Former Taoiseach Mr Charles Haughey secured an order granting an adjournment, not a prohibition, of his trial on charges of obstructing the McCracken tribunal - and a Circuit Court judge had jurisdiction to grant that adjournment, the High Court was told yesterday.
Mr Eoin McGonigal SC, with Mr Paul Gardiner SC, for Mr Haughey, said the jurisdiction exercised by Circuit Court Judge Kevin Haugh in June, when he granted an order deferring the trial indefinitely, was a criminal jurisdiction similar to that exercised when Miss Justice Carroll heard an application to adjourn the trial of Catherine Nevin for murder.
Although Miss Justice Carroll reached a different conclusion to that reached by Judge Haugh and refused to adjourn the Nevin trial, both judges had jurisdiction to hear and decide the adjournment applications before them, Mr Haughey's counsel said.
Mr McGonigal was making submissions on the fourth day of the hearing before Miss Justice Carroll of the DPP's challenge to Judge Haugh's order of June 26th. The DPP has contended the Circuit Court judge had no jurisdiction to make the order.
Yesterday Mr McGonigal said Judge Haugh had concluded there was a real and substantial risk - due to adverse publicity, comments by the Tanaiste and the circulation of a leaflet - that Mr Haughey would not receive a fair trial. But this was not the same as a finding that a jury could not be empanelled to try Mr Haughey, counsel said.
Judge Haugh was assessing whether Mr Haughey had discharged the onus of proof upon him to satisfy the court there was a real and serious risk he would not get a fair trial. If Judge Haugh concluded Mr Haughey had discharged the onus of proof, the judge would be failing in his constitutional duty if he allowed the trial to proceed, counsel argued.
The kernel of the matter was whether an accused could get a fair trial at the time the adjournment application was made. Miss Justice Carroll had found Nevin could, Judge Haugh had found Mr Haughey could not.
The hearing resumes on Tuesday.