Case commentaries

Published date01 October 2017
Date01 October 2017
AuthorJeremy Gans
Subject MatterCase Commentary
Case commentaries
Jeremy Gans
University of Melbourne, Australia
Cross-examination – Ireland
I suppose I’d better formally put i t to you that [the plaintiff] has dis puted the contents of a lot of the
interviews, you say they are your notes? They are my notes in my writing, yes, my Lord.
The above exchange concluded a defamation plaintiff’s cross-examination of one of nine Garda
witnesses who testified that the plaintiff admitted to loan sharking and knowledge of a drug importation
during police questioning relating to that importation. In September 1999, the defendant’s newspaper,
Sunday World, claimed that the plaintiff (referred to as ‘The Shark’) was ‘one of Ireland’s top drug
dealers’. The plaintiff, who was never charged, sued for defamation, but conceded during the trial that
the article correctly described him as a criminal and a tax cheat. At the 2014 trial, the jury rejected the
defendant’s defence of truth in relation to the claims that the plaintiff was a drug dealer and a loan shark,
awarding him 900,000 in damages.
In 2015, Ireland’s Court of Appeal held that the jury’s rejection of the defendant’s truth defence in
relation to drug dealing was perverse:
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 ...
In relation to loan sharking, it added:
[I]n view of the failure of the plaintiff effectively to challenge the evidence of Garda Doherty, the jury ought
to have been instructed that this evidence necessarily carried considerable weight. It might have been none-
theless open to a jury not to accept that evidence, but it would have to have had a rational basis for doing so.
The mere denial of the making of the statement by the plaintiff might possibly have sufficed for this purpose,
but here again the jury would have to have been instructed that, viewed objectively, the plaintiff’s credibility
had been heavily compromised. As no suc h instructions were given to the jury in th ese precise terms,
I consider that the verdict on this issue cannot be allowed to stand and there must be a re-trial on this issue.
When the plaintiff appealed these rulings to the Supreme Court, it ‘also certified a question as to the
present legal status in this State of the rule in Brown vDunne, in circumstances where little of the
Corresponding author:
Jeremy Gans, Melbourne Law School, University of Melbourne, 185 Pelham Street, Carlton, Melbourne, Victoria 3052, Australia.
The International Journalof
Evidence & Proof
2017, Vol. 21(4) 373–381
ªThe Author(s) 2017
Reprints and permissions:
DOI: 10.1177/1365712717727167

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