that a Letter of Instructions drawn up in his office and signed by his clients,

in which he was authorised to seek an order to have the plaintiff bound to the peace, was simply a sham which he then used as a

means of cover to disparage the plaintiff’s character.

28. At trial, one of the clients gave evidence for the plaintiff, one had died and one other was not called. The other six confirmed the

authenticity of the document, and that it accurately reflected their instructions. Not one of them was cross-examined on this

particular point, nor was their credibility otherwise impugned. Despite this, the jury was asked on behalf of the plaintiff to disbelieve

them. The resulting point of law, concerning how a court should deal with such a situation, went to the House of Lords.

29. Lord Herschell, L.C. said at pp. 70-71 of the report:-

“… My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the

box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not

only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with

witnesses.”

30. Lord Halsbury, who concurred with the Lord Chancellor, said very much the same in his own judgment, emphasising the unfairness

of challenging untested evidence, as it happened, in that case, through submissions to the jury. The learned judge also touched on

what should happen to such evidence, saying that it would be a “perfect outrage and violation of the proper conduct” of a trial if the

untested evidence was not accepted, a comment I will come back to in a moment.

31. Lord Morris, in his judgment, rejected any suggestion that one must formally and directly challenge the evidence in dispute before

impeachment can occur, and in the same vein went on to caution against the establishment of any hard and fast rule which would

make it mandatory to cross-examine a witness before one could question his integrity. More specifically he was quite satisfied that as

the evidence from the impugned witnesses was “quite reconcilable with the rest of the case”, it would be impossible to suggest that

such evidence was not credible.

32. The basis of the decision in Browne v. Dunn undoubtedly rested on the question of fairness, that is, fairness to a witness as part

of the overall conduct of a trial. No discussion as such was had on the matter of weight, unless the last mentioned comment by Lord

Morris or the “perfect outrage” comment by Lord Halsbury should be read in that light. Whilst the former can be seen as an expression

to this end, it is difficult to know whether the latter observation was addressing simply the admissibility of such evidence, or was

intended to offer a view on how it should be treated once admitted. As it is impossible to see how such evidence could have been

excluded on a “per se” basis, the observation may well be related to value, but even if so, I could not regard the remark, in the

absence of some discussion on the point, as being in any way influential.

What Flanagan decided

33. The rule in Browne v. Dunne has been discussed in a variety of circumstances, many of which do not truly fit within the

parameters of what was said by the House of Lords in that case. A prime example of this is Flanagan v. Fahy itself. As the following

brief summary will show, the facts do not at all give rise to the rule. Therefore, the judgment of Ronan L.J., despite the citation in

various textbooks to the contrary, could not as a matter of law, and does not as a matter of fact, disapply the rule in this

jurisdiction.

34. Ryan, the principal defence witness in a suit to establish a Will, gave evidence that the plaintiff and his brother asked him to sign

the Will after the testator’s death, and offered the ownership of a sheep as a bribe to secure his silence. On the back of Ryan’s

dubious character and highly questionable reputation, what is of interest is his cross-examination and, more particularly, what that

opened up in terms of re-examination.

35. The cross-examination on this point was intended to establish hostility between Ryan and the plaintiff’s family, and so provide a

basis for suggesting that his story had been fabricated by motives of malice. The principal form of challenge in pursuit of this strategy

clearly emerges from the questions put to this witness by Comyn K.C. (together with Healy K.C.) on behalf of the plaintiffs. Although

it is an indulgence at this remove to quote the relevant exchange, curiosity forces me to succumb to its citation:-

“Q: Tell me, were you, on the 1st March, 1906, summoned to the Petty Sessions in Corofin for unlawfully presenting

a revolver at the testator, and threatening to blow his brains out – was that complaint made against you?

A: It was made against me; but it was false.

Q: Did you settle the case?

A: He settled it himself.

Q: Were you summoned also on the 22nd of March, 1909, for assault on Thomas Flanagan – were you?

A: I might have been, he having blackguarded me greatly.

Q: Were you convicted?

A: I would not say I was convicted.

Q: Were you convicted on the evidence, and ordered to pay 5s., and for costs the sum of 1s.?

A: I was, when he blackguarded a sister of mine, when I met him on the public road.

Q: Were you again convicted for having, on the 22nd March, 1909, assaulted Tim Flanagan?

A: It is likely I did. I asked him would he not marry my sister.”

As can be seen, this cross-examination established serious friction and antipathy between the plaintiff’s family and Ryan, with

considerable success.

36. The predicament then facing counsel for the defendants was outlined by Sir Ignatius J. O’Brien L.C. at p. 380 of the report:-

“What were counsel to do? They knew that in such circumstances there was a rule of law which enabled them to

prove that the statement which was made in the witness-box was made at a period anterior to the time at which it

was alleged the story was invented. Such proof is not corroboration. It rests upon a different principle altogether.”

Accordingly, Lynch K.C., defence counsel, asked:-

“Did you tell your employer, Mr. Mellett, the day after you returned – did you tell him what happened?’

Healy K.C. objected. Mr. Lynch replied that:

“It will turn on his cross-examination”.

The objection was noted and overruled by the trial judge. Subsequently Lynch K.C. put this question:-

“Did you on Thursday, when talking to Mr. Mellett, tell him what took place at Glanquin the night before?”

“I did, sir”, came the reply.

37. The entire legal point centred on whether the last question asked in re-examination, and the subsequent evidence of Mr. Mellett,

who incidentally was the local magistrate for the area and who confirmed Ryan’s story, were lawfully admissible or not.

38. It seems to me quite clear that the circumstances giving rise to the Court of Appeal’s decision in Flanagan were wholly different

from the circumstances giving rise to the judgments in Browne v. Dunn. So too was the issue of law. Whilst the precise legal basis for

admitting that decisive re-examination question, and thereafter the evidence of Mr. Mellett, varied as between judges, nonetheless it

seems that as the law then stood, such a statement by Ryan was admissible, though not to prove the truth of the facts asserted or

to corroborate in any way his own evidence, but rather to show consistency on his part.

39. Apparently such a course was permitted at the time in a number of exceptional circumstances, one of which was where the

witness was charged with having recently fabricated his story by reason of some motive such as interest or friendship, on the one

hand, or spite or ill will, on the other. In such a situation it was possible to show that he had made a similar statement at some point

in time prior to the giving of the evidence, preferably, if possible, even before such motive existed (Phipson on Evidence, 4th Ed., pp.

471-472). Accordingly, I cannot see how any reference to Browne v. Dunn was either necessary or in context.

40. Be that as it may, Ronan L.J., having correctly observed that if the particular line of cross-examination adopted by Comyn K.C.

has not been pursued, the question asked of Ryan in re-examination would have been inadmissible, then made the unconnected point

that in England the conclusion reached by the court would not have been, as he put it, the “only result”. The learned judge then

observed that in the UK, a party is taken to have accepted the evidence of a witness whom he was in a position to cross-examine,

but did not do so. That was how he described the principle which he assigned to Browne v. Dunn. At p. 389 Ronan L.J. then

concluded:-

“This difference of practice must be considered in applying the English cases. I say nothing as to how far Browne v.

Dunn governs the Irish Courts.”

As there was no further discussion on the point, it is self-evidently the case that Ronan L.J. said no more than to reserve his position

on the application of the rule in this jurisdiction.

Follow on Cases

41. The facts behind and the issues raised in DPP v. Burke [2014] 2 I.R. 651 were likewise quite dissimilar to those of Browne v. Dunn.

Nonetheless, they gave rise to a careful analysis of an associated point not previously discussed, at least not in any depth, which

concerned how untested evidence should be treated by the court.

42. The prosecution in that case called, inter alia, several witnesses who gave evidence in support of various charges preferred

against the Burke brothers arising out of a confrontation which was said to have occurred between them and a number of other

unrelated people. A further witness was called for a specific purpose, namely, to prove that she had made a 999 call. During her

evidence the DPP tendered to the court a statement which she had previously made to the gardaí in which she exculpated both

accused persons, one of whom was her husband. As was inevitable, this highly probative evidence from a defence viewpoint was

further exploited in cross-examination. At no time was her truthfulness challenged by the DPP, either by directly attacking her

personal integrity, or by putting to her the contradictory evidence previously given by other prosecution witnesses. In no part of her

direct examination was she questioned about this particular matter.

43. The issue of interest to us arises out of a submission made on behalf of the defence that given the absence of such a challenge,

that fact in and of itself meant that her excusatory evidence had to be accepted by the court, thus creating a reasonable doubt

which inescapably would give rise to an acquittal. In a consultative case stated, the District Court asked for the opinion of the High

Court on a number of questions, none of which in truth are really germane to the pertinent issue.

44. However, before turning to that matter a number of preliminary points, which are worthy of mention, should be made at the

outset. First, as Mrs. Burke had never made a statement or given evidence – either prior to or during the currency of the trial – which

was contrary to that outlined herein, I cannot understand how she could possibly have been treated as a hostile witness. Such a

status can only apply to a person who gives evidence which is inconsistent with a statement previously furnished, and then only

where the procedure set out in The People (Attorney General) v. Taylor [1974] I.R. 97 is followed; the same was not even attempted

in the case of this witness (see also Power v. Doyle [2008] 2 I.R. 69). In any event, her evidence was entirely compatible with the

statement which she had previously made. Therefore unless one could say that she was “hostile” simply because such evidence did

not support the prosecution’s case, a proposition which in my view is utterly unsustainable, that evidential term of art could not

conceivably have applied to her.

45. Secondly, the High Court was determining a case stated from the District Court pursuant to section 52 of the Courts

(Supplemental Provisions) Act 1961, which process has inherent limitations on the judgment which it can deliver. Thirdly, Burke was

not only a criminal case, but the offences charged were, or were treated as, summary in nature: therefore there was no jury

involved. Accordingly, it can only be at the level of principle that the decision feeds into the instant case.

46. It is evident from her judgment that Baker J. was entirely satisfied that Browne v. Dunn was part of Irish law, although, and I

think rightly so, she had some doubts about where precisely on the legal spectrum it should sit. Disregarding her views on that

matter, what is of relevance is her conclusion on how unchallenged evidence should be treated. In rejecting the defence argument

that untested evidence must unconditionally be accepted, she stated that “the proper approach to unchallenged evidence is to

consider the appropriate weight which should be given to such evidence” (para. 44). In this context she was satisfied that such

evidence carried greater weight than tested, contradicted evidence.

47. The learned judge was of the view that Browne v. Dunn did not support the argument advanced by the accused, but rather was

authority only for the proposition that the credibility of a witness may not be impeached, either in cross-examination or in

submissions, if his or her evidence has not been tested in cross-examination. Finally, she was also of the view that there was no

requirement, either in practice or in law, as such, that counsel must cross-examine a witness.

48. The other case from this jurisdiction which featured in debate was A.C. v. Judge O’Brien and the Director of Public Prosecutions

[2015] I.E.H.C. 25. In that case the accused was charged with two counts, one of burglary contrary to section 12 of the Criminal

Justice (Theft and Fraud Offences) Act 2001, and the second with assaulting a police officer contrary to section 19(1) of the Criminal

Justice (Public Order) Act 1994. During the course of his detention, Mr. A.C. answered every question put to him, consistently

denying that he was anywhere near the location of the burglary. The only prosecution evidence was visual recognition evidence given

by the garda who attended at the scene. The extent to which this witness was cross-examined on the evidence so given is unclear.

49. At the close of the DPP’s case, the trial judge refused an application for a direction. The defendant was then asked one question

in direct evidence, namely, whether he had “any hand, act or part” in the offences described. He denied that he had. He was then

invited to answer any questions in cross-examination; none were put. At that point a further application for a dismissal was made by

the defendant, this on the basis that the failure of the prosecution to put any question to him left his evidence uncontroverted and

hence it had to be accepted. The learned District Judge rejected the arguments put forward by the defendant, citing Flanagan v.

Fahy and Phipson on Evidence to support his conclusion that the rule in Browne v. Dunn did not apply in Ireland. He duly convicted

and sentenced the defendant.

50. On a subsequent application for a case stated moved under s. 2 of the Summary Jurisdiction (Ireland) Act 1851, the respondent

judge said no, holding that the application was technically frivolous on the basis that the law in question was “well-settled” in this

jurisdiction. This was at a time prior to Burke. In the judicial review proceedings which followed to have that order set aside, O’Malley

J. in her judgment was anything but satisfied that the trial judge was correct in his view. But that apart, she was quite prepared to

follow Burke and therefore saw no reason why the rule should not apply in this country.

51. The way in which the learned judge viewed the evidence, being predicated on there being “no doubt but that each side knew the

case it would be meeting”, was that each party took a risk in the manner in which they approached their respective cross-

examinations. This could have been for tactical reasons. Whichever, it was for the trial judge to assess and evaluate the evidence

such as it was. In effect, this exercise simply became a matter of weight.

Invoking the Rule:

52. Whether what is stated in Browne v. Dunn is correctly classified as a principle or rule, or either, is debatable, as is whether it is a

rule of law, or evidence, or simply one of good practice; for convenience only, I have referred to it simply as “the rule” throughout

this judgment. Likewise, there is a further question as to whether it also applies to criminal law and, if so, how its application may

differ depending on whether the trier of fact is a judge only or a judge and jury. None of these matters are central to the point giving

rise to its consideration in the instant case. What this Court must consider is what the essence of the rule is; whether that, in an

acceptable form, was correctly applied by the Court of Appeal; and, finally, as part of its application, whether that was or could have

been used as a basis for that Court’s conclusion on the drug allegation issue (paras. 85-88, infra).

53. It seems to me that there is a danger, if Browne v. Dunn is given the prominence which some suggest, of letting the rule

dominate the result rather than allowing the facts determine the outcome. In some quarters, at least, it has been elevated to a

status which it scarcely merits. Moreover, the exclusive focus on cross-examination is mistaken and apt to mislead. Let me explain

why.

54. Without discussing the basis of the rule for a moment, it appears from the case law that it may possibly arise in at least two

different situations: one, where contradictory evidence is available but is not put to the witness; and the other where the witness

has not been cross-examined. Within these broad areas one may find many other variations, such as whether the issue arises entirely

on one side of the case, or straddles both sides. The sequence in which the material witnesses give evidence may also be a relevant

factor. In any such situation a question then arises as to how a court should treat the evidence of that witness when it is later

challenged, either through the evidence of a subsequent witness or in submissions or before a jury. Indeed, if the challenge comes

about through contradictory testimony, a similar question may also arise in respect of that evidence.

55. The key requirement to emerge from the speeches of Lord Herschell and Lord Halsbury in Browne v. Dunn is that if it is intended

to challenge the accuracy or truthfulness of a witness’s evidence at any time during the adversarial process, by whatever means, it is

essential that such challenge be raised and raised in a manner that all concerned cannot but know of its existence. The most clear

cut way of so doing is by cross-examination, during which the evidence in question is tested and the substance of any contrary

evidence or submission is put to the witness. However, such is not the only gateway by which a witness may be impeached, a good

example of which is the instant case.

56. Lord Herschell himself acknowledged this when he stated that:-

“I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakeably

given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to

waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a

witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having

been no suggestion whatever in the course of the case that his story is not accepted.” (p. 71)

57. The Lord Chancellor further expressed the same point when stating that where it was perfectly clear to the witness when giving

evidence that his credibility was in issue, the requirement did not apply (p. 71 of the report). Lord Morris was even more emphatic,

pointing out that an effective cross-examination method might be to simply ask a witness to step down if his evidence was self-

evidently outrageous (see para. 62 of this judgment)

58. Further examples to the same effect can be found in R. v. Hart (1932) 23 Cr. App. R. 202, where it was said that:-

“… if … the prosecution intend to ask the jury to disbelieve the evidence of a witness, it is right … [that he] should

be challenged in the witness-box or at any rate, that it should be made plain, while the witness is in the box, that

his evidence is not accepted.” (emphasis added) (Lord Hewitt C.J. at 207)

And in R. v. Fenlon (1980) 71 Cr. App. R. 307, the English Court of Appeal said that:-

“It is the duty of counsel who intends to suggest that a witness is not telling the truth to make it clear to the

witness in cross-examination that he challenges his veracity and to give the witness an opportunity of replying. It

need not be done in minute detail, but it is the duty of counsel to make it plain to the witness, albeit he may be a

co-defendant, that his evidence is not accepted and in what respects it is not accepted.” (Emphasis added)

There are many other observations of a similar nature.

59. In my view, therefore, what the rule is truly focused on and what it seeks to achieve is to ensure that evidence intended to be

impugned is put in issue in a manner or way, whatever that might be, which conveys to all parties and the relevant witnesses that

such evidence is being challenged. Is it in dispute or in contention? Is it being contradicted? Simply put, is it in controversy? If so,

and if in a manner obvious or known to all, then such is sufficient to “put it in issue”. This therefore is the yardstick. How it is done is

not the test: the basis for the rule does not demand more.

60. In our adversarial system of law, the parties are principally in charge of the issues, what witnesses they call, the evidence which

those witnesses give, the authorities cited and the submissions made; they also set the scope of any appeal by reference to the

Notice of Appeal or Cross Appeal. As part of this process, every lawyer worthy of his retainer will have a tactical view or game plan as

to how best to advance his client’s case, which in both honour and duty he is bound to do. This strategy may kick in well in advance

of the actual hearing itself. Depending on the type of case, the issues involved and many other factors, such strategy may be more

crucial at one stage of the process than another. But whichever, unless the case is entirely documentary based, or the oral evidence

is not contested or is purely routine or peripheral, an advisor will be alive as to how best to further his client’s position: to ask

questions or not to ask questions, what line to pursue, how far to push a witness etc. All are matters calling for careful consideration.

61. This is a key aspect of a lawyer’s function, which a judge should respect. In so doing, he or she should not unduly interfere with

its planning or constrain its implementation. Judicial intervention is evident in several of the decided cases, with some judges being

quite uneasy about, indeed almost suspicious of, this type of approach. Many, as experience shows, frequently warn that one must

take the consequences of pursing this or that particular line of engagement. If such is purely to suggest that what legally follows will

of course follow, then the same is entirely unobjectionable, but lurking somewhere in that type of remark is often an expression of

disapproval, if not of downright hostility. This is to be regretted as a great number of cases have been won or materially advanced by

the strategy adopted. Therefore, the judge should be ever so vigilant so as to ensure that the case is decided, whether by him or her

or by a jury, on the evidence produced, disregarding legitimate tactics or strategic moves when taken.

62. To that end, I am satisfied that there is no rule of law which compels a party to cross-examine a witness before impeaching the

credibility of such witness. I think the judgment of Lord Morris in Browne v. Dunn is correct when he cautions against the

establishment of any hard and fast rule which makes it obligatory to directly and overtly challenge such evidence before calling its

integrity into question. Lord Morris, having made the point, then continued by saying:-

“But I can quite understand a case in which a story told by a witness may have been of so incredible and romancing

a character that the most effective cross-examination would be to ask him to leave the box. I therefore wish it to

be understood that I would not concur in ruling that it was necessary, in order to impeach a witness’s credit that

you should take him through the story which he had told, giving him notice by the questions that you impeached his

credit.” (p. 79 of Report)

I respectfully agree.

63. Finally on this point, it is to state the obvious that evidential challenges may be more distinctly and robustly announced in some

cases than in others, but the intensity of such interrogation, or the lack of it, as the case may be, whilst potentially carrying risk and

probable consequences for the value of the evidence, is not the route by which such evidence may be confronted.

The Basis of the Rule

64. The foundation of the rule is most commonly discussed, first, in the context of fair procedures being afforded to a witness and,

secondly, and much more recently, in how to treat evidence which is described as ‘untested’ or ‘unchallenged’. One can add to these

its utility from a practical point of view in promoting efficiency and effectiveness in the conduct of a trial. Whilst some other grounds

have been suggested, these are the main reasons for its existence.

65. All courts are extremely familiar with fair procedures at a general level and are experienced in applying these at a particular level.

At each step of our jurisdictional hierarchy every judge is constitutionally obliged to apply the rules of law, which include those of

evidence and of fair procedures. Such a duty continues until he or she no longer has seisin of the case. But I am not sure if it is in

any way necessary to call on fair procedures to deal with this type of issue, certainly as that phrase is understood in administrative

or constitutional law. Fair procedures are essentially designed to ensure that somebody who is asserting a right or defending a

position is treated fairly. It is unclear why these well established principles in their own right, and as a separate source of protection,

would be called upon in the case of individuals who have no direct interest in the outcome of the proceedings, save for the giving of

their evidence. Respect for their individual position when assisting in the administration of justice will be the responsibility of the trial

judge, who is in charge of the conduct of a trial and who will ensure that the rules of engagement, at each and every stage, are fairly

applied. A witness who is also a party may not be in exactly the same position, but for present purposes, I see no material difference

between the two. In any event, as the Court of Appeal has said, no issue of fairness arises in this case (para. 76, infra).

66. I do not think that the decision M v. M [1979] I.L.R.M. 160 has much of a parallel to the point presently under discussion. That

case concerned a nullity suit moved on the basis of non-consummation. Both husband and wife gave evidence that after six and a

half years of marriage, the same had never been consummated, this being due to the husband’s physical and/or psychological

incapacity. This was confirmed by a consultant physician and a consultant psychiatrist, as well as a general practitioner, who having

examined the wife some four years into marriage also confirmed that she was still a virgin. The trial judge declined to grant the

petition, thereby imputing some collusion or perjury against the parties. Henchy J. for the Supreme Court felt that it was a breach of

natural justice for the judge not to have accepted the unquestioned and corroborated evidence of the witnesses, particularly where

they had no opportunity of responding to the aspersion inherent in the decision. There was no mention of Browne v. Dunn in that

case.

67. Whilst I fully endorse the conclusion reached, the route by which that was arrived at is not without its difficulty. There was in

effect no legitimus contradictor, nor could there have been in the circumstances. The husband, as the respondent, could not

conceivably challenge what his wife had said as his own evidence was entirely consistent with it in every respect. Likewise, how

could the wife challenge the husband’s evidence? So I am not at all certain that resting the conclusion on the basis of unfairness was

the correct manner in which to decide the case. One might be forgiven for thinking that some sort of obligation was being placed on

the trial judge to himself challenge the evidence, or to at least forewarn the witnesses of what he might be thinking. It would, I feel,

have been much more satisfactory to deal with it on the basis of how the evidence stood or what its status was at the conclusion of

the case. In any event, one way or the other, it is not central.

68. The essential point, therefore, is how is the evidence in issue to be treated? Unless it is excluded on one of the established

exclusionary grounds or on the basis of how it was obtained, such as in oppressive circumstances, this becomes purely a question of

weight. This in my view is the correct approach to all pieces of evidence, including unchallenged evidence, which much however be

assessed as part of the entire evidential scaffolding. Whilst Baker J. in DPP v. Burke thought that such evidence carries greater weight

than tested, contradicted evidence, I am not entirely convinced that this is necessarily always so. On occasion one has come across

a situation where despite a rigorous cross-examination the evidence may stand as even more impressive or more imposing than if

unchallenged. Whichever, it cannot be the situation that such evidence must be unconditionally accepted. Accordingly, as applying to

trial level I am entirely satisfied to agree with what the learned judge said at para. 44 of DPP v. Burke.

The Application of the Rule by the Court of Appeal

69. It is not altogether clear how the rule in Browne v. Dunn fed into the Court of Appeal’s decision or, given the evidential setting as

it stood at the end of the case, what role it played in how the perversity verdict was reached. Insofar as I can decipher, however, it

seems to me that whilst the rule in substance was correctly described, it may not have been correctly utilised in the manner in which

the Court arrived at the conclusion which it did. The reason for expressing the point as I have will become evident a little bit later in

this judgment (paras. 85-88, infra). Furthermore, the special role of a jury, particularly in defamation actions, was not as much

respected as it should have been. Accordingly, for these and the further reasons which I am about to outline, I believe that the

Court’s judgment on the drug allegation issue cannot be allowed to stand, and must be set aside.

70. The Court of Appeal considered Browne v. Dunn in the context of a submission that as the garda witnesses were “not really”

cross-examined on the accuracy of their notes, which ex facie contained admissions by the plaintiff, the veracity of such evidence

must be taken as having been duly established. If that proposition be correct, as the court largely – though not entirely – held it to

be, such admissions were, it said, consistent only with Mr. McDonagh’s guilty knowledge of the illegal drug importation. This view

played a central role in the Court’s conclusion that the jury’s verdict to the contrary was perverse.

71. Although describing the analysis of the rule carried out by Baker J. in DPP v. Burke as extremely valuable, it did not cover the

precise point as seen by the Court, which was “… what is the position where the only evidence given is along particular lines and that

evidence has not itself been challenged?” (para. 46). Or, as put slightly differently, “… whether the preponderance of the

unchallenged evidence was such that the jury could not reasonably have found otherwise than for the newspaper” (para. 55).

72. In several sections of the judgment the court made a number of telling observations, all similar in tone and comparable in effect,

such as:-

“What is, perhaps, the most striking feature of the evidence adduced in relation to the drug dealing allegation is

that very little of the evidence adduced by the newspaper in support of the drug dealing allegation was actually

challenged by the plaintiff…” (para. 74)

Again:-

“So far as the Garda evidence was concerned it was not challenged beyond largely formal and, to some extent,

perfunctory denials from the plaintiff that he ever made the statements following his arrest and detention.” (para.

76)

And, in further reference to the garda notes which also suggested that the plaintiff knew the name of the intended drug distributor in

Sligo, the Court said:-

“As I have noted, whilst Mr. McDonagh denied making these statements, the Garda evidence otherwise went

unchallenged.”(para. 80)

73. Heavily influenced by this non-engagement with the evidence, Hogan J. summarised his view as follows:-

“Reviewing the evidence as a whole, it is clear that there is (effectively) unchallenged evidence to the effect that

Mr. McDonagh was aware that a drugs consignment was being planned; that the drugs had been purchased in Spain

by Mr. McMorrow; that the operation had been financed by Mr. McDonagh’s brother, Michael, and that the drugs

were then taken to the UK by him via Amsterdam. There is further evidence – again, largely unchallenged – to the

effect that Mr. McDonagh knew that Mr. O’Grady was pressurised into carrying the drugs and that Mr. O’Grady later

telephoned Mr. McDonagh – rather than any member of his family – following his arrest.” (para. 77) (emphasis

added)

74. Therefore, on the basis of (i) that ‘unchallenged evidence’, (ii) his trip to the United Kingdom and (iii) the lodgements said to have

been made to accounts held or controlled by the plaintiff, the learned judge was satisfied that the truth of the drug allegation had

been established and, accordingly, not only was the jury’s verdict on that issue set aside, but the Court itself made a justification

finding to that effect. The resulting order in this regard was to dismiss that entire aspect of the plaintiff’s claim.

75. Of the three matters last mentioned, two can be disposed of fairly quickly. First, an explanation was given by Mr. McDonagh for

his trip to the United Kingdom and for those he had travelled with; this included the fact that he was very drunk when the journey

was decided upon. He also accounted for those he had met there and the circumstances of their encounter. What he said on these

matters may or may not have been plausible or believable, but surely any decision in that respect must be one for the jury. Indeed,

the Court of Appeal itself acknowledged that an innocent interpretation of these events was perfectly possible, even if somewhat

unlikely. Secondly, the evidence did not disclose that Mr. McDonagh had access to an account(s) which at any one time had a

standing credit balance of €665,000.00, or even the lesser sum of IR£410,000.00. The documents, although admittedly somewhat

confusing both as to currency and amount, nevertheless show that whichever sum it might be, the amount in question was the

accumulated throughput over several years. Such an amount, over close to a decade, is not consistent only with the plaintiff having

been a drug dealer, particularly where evidence had been led and accepted by the jury that he was a tax evader. It is therefore

difficult to see how this piece of evidence could be as damaging to the plaintiff as it was held to be. Moreover, to the extent that the

phone call made by Mr. O’Grady to Mr. McDonagh while the former was in custody was considered by the Court of Appeal to be a

factor weighing in support of the truth of the drug dealing allegation, it is clear that this too was misconstrued by that court: the

phone call in question had in fact occurred two years previously, in relation to an arrest and detention following a different drug

importation. It is the first point as noted in the preceding paragraph, however, that requires examination.

76. With great respect, it is not immediately obvious how the Court of Appeal could say, on the one hand, that the garda evidence

was in effect unchallenged, and yet on the other, acknowledge that:-

“… it was at all times made clear that [the plaintiff] disputed the accuracy of the statements which he was said to

have made while in custody. All the Garda witnesses must be taken to have known that there was a standing

objection to their evidence insofar as it touched on the accuracy of the notes which had been taken of the

plaintiff’s interviews while in custody. No complaint can, accordingly, really be made on this ground about the failure

to put certain matters in cross-examination to the Garda witnesses.” (para. 53; see also para. 51)

Perhaps the explanation can be found in the point being addressed, which, as the passage shows, was one dealing with the ‘fair

procedure’ aspect of Browne v. Dunn. Even so, the mix is somewhat curious.

77. The Court placed much reliance on certain particular statements recorded in the garda notes, which in its view were key to the

justification plea. Apart from pure denial, it said that such statements “otherwise went unchallenged”. The matters in question (see

para. 79 of the judgment) were Mr. McDonagh’s knowledge of:-

(i) his brother’s role in bankrolling the operation, that he knew who had acquired the drugs and where they were

purchased, and also knew the route by which they were imported into the UK;

(ii) the person who had been pressurised, and by whom, to bring them into this jurisdiction; and, finally,

(iii) the identity of the intended drug distributor in the Sligo region.

78. Leaving aside the passage quoted at para. 76 of this judgment, in my view it is clear that the notes and hence the evidence of

the interviewing gardaí were put in issue. The plaintiff on many occasions denied that he had ever uttered the words as variously

ascribed to him and also disputed their accuracy with the same frequency. This thus had moved from challenge and became an issue

of credibility: as such it was a matter for the jury.

The Evidence

79. As part of his evidence-in-chief, Mr. McDonagh recounted how on the morning of the fourth day of his detention, the gardaí threw

a copy of the newspaper in question into his cell and told him to take a look at it. He was then asked by his own counsel, when

referring to the article, “Are you one of Ireland’s top drug dealers?”, to which he replied “No, I am not”. A second question was “Did

you ever go by the name of ‘the Shark’?”, which he denied. The final questions were: “You have seen the Article at length?” “Yes.”

“Were you behind the huge haul of ‘Es’ and Cannabis?”, which he also denied.

80. During the subsequent lengthy and thorough cross-examination, which took the greater part of the following day, most of the

garda notes were put to him in every essential detail: this by way of a series of different questions, all variously framed. There is no

doubt but that such notes have attributed to him many statements which, if accepted as being true and accurate, unquestionably

had the capacity to sustain the defence plea on the drug and loan shark allegations. However, the focus of this point is on how such

evidence was dealt with and thus how it rested at the conclusion of the case. In this regard it is of course only possible to try and

give a flavour of the plaintiff’s answers to the questions as posed, and then only such answers as touched on the accuracy of the

notes. Four examples, which I have extracted as being reasonably representative of the entirety, will have to suffice:-

(i) Note as Put:

“Q. Did you meet Galvin and Graham and Jimmy McMorrow [a convicted drug dealer] and all them after leaving the

airport when you arrived in Stansted?

A. I think I met them on Saturday in Hackney, coming up the street.”

Cross Examination:

“A. I didn’t meet them at all.

Q. I will tell you what the garda said.

A. You are telling me what the garda are saying. I am telling you and I am telling the jury here and the judge I did

not meet them at all the next day. I got another taxi back out to Stansted and back on the plane and then home.

Q. I just want to be clear about this so you know what I am doing. They are answers that you gave them.

A. Well I never gave them these answers.

Q. You think they made these up?

A. So far as I am concerned, yes.”

(ii) Note as Put:

“Q. Was it a B&B? [where they were staying]

A. No, it was relations.

Q. Where do you get your hash?

A. Ah now, that’s telling you who’s who and what’s what.”

Cross Examination:

“Q. That was your answer to that.

A. No, I never spoke anything like that.”

(iii) Note as Put:

“A. Yes, I saw Mitsubishi and Mercedes [types of ecstasy tablets].

Q. …

A. …

Q. How did you get back to Stansted Airport?

A. Gaffney drove and Mark Gethins.

Q. Do you own a bedsit near Stansted, or have you had a bedsit rented near Stansted?

A. No, I haven’t.

Q. Did you tell Galvin you were going home?

A. No, I didn’t.

Q. Do you know anyone who has a bedsit near Stansted Airport?

A. No, I didn’t see him to tell him.

Q. Why would Calvin Carthy say that drugs were organised by you?

A. I don’t know.”

Cross Examination:

“A. I said to you I didn’t make none of these statements.

Q. Is that all made up, just tell me because I am going to call these witnesses. I am now putting them to you.

A. I can tell you that didn’t happen, none of that happened.”

(iv) Note as Put:

“Q. Where were the drugs bought?

A. Look you can buy nine bars in Spain for 25 to 35 quid. You see the Es, you can buy them in Amsterdam for 20p.

That’s fact. Jimmy brought the stuff from Spain to England and that’s fact and he didn’t use the normal way, he

went a round-about way.”

Cross Examination:

“A. I never made that statement. I know nothing about bars … I haven’t a clue what you’re on about. I never made

these statements, as I said to you.”

There are several more exchanges where the plaintiff again either disputes or denies that he ever made the statements recorded as

being his.

81. After members of the interviewing teams gave their evidence, the following exchanges took place during the course of cross-

examination. D/Garda Eddie McHale was the first such witness:-

“Q. Now, you went on to give evidence of the conversations and throughout the cross examination yesterday Mr.

McDonagh kept saying “I did not make those statements, I didn’t make those statements, I didn’t make those

statements”. You have given evidence today of the conversations that you had and the notes that you took of

them. Throughout this process Mr. McDonagh refused to sign these notes, isn’t that so?

A. That’s correct, my Lord.

Q. At the end of these interviews you would offer them to him and he would refuse to sign them?

A. That’s correct, yes.

Q. From the moment the interview process started in custody, Mr. McDonagh refused to acknowledge that these

were the notes of conversations, he kept saying ‘I am not signing them’, ‘it’s off the record’, or whatever?

A. That’s correct.

Q. You would agree, I take it, Garda McHale, that detention for seven days and seven nights is not an easy

experience?

A. No, it’s a tough ordeal. It’s a tough seven days.

Q. Absolutely. I may have lost count here, but throughout your evidence this morning of your interviews with Mr.

McDonagh about this, throughout the whole process, whatever else he may have said, he kept saying “me not

drugs”. I have eleven or twelve separate incidences just from your evidence this morning. ‘You have got the wrong

man’, ‘you have the wrong man’, ‘it’s Michael’, ‘no, not me, not for drugs’, ‘I didn’t do them’, ‘I had nothing to do

with the drugs’, and throughout that he maintained his innocence about drugs, whatever else, isn’t that right?

A. Well I wouldn’t go fully with that, my Lord, I wouldn’t agree 100% because there are parts in them statements

where he said he didn’t know what was going on in relation to drugs”.

In the cross-examination of Garda Thomas Doherty it was said:-

“Now, he has disputed, he kept repeating this in evidence, the contents of all of these garda interviews and that is

what he said in the witness box”

In respect of D/Garda Carr, defence counsel said:-

“Q. Again, I suppose I better formally put to you that Mr. McDonagh has disputed the contents of a lot of the

interviews, you say that you have the notes?

A. They are my notes in writing, yes, My Lord.”

82. It therefore seems to me that whatever else was in controversy, both parties, the trial court and the jury knew of the issue

which was being raised regarding the accuracy and reliability of these notes. Moreover, everyone must be taken as having

appreciated their critical relevance to the two central issues upon which the jury rejected the justification plea. I am therefore

satisfied that however one reads what was said in Browne v. Dunn, the position taken by Mr. McDonagh on the notes and therefore

his position on the drug dealing and loan shark allegations was in issue, and was evidentially put in issue, in this case. This view

seems very much to accord with the passage above quoted from the judgment of Hogan J. (para. 76, supra).

83. In saying this, I am not suggesting that either the examination of the plaintiff or the cross-examination of the garda witnesses

were the most potent or vigorous that I have seen or that either was at the apex of witness challenge. They were far from such, and

obviously carried with them not an insignificant level of risk. However, it may well be that this hazardous approach was taken for

tactical reasons, which I, for one, fully respect. To borrow a phrase from Sir Ignatius J. O’Brien L.C., “what were counsel to do?”

(para. 36, supra). Their client’s history, character and the state of his credibility were fully known to them, as was the garda’s view

of who he was and what he did. No matter how precisely framed or skilfully asked, it was never likely that the garda witnesses would

have enhanced his reputation. So, once the notes were sufficiently in issue, the tighter the cross-examination, the better. That may

well have been the call, and the simple explanation for the course adopted.

84. In addition to this calculated strategy, if it be that, it may well also be that one could make a very strong argument that the

evidence tendered on behalf of the defendant appeared much stronger and more cogent than that resting in favour of the plaintiff, or

that it would have been preferable if the trial judge had more forcefully contrasted the relevant positions of the respective parties in

his charge to the jury (but see para. 115, infra). These matters, however, are entirely different to the precise point under

consideration, namely, the application of Browne v. Dunn. In conclusion, therefore, I cannot accept that the evidence of the garda

witnesses was not in issue in accordance with the rule in that case as properly understood. Whilst it is difficult to know the precise

extent to which the Court of Appeal was influenced by its view of how the evidence rested, it seems quite clear that it had a decisive

bearing on its decision. Accordingly, in my opinion the Court was incorrect in this key driver of its overall outcome.

85. In assessing this aspect of the judgment in the manner in which I have, I sincerely hope that I have not mischaracterised the

pathway by which the Court arrived at its conclusion on the perversity verdict. Being satisfied that the fairness element of Browne v.

Dunn was not in any way compromised by how the evidence unfolded, and also apparently being satisfied that Mr. McDonagh’s

position vis-à-vis the garda notes was put in issue, it may be that any further reliance on the rule was simply as a vehicle by which

greater weight could be assigned to the gardaí’s evidence than it would otherwise have had. In effect a form of balancing exercise

was conducted on this issue. On the one side there was the evidence of Mr. McDonagh; however, given the adverse credibility

imputations as described by the learned judge, the same was accorded very little weight indeed. On the other side, there was i) the

effectively unchallenged garda evidence; ii) the evidence of the trip to England, which was highly probative in its own right; and iii)

the evidence of the sum of money in the plaintiff’s bank accounts. Viewed as a whole, Hogan J. felt coerced to the conclusion that

the only plausible interpretation of this evidence was that the plaintiff was a drug dealer.

86. Having said that, however, it is clear that such an analysis is entirely unrelated to any possible application of Browne v. Dunne, a

fact almost certainly appreciated by the Court of Appeal. If that be the case, it may very well be that at this point in the judgment

the rule simply fell away and ceased to have relevance. In truth it is difficult to say. Either way, I cannot agree at the level of

principle that the Court’s conclusion on the drug dealing allegation was correct.

87. Whilst acknowledging that there may indeed be some circumstances where the weight of the evidence truly all goes one way,

such that a jury verdict to the contrary would indeed be perverse, this was not such a situation. The jury’s verdict may seem

unexpected, even surprising; however, it is not the case that there was no evidence, or no sufficient evidence, to support that

verdict. The competing versions of events as regards the making of the statements in garda custody, on which the truth or falsity of

the drugs allegation must have hinged, surely place this case firmly in the realm quintessentially reserved for determination by the

jury. The weight of the evidence was not so one-sided as to warrant intervention by the Court of Appeal.

88. I reach this conclusion even taking the evidence as Hogan J found it. However, I am fortified in this regard by a number of other

factors. As above stated, the evidence of the standing balance in the plaintiff’s bank account was misunderstood by the Court of

Appeal (para. 75, supra); the reality does not provide anywhere near so much support for the drug-dealing allegation as did the

meaning which the Court of Appeal attributed to such evidence. Similarly, the evidence of the telephone call between Mr. O’Grady and

Mr. McDonagh was also misinterpreted by the Court of Appeal (para. 75, supra). Although one would agree that the plaintiff’s

credibility was affected by the matters identified at para. 91 of the judgment under review, these did not justify the Court in essence

setting his credibility at zero. Moreover, it equally erred in according too much importance to the “unchallenged” nature of the garda

testimony; whilst such was undoubtedly more influential than it would have been after a robust challenge, the absence of a firmer

cross-examination could not have had the effect of making the jury’s task a foregone conclusion on the issue. There remained

evidence both ways. The verdict reached by the jury was sustainable on that evidence, even if only just. Its decision was one which

it was entitled to make. Accordingly, the Court of Appeal erred in concluding that the verdict was perverse.

The Role and “Sanctity” of the Jury in Defamation Proceedings

89. By way of background to this matter, it is worth addressing briefly, once again, the particular standing and role of the jury in

defamation actions. As noted by McCarthy J. in Barrett v. Independent Newspapers [1986] I.R. 13 (“Barrett”), “[t]he law reports

abound with judicial tributes to the particular respect that must be accorded to the verdict of a jury in libel actions” (p. 35 of the

Report). The learned judge then cited the well known passage from Quigley v. Creation Ltd. [1971] I.R. 269 (“Quigley”), where Walsh

J. at p. 272 stated that:

“Basically, the question of libel or no libel is a matter of opinion and opinions may vary reasonably within very wide

limits. When a jury has found that there has been a libel, this Court would be more slow to set aside such a verdict

than in other types of actions and it would only do so if it was of opinion that the conclusion reached by the jury

was one to which reasonable men could not or ought not have come. …

In defamation, as in perhaps no other form of civil proceedings, the position of the jury is so uniquely important

that, while it is for the judge to determine whether the words complained of are capable of a defamatory meaning,

the judge should not withhold the matter from the jury unless he is satisfied that it would be wholly unreasonable to

attribute a libellous meaning to the words complained of. …”

The underlined phrase was endorsed by the majority of the court in Berry v. Irish Times [1973] I.R. 368 (“Berry”).

90. In Cooper-Flynn v Raidió Teilifís Éireann [2004] 2 I.R. 72, Denham J. (as she then was) stated at p. 121 that:

“115. It is vital also to consider the role of the jury, for the role of the jury is critical. The jury makes the decisions

on fact, including the kernel issue as to whether the plaintiff's reputation suffered material injury. Appellate courts

have been slow to interfere with decisions of juries. This is especially so in defamation actions where the role of the

jury is pivotal.”

Having referred to the above passage of Walsh J. in Quigley, Denham J. continued as follows:

“116. As a consequence of the pivotal role of the jury in a defamation action this court is slow to set aside such a

decision. In this case twelve members of the community, the jury, gave over a month of their time to listen to the

evidence and give a considered verdict on the issues of the case, including as to whether the plaintiff's reputation

suffered materially in the circumstances. I would be reluctant to intervene with their decision unless required by law

or the Constitution.”

Moreover, at para. 119 the learned judge stated that, in general, an appellate court will only interfere with a decision by a jury in

defamation proceedings where there are strong grounds to do so, and adopted the following passage from Gatley on Libel and Slander

(10th Ed., 2003) at para. 36.19 (p. 1065) as a correct statement of the law:

“Only on very strong grounds will the court in an action for defamation interfere or set aside a verdict or grant a

new trial on the ground that the verdict is unreasonable or perverse. An appellate court ought not to find the

verdict of a jury on liability to be perverse unless there is no rational explanation for it.”

These are but two examples of the multiple decisions and statements of law which emphatically declare the special and distinct

nature of the jury’s role.

91. In the neighbouring jurisdiction, Lord Bingham of Cornhill, in Grobbelaar v News Group Newspapers and Ltd [2002] U.K.H.L. 40,

[2002] 1 W.L.R. 3024, described the threshold for interference with a jury finding in a defamation case as follows:

“[I]t is a very serious thing to stigmatise as perverse the unanimous finding of jurors who have solemnly sworn to

return a true verdict according to the evidence. A jury may, of course, from time to time act in a wholly irrational

way, but that is not a conclusion to be reached lightly or if any alternative explanation not involving perversity

presents itself.” (pp. 3034-3035)

92. As a consequence, an appellate court may not find a jury’s decision perverse merely because it disagrees with it or would have

decided otherwise. It may do so only where the decision is totally irrational and, by any objective justification, is incompatible with

any reasoned alternative: in short, it must be one which no reasonable jury could have reached. Moreover, that a particular degree of

“sanctity” attaches to a jury’s assessment of damages in a defamation case is not in doubt and has been reaffirmed on many

occasions: on this issue see para. 128 et seq., infra.

93. As to its role, it is helpful to set out in the first instance, though perhaps non-exhaustively, the many and varied functions

performed by a jury in a defamation case. Provided the judge is satisfied that the words are capable of carrying the defamatory

meaning as alleged (Duffy v. News Group Newspapers Ltd [1994] 1 I.L.R.M. 364), it is for the jury to decide whether the words in fact

convey such meaning. The jury must also determine whether the words are in fact defamatory, in the sense of lowering the plaintiff’s

reputation in the eyes of his “right-thinking neighbours” (Berry, Ó Dálaigh C.J. at p. 376). The jury will assess where the ‘sting’ of the

publication lies. If the truth of the allegation is pleaded, it is for the jury to determine whether the author has established his

justification plea. If such a defence is successful on some but not on all of the imputations, it may be called upon, as in this case, to

assess the impact of the ‘proven’ statements on the plaintiff’s remaining reputation. Finally, the jury will also assess what the

damages equivalent should be so as to offset the reputational damage caused by the publication. Again, as in this case, this may

involve taking a plaintiff’s already impaired reputation as the starting point.

94. In their submissions the parties have adopted conflicting positions on whether the “sanctity” of jury findings in defamation cases

extends to each potential aspect of its decision-making, or whether some elements thereof are by their nature more amenable to

appellate review than others. The appellant submits that it is wrong to suggest that some jury findings ought to be more vulnerable to

judicial intervention than others; it is not appropriate to rank their findings in order of credibility, as to do so diminishes the overall role

of the jury in an unacceptable manner. The respondent, on the other hand, submits that whatever sanctity may exist applies only to

the areas where the jury has a special role as arbiters of community values: i.e. meaning and damages. It is suggested that the same

rationale does not extend to findings of fact, and that none of the authorities on this point relate to such findings. There is thus no

reason to confer any particular status on its verdict relative to a defence of truth, which is therefore not subject to any special

standard of appellate review.

95. As a starting point, and leaving aside meaning and damages, I am resolutely of the view that the jury’s findings in relation to each

aspect of its function are entitled to considerable respect and deference. For my part I am highly sceptical that it is either desirable

or necessary to create a hierarchy in which certain findings are more susceptible to review than others. I do, however, acknowledge

the particular consideration which underpins this sanctity in the first instance, namely, the jury’s role as arbiters of community values,

and that such may not inevitably apply with precisely the same force in respect of a justification plea. To the extent that it might be

suggested that this makes their findings on such point more amenable to challenge, it would have to be stressed that even in this

respect the jury’s determination must be given substantial weight. In any event, for the reasons which I am about to explain, it is

unnecessary to further explore the boundary of this issue.

96. The meaning of the publication in issue is clear: that the appellant was a criminal, a tax evader, a loan shark and a drug dealer.

There is no dispute but that these allegations, if untrue, were defamatory. Thus this is not a case where the appellate court has

substituted its own view of whether the words do or do not bear the alleged defamatory meaning. Neither is there any issue as to

where the ‘sting’ of these publications lay.

97. The issue truly presenting on this aspect of the appeal is whether the jury could reasonably have concluded that the defendant

had failed to establish the truth of the drug dealing and loan sharking allegations on the balance of probabilities. On the basis of the

evidence, this is a question which can be answered without assigning any particular sanctity to a jury’s finding on truth, where that is

raised as a front line defence in a defamation case. In effect, the proper conclusion on the drug allegation can be reached even if a

position of neutrality is taken and the non-defamatory test is applied. If by such a yardstick the decision under appeal was wrong as

a matter of law, it is evidently also wrong if the higher standard of respect or degree of reverence should be applied.

98. For the reasons outlined above, I am satisfied, by reference to the standard review test, that the trial judge was correct to let

this matter go to the jury and that it was within its province to make a decision on the issue. On such basis, it follows that the Court

of Appeal was in error in setting aside the jury verdict on the drug allegation regardless of whether any special veneration should or

should not attach to its finding in this respect.

C.Q. No 2: Constitutional Considerations

99. As this certified question has a direct bearing on the Court of Appeal’s decision to enter on the record an affirmative finding

against the plaintiff on the drug allegation, it will be convenient to address it before returning to the sustainability or otherwise of

that decision. The question on which leave was granted was “whether the media have a constitutional right to publish material, and

that this right cannot be compromised by a jury verdict to the effect that such material was defamatory of the plaintiff” (C.Q. No. 2).

This issue arises from the following passages of the judgment of the Court of Appeal.

“59. It is true, of course, that as Hamilton C.J. said in de Rossa and as Dunne J. said in Leech, neither the

Constitution nor the European Convention of Human Rights gives any right to defame another under the guise of

freedom of expression. The converse, however, is also true: if the published words are true in substance or in fact,

then the author has a constitutional right by virtue of Article 40.6.1.i to publish these words as part of his or her

‘convictions or opinions.’ This is especially true in the case of the media whose ‘rightful liberty of expression’ is a key

component of Article 40.6.1 itself.

61. All of this has a relevance, however, to the question of the perversity of a jury verdict and the capacity of this

Court to review such a verdict. If it is clear that the article complained of is true in substance and fact, then the

media's constitutional right to publish this material cannot be compromised by a jury verdict to the effect that it is

defamatory of the plaintiff, the traditional near sanctity of such verdicts at common law notwithstanding. Any other

conclusion would mean that the appropriate balance envisaged by the Supreme Court in both de Rossa and Leech

would not have been struck, since the substance of the media’s constitutional right to publish material which is in

fact true would indeed have been compromised.” (Emphasis added)

100. I do not see that there is added value in attempting, as the parties have done, to derive from the constitution a preference for

the right to a good name over the right to freedom of expression, or vice versa. One cannot but agree that the competing values

protected by Articles 40.3.2° and 40.6.1° of the Constitution come into play in a defamation case such as this. In the above

passages Hogan J. has perhaps emphasised the Article 40.6.1° side of the coin more than previous cases have done, but I do not find

that objectionable in itself. It does not, however, lead to the creation of any sort of ranking system. In addition, neither do I see any

necessity to determine whether, within Article 40.6.1°, there are greater restrictions on media outlets, who are “organs of public

opinion”, than on natural persons. Such decision does not enhance the resolution of this issue.

101. Inherent in the nature of the cause of action itself is the conflict between the right to a good name, on the one hand, and the

right protected by Art. 40.6.1 of the Constitution (“freedom of expression”), on the other. A plaintiff invariably alleges a breach of the

former whilst a defendant will invariably invoke the latter. Such rights naturally underpin the arguments both ways. Whilst it is

important to remain mindful of this backdrop at the level of generality, I do not believe that recourse to and discussion of such broad

constitutional guarantees is necessary in every defamation judgment, nor do I see that it adds much to the instant case. As I noted

in Leech, neither value is absolute and neither one as a matter of principle takes precedence over the other at any level of the legal

system (para. 59 of the report). Thus whilst always mindful of the constitutional environment against which defamation cases are set,

I do not believe it is necessary to frame or enhance the debate in every case through this lens.

102. The imperative in Article 40.3.2° is that “[t]he State shall, in particular, by its laws protect as best it may from unjust attack

and … vindicate the … good name” of every citizen (emphasis added). Quite evidently in so providing the state must likewise duly

respect the other rights protected at constitutional level, including those dealing with freedom of expression. The legislature, in order

to give effect to both sets of rights in this area, has intervened in the shape of the Defamation Act 2009 and earlier with its

predecessor of 1961, in order to ensure that the appropriate balance is struck between these competing fundamental rights. The

statutory framework thus created achieves two broad objectives. First, together with the common law of torts, it adequately

protects the citizen’s good name in a manner which does not require modification in light of the Constitution. Secondly, it has

provided for the exercise of Art. 40.6.1° rights in a manner which is reconcilable with safeguarding one’s good name. As there is no

suggestion that this regime, and in particular the legislation so enacted, is defective or unconstitutional, I do not believe that it is

necessary to look behind this framework and invoke the Constitution in order to tackle the issues arising in a defamation case.

103. At some level it may be suggested that Hogan J, in the extracts above quoted, intended to suggest that there is an unqualified

right to publish material notwithstanding that it has been held by a jury to be defamatory. At a most basic level, that of course would

be some statement to make. However, I do not take this meaning from what is stated; not because of any particular deference to

the learned judge’s undoubted constitutional expertise, but rather because that is not what an ordinary reading of these paragraphs

suggests to me. This is not an invitation to the media to publish established defamatory comments merely on the basis that the

publisher believes that they are nonetheless true, or perhaps even where there is no such belief. I read it instead as an ex ante

justification for the course pursued by the Court of Appeal in substituting its own finding of fact for that of the jury on the drugs

issue.

104. If an appellate court is presented with a jury finding that certain comments are defamatory, and the court takes the view that

such verdict is unsustainable and perverse, the proper balance to be struck between freedom of speech and the right to one’s good

name requires the intervention of the court to vindicate the right to publish the true material. The quoted passages of the judgment,

on my reading at least, indicate no more than that a court cannot let stand what it concludes is a perverse jury verdict; they do not,

however, give a green light to publish material that is defamatory. Insofar as the question on which leave was granted is concerned,

the position must remain that no man has the right to defame another.

105. I would therefore agree with Hogan J. at the level of principle that a genuinely perverse and unsustainable jury verdict on the

defence of truth, leading to disproportionate damages, could constitute an unjustifiable attack on freedom of expression. Where I

would differ is in respect of the Court of Appeal’s decision that the jury’s finding in this case was in fact perverse or unsustainable.

Here, as the verdict is supported by the jury’s legitimate call on the evidence, the same could not be considered as an attack on the

media’s right to publish material. As previously stated, I am entirely satisfied that Hogan J did not intend to suggest that there is an

unqualified right to publish material once it is true; such is evidently not the position.

106. As an aside, it is worth addressing the argument that a jury’s finding that a statement was defamatory ipso facto extinguishes

any right to publish again that same statement. A situation may arise where a media outlet publishes an article making damning

allegations against an individual. Let us hypothesise that it is sued in defamation, pleads the truth of the matter as a defence, but

fails to establish that the statement was true in all material respects. We will presume that the jury finds that the statement in

question is defamatory and then returns a verdict to that end. What would then be the situation if another media outlet had in its

possession much stronger evidence of the truth of the allegation, even incontrovertible evidence of same? Likewise if the original

publisher subsequently comes into possession of new evidence which would, to a probability of almost certainty, convince a jury of

the truth of the allegation in question. It quite simply cannot be the case in either situation that the existing jury verdict, finding the

remarks to have been defamatory, could continue to act as a bar, “per se”, to the re-publication of those remarks. There is no right

to defame another but equally there is no justification for the truth forever being obscured. Whilst other legal principles may come

into play in the circumstances described, the laws of defamation on their own may not be an answer to an aggrieved plaintiff.

107. It must however be stressed that this does not give any licence to republish offending material simply because the publisher

disagrees with the jury’s finding. Any publisher electing to do so runs a very real and serious risk of incurring aggravated damages if it

cannot establish the veracity of the allegations. Rather it is simply that the situation remains as it has always been: truth is a

defence to defamation.

108. The question remaining is whether it was appropriate for the Court of Appeal to go beyond merely setting aside the jury’s verdict

on the drug allegation, and in effect to substitute a justification finding in its place. No authority was quoted for such a step, and

none was opened before this Court. Neither does it appear that reliance was placed on section 96 of the Courts of Justice Act 1924

(see the discussion on the section in Holohan v. Donohue [1986] I.R. 45). It appears, as I have said at para. 103, above, that the

Court rested its decision on the constitution.

109. Holohan is of interest in this context for another aspect of what was said. At p. 52 of the report, Finlay C.J. said that:

“I have had the opportunity of reading the judgment which is about to be delivered by Mr. Justice McCarthy. I do

not differ from him in the view that the appellate jurisdiction of this Court, even when untrammelled by legislation,

has other inherent limitations, and, in particular, would agree that this Court may not substitute its own findings of

fact for findings of fact made by a court of trial (whether consisting of a judge sitting without a jury or with a jury)

which are supported by evidence.”

110. In Grobbelaar, Lord Bingham stated at para. 26 that:

“If the jury's finding in favour of the appellant could not be explained on any ground not indicative of perversity, the

Court of Appeal would have been not only entitled but bound to quash it, and the contrary was not argued. But the

task of an appellate court, whether the Court of Appeal or the House, is to seek to interpret the jury's decision and

not, because of justifiable dissatisfaction at the outcome, to take upon itself the determination of factual issues

which lay within the exclusive province of the jury.”

At para. 55 of the report in that case, Lord Hobhouse, referring to the judgment of Simon Brown LJ in the Court of Appeal, stated that

“In so far as Simon Brown LJ … comments upon the facts of the case and expresses his own view about them, he is improperly

trespassing upon the function of the jury.”

111. Hogan J., at paras. 67-73 of the Court of Appeal judgment in this case, relies upon the decision of the UK Court of Appeal in

Grobbelaar as authority for an appellate court interfering with the verdict of the jury where the evidence of the truth of the alleged

defamatory statement is irrefutable. The learned judge reasons that it is clear that the House of Lords would have followed this

approach had it not found that the jury could have considered that the sting of the article lay not in Mr. Grobbelaar’s acceptance of

corrupt payments, but rather in the allegation that he had deliberately let in goals and so fixed football matches.

112. Having reviewed the evidence, Hogan J. concluded as follows on the issue of the drug dealing allegation:

“92. Reviewing the evidence as a whole, I find myself coerced to the conclusion that it shows overwhelmingly that

the plaintiff was, indeed, a drug-dealer and that the jury's conclusion to the contrary was perverse and cannot be

allowed to stand. The unchallenged Garda evidence pointed unambiguously to the plaintiff’s deep involvement with

the drugs shipment, a conclusion underscored by all the known facts regarding the UK trip which showed the

plaintiff travelling with and associating with the persons convicted of possession of the drugs and other persons

who were either drug dealers or reputed to be drug dealers. To this may be added the unchallenged evidence of the

very large sums lodged in the plaintiff's bank account for which there was no satisfactory explanation.

94. The jury's finding of fact that the plaintiff was not a drug dealer was accordingly one which, in the words of

MacMenamin J. in MC v. FC ‘cannot in all reason be supported by the evidence.’ The evidence quite clearly showed

the contrary, namely, that the plaintiff was indeed a drug dealer. …”

113. In so holding, the Court of Appeal, in effect, supplanted the jury as the trier of fact on this issue. I am not familiar with any

authority from this or the neighbouring jurisdiction in which such a course has been adopted. I do not accept that it was appropriate

to do so, nor does any aspect of the constitutional right of freedom of expression either warrant or demand it. The Court exercises a

review jurisdiction and not a primary one making findings of fact, particularly so in defamation proceedings where the jury’s role is

undoubtedly unique. Accordingly, I do not think the Court of Appeal should have embarked upon this further step, even having

decided on the perversity finding.

C.Q. No. 3: the Loan Shark Allegation and the Need for a Credibility Warning

114. This issue was dealt with at paras. 96-99 of the judgment of the Court of Appeal. Briefly put, the judgment of the Court

recounts that according to Garda Doherty’s evidence, the plaintiff admitted during a garda interview on the 8th September, 1999,

that he was a money lender. The newspaper called no other evidence on this issue and the plaintiff denied having made such

statement in custody. The Court of Appeal again pointed out that there was no effective cross-examination of Garda Doherty on this

point. The limited nature of the evidence both ways was such that Hogan J. had cause to hesitate before finding the jury’s verdict

perverse. Nonetheless, the learned judge was compelled to the view that the verdict could not stand. The failure to cross-examine

Garda Doherty meant that his evidence carried considerable weight, and although it was open to the jury not to accept this evidence,

such was only permissible if there was a rational basis for doing so. Whilst Hogan J. accepted that the mere denial of making the

statement could have sufficed for this purpose, he stated that the jury would have to have been instructed that, viewed objectively,

the plaintiff’s credibility had been heavily compromised. Here I take it that the learned judge was referring back to para. 91 of his

judgment, where he stated that:

“[T]here are, nevertheless, factors which, viewed objectively, must be taken to have weakened considerably his

credibility as a witness. He had, after all, claimed damages at the outset of the trial on a basis which he must have

known to have been false, namely, that he was not a criminal or a tax cheat. By the conclusion of the evidence it

was, indeed, accepted that he was a criminal and a tax cheat. He also claimed that CAB had never accused him of

drug dealing and this was likewise demonstrated to have been false.”

As the jury had not been warned in “precise terms” that the plaintiff’s credibility had, objectively, been heavily compromised, the

learned judge directed a retrial on this issue.

115. At the outset, it is worth setting out in some detail the relevant portions of the judge’s charge and noting what he did say as

regards the plaintiff’s credibility and in relation to the loan shark allegation. He stated that:

“A great deal of your decision-making will be based on [Mr. McDonagh’s] credibility and the evidence that he gave.

You will be entitled, when considering his credibility, to make a decision on his credibility on everything he said. One

of the most important matters in this, I suggest to you, and it is a matter for yourselves, I emphasise, was the

manner in which he dealt with the examination in relation to his seven days in the Garda Station in Manorhamilton.

He insisted that the statements were not accurate, the statements that the Gardaí gave evidence about and that

were read out to you. I began to count the number of times he said “I didn’t make that statement”, or words to

that effect. I stopped after 30. There were considerably more than 30 denials that he made those statements.

Now, you heard the evidence. You heard what he said. You heard the Gardaí. Do you think he made those

statements? If you think he did make those statements, why do you think he denied making those statements?

That is a question of credibility. And I must point out to you that in no case, save almost in relation to Detective

Garda Michael Carr, was it put to any of the Gardaí when they gave evidence in cross-examination by counsel for

the plaintiff that in fact the plaintiff’s version was correct that he didn’t make the statements. It wasn’t suggested

to the Gardaí by his counsel that in fact he hadn’t made those statements and that they weren’t an accurate

recounting of what he had said when in Garda custody. Those are matters, ladies and gentlemen, as I have

emphasised, that you are entitled to draw inferences from. And you are entitled to draw conclusions from them.”

116. Moreover, in charging the jury that the evidence had focused for the most part on the drug dealing allegation, the learned trial

judge stated that:

“He denied being not only a drug dealer but being a loan shark, tax evader and criminal. But his counsel in summing

up the matter to you more or less conceded that he is in fact susceptible of being considered a loan shark, a tax

evader and a criminal on the basis of the evidence that was adduced before you.”

117. Having rightly emphasised to the jury that it was free to disregard his view, and that the matter was ultimately one for them,

the learned judge again stated that:

“[H]aving said that, it appears to me on the basis of the evidence that there was sufficient evidence, which wasn’t

contradicted, to establish that the plaintiff was a tax evader, a criminal and a loan shark as far as this case is

concerned. He effectively conceded all of those in his own evidence.”

118. Finally, in summing up Question 1 for the jury, the judge stated that:

“So that more or less deals with Question 1. Question 1(a) [drug dealing] I suggest to you is the one that you will

give most of your attention to. But although I have suggested to you in relation to (b), (c) and (d) [that] the

evidence has already been given and there doesn’t appear to be much dispute about it, that is a matter for you and

not for me.”

119. Taking all of these statements together, I am of the view that the jury was adequately charged in relation to the money lending

allegation. There is no rule prescribing the content of such a charge, nor are any particular formal words required. As appears from

the above, the jury was clearly instructed that the plaintiff’s credibility was a key consideration in reaching their decision. In

particular, the trial judge highlighted that the jury members were entitled to draw inferences and conclusions from the lack of

effective cross-examination of the garda witnesses regarding the relevant statements. These instructions, it must be acknowledged,

were made in the context of the drug dealing allegation rather than the loan shark allegation. However, given that the plaintiff’s

denials of having made the statements in police custody inevitably had to form the basis of the jury’s finding on each of those issues,

I am satisfied that the comments must be taken as having been equally applicable to his denials of having made the statements

attributed to him in support of the money lending allegation.

120. Although with the benefit of hindsight one might always suggest that particular evidence might have been better highlighted, or

that certain passages of what the judge said might perhaps have been phrased differently, the charge must be assessed in its totality

and with due regard to the circumstances in which it was made, that is, to a particular jury after a trial in a particular case. It is true

that the jury were not warned specifically about the effect on the plaintiff’s credibility of the matters set out at para. 91 of the

judgment of the Court of Appeal. However, it was made clear that the plaintiff’s credibility was a central issue and that he had not

effectively challenged the garda evidence on cross-examination. Furthermore, the learned judge made known his own view of the

evidence on the money lending allegation on no less than three occasions. In all the circumstances of the case, I do not believe that

the judge was required to draw the jury’s attention specifically to the said matters at paragraph 91 of the Court of Appeal’s judgment.

The charge was adequate and does not provide a basis to set aside the “loan shark” allegation.

The Jury’s Failure to Answer Question No. 2 on the Issue Paper

121. It will be recalled that three questions were left on the issue paper for the jury (para. 12, supra). The second of these questions

would only arise in circumstances where the jury found that the newspaper had proved one or more of the allegations set out in

Question No. 1, but not all of them. If this were to occur, Question No. 2 required the jury to consider whether the words not proved

to be true materially injured the appellant’s reputation in light of the truth of the other allegations. As can be seen, this eventuality

did in fact arise, as the jury found that the newspaper had proved the appellant to be a tax evader and a criminal, but not that he

was a drug dealer and a loan shark. In essence, the effect of the question was to ask the jury to determine whether, in light of the

proven allegations, the appellant had any reputation left to defame. Unfortunately, the jury did not answer the question posed.

122. Question No. 2 reflected section 22 of the Defamation Act 1961 (“Justification”), which provided as follows:

“22.—In an action for libel or slander in respect of words containing two or more distinct charges against the

plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved, if the

words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the

remaining charges.”

A similar provision is now contained in section 16(2) of the Defamation Act 2009.

123. The issue of partial justification and the consequences thereof was considered by the House of Lords in Grobbelaar. As explained

by Lord Bingham, “[t]he tort of defamation protects those whose reputations have been unlawfully injured. It affords little or no

protection to those who have, or deserve to have, no reputation deserving of legal protection” (para. 24). The issue in that case

arose in circumstances where the court was satisfied that the defendant newspaper had proved that the plaintiff accepted corrupt

payments, but had not managed to prove what the jury perceived as the ‘sting’ of the publication(s), namely, that the plaintiff had

fixed football matches by deliberately conceding goals. Both Lord Bingham (at para. 24) and Lord Millett (at para. 68) considered that

it would be an affront to justice if the plaintiff were to recover substantial damages for injury to his reputation in circumstances

where he had been proven to have accepted bribes. As further stated by Lord Hobhouse at para. 54:

“54. This was a case in which the quantum of damages was a real issue and, at the request of the defendants, a

Pamplin direction was given: see Pamplin v Express Newspapers Ltd (Note) [1988] 1 W.L.R. 116. A Pamplin direction

addresses the situation where a plaintiff is entitled to a verdict in his favour on the justification issue but the

evidence properly before the jury on the issue of justification has disclosed that the reputation to which he is

entitled is so depreciated that the damages which he should be awarded for the damage to his reputation by the

(ex hypothesi) defamatory publication should be reduced below the level that would be appropriate for a plaintiff

with an impeccable reputation, maybe even to a nominal figure; as Neill LJ said in Pamplin , at p 120:

‘There may be many cases, however, where a defendant who puts forward a defence of justification will be

unable to prove sufficient facts to establish the defence at common law and will also be unable to bring

himself within the statutory extension of the defence contained in section 5 of the Defamation Act 1952.

Nevertheless the defendant may be able to rely upon such facts as he has proved to reduce the damages,

perhaps almost to vanishing point. Thus a defence of partial justification, though it may not prevent the

plaintiff from succeeding on the issue of liability, may be of great importance on the issue of damages.’”

124. One can readily understand the application of this principle to the present case. Given the substantiated allegations, could it be

said that the appellant had any reputation left to protect? Moreover, even if so, what consequences would the proven statements

have for the damages award? Regrettably, as above stated, the jury failed to provide any answer to Question No. 2, instead

proceeding directly to the assessment of damages under Question No. 3. As explained by Hogan J. at paras. 102-103 of the judgment

of the Court of Appeal, this failure to answer the second question was an error on the jury’s behalf. The question, reflecting the

statutory provision above quoted, was framed in mandatory terms and it was not open to the jury to disregard it.

125. I would also agree with the further observations of Hogan J. It is true that one might infer that as Question No. 3 is premised on

Question No. 2 being answered in the affirmative, the jury must have concluded that the untrue allegations did cause material damage

to the plaintiff’s reputation notwithstanding the true allegations. Indeed, this could well have been what occurred. However, the jury’s

failure to provide an answer to the question leaves open the possibility that they misunderstood it, or perhaps even ignored it

altogether. If that is the case, the jury failed to give consideration to a defence which was open to the newspaper under the 1961

Act. It is unclear how or why this might have occurred. Simply put, Question No. 2 reflects an important aspect of the jury’s function

in a defamation trial consisting of two or more distinct allegations against the plaintiff. As one cannot be sure that the question was

taken into consideration, it is difficult to conclude that the verdict returned was in accordance with law.

126. Moreover, the jury’s failure to provide an answer to Question No. 2 has potential implications for the quantum of damages also,

as it is unknowable for what reputation the restitution awarded was made.

127. The Court of Appeal held that the jury’s failure to answer the second question would have been a sufficient basis, of itself, to

justify setting aside its verdict. Although the appellant sought leave from this Court to appeal this point, such application was

refused. The respondent has noted in its written submissions that the result of this refusal of leave is that there must be a retrial

regardless of the outcome of this appeal. This and related points are dealt with at paras. 137-139, infra.

Threshold for Interfering with the Quantum of the Jury Award

128. There is no question but that the “sanctity” of the jury in defamation cases extends also to its assessment of damages. An

appellate court will not lightly intervene to set aside a jury award. McCarthy J. stated at p. 35 of Barrett that the observations of

Walsh J. in Quigley (see para. 89, supra) “apply no less to the assessment of damages than they do to the issue of libel or no libel.”

Also in Barrett, Finlay C.J. stated at p. 19 of the report that:

“With regard to the appeal against the amount of the damages, certain principles of law are applicable. Firstly,

whilst the assessment by a jury of damages for defamation is not sacrosanct, in the sense that it can never be

disturbed upon appeal, it certainly has a very unusual and emphatic sanctity in that the decisions clearly establish

that appellate courts have been extremely slow to interfere with such assessments, either on the basis of excess or

inadequacy.”

129. Referring to UK case law, Hamilton C.J. noted in de Rossa that “the assessment of damages was peculiarly the province of the

jury in an action for libel” (p. 446 of the report). He emphasised this point later in his judgment by also quoting a passage from the UK

Court of Appeal’s decision in John v. MGN Ltd [1997] Q.B. 586, 616.

130. Nonetheless, it is clear that the courts will – and indeed are obliged to – interfere with jury awards which are wholly

disproportionate, excessive or “perverse”. A determination to this effect is inherently linked to the facts and circumstances of the

case. The threshold at which such judicial intervention is required has been articulated in a variety of ways in prior cases. In Barrett,

McCarthy J. considered that he was “reluctantly driven to the conclusion that the award so far exceeds an acceptable norm as to be

unreasonable and perverse” (p. 35 of the report). Per Finlay C.J. in the same case:

“[N]otwithstanding the fact that this is clearly a case in which a jury would be entitled to award really substantial

damages, I am forced to the conclusion that the sum of £65,000 awarded by the jury is so far in excess of any

reasonable compensation for the allegation which was made, that it should be set aside.” (p. 20 of the report)

Similarly, Henchy J. stated that:

“[A] fundamental principle of the law of compensatory damages is that the award must always be reasonable and

fair and bear a due correspondence with the injury suffered. In my view, the sum awarded in this case went far

beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded.

It is so disproportionately high that in my view it should not be allowed to stand.” (p. 24 of the report)

(See also McDonagh v. News Group Newspapers Ltd. (Unreported, Supreme Court, 23rd November, 1993))

131. Hamilton C.J. in de Rossa framed the test thus:

“[A]n appellate court should only set aside an award made by a jury in a defamation action if the award made is one

which no reasonable jury would have made in the circumstances of the case and is so unreasonable as to be

disproportionate to the injury sustained.” (p. 463 of the report)

The learned Chief Justice rejected the submission that larger awards should be subject to more searching scrutiny, stating that:

“[W]hile awards made by jury must, on appeal, be subject to scrutiny by the appellate court, that Court is only

entitled to set aside an award if it is satisfied that in all the circumstances, the award is so disproportionate to the

injury suffered and wrong done that no reasonable jury would have made such an award.” (p. 463 of the report)

132. In O’Brien, Keane C.J. stated that “I am conscious of the care which must be exercised by an appellate court before it interferes

with the assessment of damages by a jury in a case of defamation, but, having weighed up all the factors to which I have referred, I

am satisfied that the award in this case was disproportionately high and should be set aside” (p. 22 of the report). In the same case,

Denham J. stated at p. 37 of the report that “[e]ven allowing for the circumstances of this case, it is an award which in my view is

beyond the range in that it is so incorrect in principle, it is so disproportionate, that it should be set aside”. For Dunne J. in Leech,

“[e]ven accepting that this case is one that comes towards the higher end of the scale, I am satisfied that the award made by the

jury in this case was excessive and must be set aside” (p. 284 of the report).

133. In my judgment in Leech, I dealt extensively with the review test and considered much of the relevant case law (paras. 50-60 of

the report). At para. 56 I stated:-

“In addition, it is obvious to say, but nonetheless needs to be said, that damages cannot be assessed by some

mathematical formula or statistical model absorbing the multiple variations which arise and which, having duly

assessed and weighted each factor of relevance, arrives at an award immune from appellate scrutiny. There is no

series of preset rules which provide a just answer in all cases. Given the diversity of each case, all that can be said

is that once the decision maker has had due regard to all material facts and in its award reflects what is a fair,

reasonable and proportionate response to the wrong caused and the harm done, both on the personal and public

side, the ultimate figure will not be considered or set aside as being disproportionately high.”

134. Having acknowledged that an element of subjectivity is involved, but that such “is conditioned on the one hand by the

requirement to reflect in the award and on review each of the component part of the wrongdoing, as well as the wrongdoing as a

whole, and on the other hand is constrained by the necessity of fairness and proportionality”, I concluded at para. 60:-

“However, notwithstanding the status of its damages award, there is no doubt but that in an appropriate case a

jury’s verdict can be set aside as being unresponsive to the test above outlined. If judged as unfair or as lacking

the appropriate balance between the wrong and the causative effects, it will not be allowed to stand. All awards

are to be evaluated in the same manner…”

135. Whichever formulation is relied upon, it is clear that an award which bears no reasonable correlation to the defamation suffered

must be set aside as being disproportionate.

136. In this case, whilst I do not doubt the seriousness of labelling a person a drug dealer and, to a lesser but still significant extent,

a loan shark, nonetheless, in light of the evidence as a whole, and in particular the impact which the successful justification plea must

have given rise to, it is impossible to conclude that the figure could ever come within the permissible range of what a compensatory

award should be. It therefore bears no correspondence to the causative effects which the defamatory imputations have produced.

Outcome

137. For the reasons expressed in this judgment, I have reached the conclusion that the judgment of the Court of Appeal setting

aside the jury’s verdict on the drug dealing allegation, and imposing in lieu thereof its own determination on the matter, cannot stand.

Equally so with regards to the loan shark allegation. Therefore the liability findings of the jury remain intact. This view is shared by the

other members of this Court. That, however, leaves the jury’s failure to answer Question No. 2 on the issue paper, and the issue of

damages, which of course must be reassessed. The question which follows is how this is to be done.

138. In the normal course of events, I would at this point set out my view as to precisely how the case should proceed. Given my

belief in the pre-eminence of the jury’s role in this type of action, I instinctively would think that the damages issue should be

remitted for a retrial. However, I understand that the majority of the Court are of the opinion that further submissions should be

solicited from counsel on that issue. In Leech (No. 1), I expressed the view that although this Court would appear to have jurisdiction

to reassess damages in a defamation case, it had never done so to my knowledge, save for the majority decision in Leech itself. In

that case, my distinct preference was that a retrial should be ordered. In principle, I stand over that position.

139. However, given that the court intends to invite counsel to make further submissions on the appropriate course which should now

be adopted, I regard the observations previously made on this point as purely provisional and will await what is urged before

expressing a final view on this issue. The ultimate course to be adopted, however, must also have regard to the jury’s failure to

answer Question No. 2 on the issue paper and to the fact that this Court has refused to entertain an appeal from the decision of the

Court of Appeal on this issue.