A Circuit Court judge will decide on Monday whether the former Taoiseach, Mr Charles Haughey, will face trial on charges of obstructing the McCracken tribunal. Judge Kevin Haugh said that he would consider whether pre-trial publicity prevented Mr Haughey from getting a fair trial.
Earlier, Mr Maurice Gaffney SC, counsel for the Director of Public Prosecutions, remarked that if the trial went ahead it would not be like European championship football and the DPP was not trying to "score goals" against Mr Haughey.
Mr Gaffney said the DPP merely wanted to present the evidence to the jury and was "not even trying to get a draw" against Mr Haughey. He was speaking on the third day of an application by Mr Haughey to stop the trial.
Mr Haughey alleges he cannot get a fair trial because of media comment, statements by the Tanaiste, Ms Harney, and a leaflet distributed in Dublin.
Judge Haugh said he would deliver his ruling some time after 2p.m. on Monday. Last December Judge Haugh turned down a similar application after a six-day hearing.
Mr Eoin McGonigal SC, defending, said the adverse publicity had continued since December, and Mr Haughey's constitutional right to a fair trial had been infringed.
Mr Gaffney rejected Mr McGonigal's claim and said that an Irish jury could be relied upon to give a fair assessment of the facts. He said that if potential jurors felt that they could not hear the case fairly, they were obliged to tell the court.
There was "a minute risk" that a jury member would not declare any prejudice that he or she held against Mr Haughey.
He added that he could not think of an example in literature where such a scenario had been devised.
Judge Haugh recalled a book by the American novelist, John Grisham, in which a prejudiced person was sworn on to a jury in a trial of a tobacco company. Mr Gaffney said he could think of no Irish example of such a scenario.
He said that the jurors would be frequently warned by the trial judge that they had to consider the case on the facts before the court. This would create a "high and impregnable wall" which would block any prejudice from the jurors' minds.
He said that some jurors might come to court having heard comments by Ms Harney or having read newspaper articles about Mr Haughey. However, a "new wind will blow" when they were presented with the facts in a criminal trial. Mr Gaffney added that any jury member who did not carry out his or her role impartially would be guilty of a very serious offence.
Turning to points raised by Mr McGonigal, he said the Tanaiste's comments that Mr Haughey should be jailed would not adversely affect his right to a fair trial.
Irish people knew that courts, not politicians, administered justice. He said Ms Harney's secretary had written to Mr Haughey's legal advisers clarifying her comments.
Judge Haugh said that jurors might feel that Ms Harney knew more than other citizens because of her Department's investigations into people connected to Mr Haughey.
Mr Gaffney said that it was a big jump to make between the investigations and the trial because the jurors could consider only the evidence before them. He recognised that there had also been considerable adverse media comment about Mr Haughey since last December.
Some of this amounted to "vulgar abuse" but most was far less serious than the media comment presented to the court by Mr Haughey's barristers at last December's application.
The most serious media comment now before the court was a statement made by John Bowman on the RTE television programme, Questions and Answers, in which he said that Mr Haughey had admitted to obstructing the McCracken tribunal. Mr Gaffney said that potential jurors would have to hear this comment and be influenced by it.
Even then, there were numerous safeguards to ensure that a jury did not consider outside influences.
Referring to the protest march leaflet distributed in Dublin, Mr Gaffney said that those involved had a right to freedom of expression and a right to free assembly.
The DPP could not act against them and any potential juror unduly influenced by them would not have the right to consider the evidence in the trial.