The Supreme Court dismissed Beverly Cooper-Flynn’s appeal, finding that although a draft bank letter was improperly admitted at her defamation trial, its use did not cause a substantial wrong or miscarriage that warranted a new trial.
In a judgment delivered on 28 April 2004, Fennelly J agreed with the Chief Justice on the other issues in the appeal and with Geoghegan J on the jury’s direction about majority voting. He wrote separately about a draft dated 30 July 1990, which the defendants had used in questioning Cooper-Flynn.
The draft, written by National Irish Bank investment manager Patrick Cooney, discussed advising clients with money invested offshore or “hot” money. The defendants sought to use it to show that Cooper-Flynn knew of a bank policy of helping clients evade tax. But there was no evidence she had received it. Cooper-Flynn denied receiving it, and Cooney later confirmed it had never been sent. The judge said the document should not have been shown to the jury on the basis that she knew its contents. He also concluded it was inadmissible as proof of a bank policy because it was an out-of-court statement offered for the truth of what it said.
The jury had received copies on the fourth day of the 29-day trial. On day 20, it emerged that the draft had never been sent to her. The trial judge then directed the jury to assess the earlier questioning in light of the fact that she had never received the document, and cautioned them against blaming her for what may have happened in the bank’s boardroom.
Fennelly J said the evidence about the draft was confined to two or three days and that the way its status emerged could have discredited the defendants rather than Cooper-Flynn. He also considered the other evidence heard by the jury, including testimony from four investors who said Cooper-Flynn had advised them about undeclared funds and offshore investments. She denied advising any investor to evade tax. The jury rejected the third defendant’s separate justification defence concerning his own dealings with her.
The Supreme Court held that the wrongly admitted draft, considered alongside the trial judge’s directions and the wider evidence, had no significant impact on the jury’s answer to the second question. It therefore declined to order a new trial and dismissed the appeal.