The judge in the libel action taken by Mr De Rossa yesterday described the case as "one of the hardest-fought in the history of jurisprudence". In his closing address before the jury retired, Mr Justice Carney said it was no secret that this was round three of the case.
There had been a "massive barrage of publicity" and there was no point in trying to suppress this, he told the jury. At the outset he had adopted "the rather naive impression" that as they had been over the course three times this action could be run in the jury's presence and his role could be confined to that of figurehead. However, this position could not be maintained.
He told the jury that if they had been reading the "superbly written colour pieces in the Irish Independent" they would have seen that one day only 27 minutes of evidence was given in front of them.
He was giving them a direction in law that they could not take this into account against either party or speculate on who was responsible for them having been sent out.
In his charge to the jury of 11 women and one man, Mr Justice Carney said it was notorious that this had been "one of the hardest-fought cases in the history of jurisprudence". The parties were entitled in law to "play hardball" and the jury was not entitled to take into account the fact that they had done this. The jury's function was to decide the issues of fact. Their decision was "virtually immune from challenge, virtually unimpeachable", said the judge. The jury had been brought there at considerable expense and were not going to be reimbursed for their meals or travelling expenses, said the judge. Self-employed jurors would lose money and those who worked for others had a measure of protection under the Juries Act in relation to loss of earnings.
Referring to the massive barrage of publicity surrounding the case, the judge said there had never been less than eight reporters or commentators in the press bench. Obviously, there had been a great deal written and broadcast about the case but the jury should confine themselves to the evidence they had heard in court. If they had heard or read anything else they should put it out of their minds entirely. The case had been brought by Mr De Rossa, said the judge, and the onus of proving the case rested with him. Independent Newspapers did not have to prove anything. Criminal cases had to be proved "beyond reasonable doubt", but in a civil case such as this the standard was "on the balance of probability". The jury was being asked to consider two questions which were: 1) Do the words complained of mean: (a) that the plaintiff was involved in or tolerated serious crime; (b) that the plaintiff personally supported anti-semitism and violent Communist oppression. 2) If the answer to question 1 or any part thereof is "yes", assess damages.
The judge said the jury had a "Herculean task" and it would be "highly desirable" if they reached a unanimous verdict. However, a majority of nine would suffice provided the same nine agreed on all the questions.
Mr De Rossa's team had argued that the article was defamatory but Independent Newspaper said the case was brought on a wrong interpretation of the article. The jury would have to decide.
The judge told the jury that they would have to read the whole article from beginning to end to decide who was right.
Even though this was trial number three it should be treated as if it was trial number one, a self-contained trial.
Referring to the closing statements from both sides, the judge said Mr John MacMenamin SC, for the newspaper, had told the jury they were not saying Mr De Rossa was a crook and no reasonable person could draw that imputation from the article. This was a clear opening position but Mr Justice Carney said he was "slightly concerned" by something counsel said later on.
Counsel had said that Independent Newspapers did not say he was a crook and that "we accept his word". It was a matter for the jury to decide if "we accept his word" was a bit of a clawback, a bit of a retreat from what he said earlier.
Mr Sean Ryan SC, for Mr De Rossa, had told the jury in the course of his speech that they were wondering if they should apply for a mistrial. "That was a grossly improper thing to say to you," Mr Justice Carney told the jury. The only remedy for a person who had been wronged in a newspaper was damages. Citing a number of previous judgments, the judge recalled one involving an Evening Herald journalist and a politician. There had been an abortive putsch against the then Taoiseach, Mr Charles Haughey, and the journalist wrote an article saying that a politician had "tweaked his beard" in the jostling outside Leinster House.
A jury found that this was defamatory and directed that damages be assessed. If the jury compared the tweaking of a journalist's beard with the allegation that Mr De Rossa was involved in or tolerated serious crime, they would probably find that they were at opposite ends of the scale.
If damages were to be awarded in this case there would be no question but that they would be substantial. Mr Justice Carney said he was not allowed to suggest any figures to the jury and neither was counsel. He said that Mr De Rossa was at the time the leader of a political party which was seeking to go into government.
Yesterday was the 11th day of the action being taken by the Democratic Left leader over an article by Eamon Dunphy published in the Sunday Independent on December 13th, 1992.
The judge then read the evidence given by each of the witnesses, quoting from the transcripts of the trial. He gave the plaintiff's side quoting Mr De Rossa, Ms Liz McManus, Mr Pat Rabbitte. From the defence side he quoted Mr Dunphy, Mr James Nash, Mr William O'Brien, Mr Vladimir Bukovsky, and Detective Superintendent John Murray. He then turned to a matter of legal direction. He said Mr Ryan had said that what somebody said outside the court, what somebody else wrote a letter about or what somebody wrote in another article was not evidence. The judge said that was so.
He had a lot of documentation that he had not referred to. He had not even referred to the Moscow letter. He told the jury that just because they had it in front of them, it did not mean they were to take its contents as true.
He directed the jury that they should construe Eamon Dunphy's article as a whole. They should read the article from beginning to end in its totality and form a view.
On the basis of the view they formed, if they should answer question one in the negative then that was the end of the case. If they answered the questions in the affirmative then they should go on to assess damages.
Damages would be greater if they answered both questions in the affirmative. If they answered both questions in this way, then damages on anyone's view of the case should be substantial.