Ian Bailey case: Marie Farrell evidence derailed action

Credibility problem of star witness for damages action simply one hurdle too many

Marie Farrell: Despite some protestations to the contrary, Farrell was the principal witness in 2003 at Bailey’s libel action at Cork Circuit Court. Photograph: Collins

Marie Farrell: Despite some protestations to the contrary, Farrell was the principal witness in 2003 at Bailey’s libel action at Cork Circuit Court. Photograph: Collins

 

After 64 days of hearings over five months, the outcome of Ian Bailey’s action for damages against the State over the conduct of the Garda investigation into the murder of Sophie Toscan du Plantier rested heavily on the credibility of a single witness: Marie Farrell.

This was always likely to be the case, just as it was back in 2003 when the Schull shopkeeper and mother of five testified for seven newspaper publishers being sued by Bailey for linking him to the murder. On that occasion, Farrell squared up across the courtroom against Bailey. But in 2005, in Bailey’s memorable phrase to the High Court, she came “over to the side of the good” and testified on his behalf against the State and An Garda Síochána.

Despite some protestations to the contrary, Farrell was the star witness in 2003 at Bailey’s libel action at Cork Circuit Court. At that time Judge Patrick Moran accepted her evidence, on the balance of probabilities, that a man she had seen at Kealfadda Bridge in the early hours of December 23rd, 1996, was Bailey. This evidence was hugely significant because it contradicted Bailey’s assertion that he was at home at the time. The badly beaten body of Toscan du Plantier was found near her west Cork holiday home later that day.

But before looking at Farrell’s credibility or otherwise and the volte face she has performed since her evidence in 2003, it is perhaps instructive to examine why she was so central to the latest court action by Bailey.

As presiding judge, Mr Justice John Hedigan noted that she was the “the central plank” in Bailey’s case.

Mistreatment

Although Bailey alleged an elaborate conspiracy against him by gardaí from shortly after the murder, what he could actually assert of his own knowledge was rather limited – reduced in the main to allegations of mistreatment by a number of named gardaí, all of which were denied by the officers.

He alleged that Det Garda John Paul Culligan jabbed him in the ribs in an unmarked Garda car on the way to Bandon Garda station on February 10th, 1997, and that the late Det Sgt Liam Hogan told him he would “be found dead in a ditch with a bullet in the back of your head”.

He also alleged he was handed black and tan clothes in Bandon Garda station – a coded reference he felt to the fact he was English – and that another officer, whom he identified for the first time in this case as Det Sgt Mick Kelleher, shoved his crotch into his face while he was being interviewed.

Even when it came to his arch-nemesis, Det Supt Dermot Dwyer, the worst that Bailey could testify to was that he came to his house, availed of his hospitality and mince pies before departing with what Bailey implied was an ominous comment, denied in court by Det Supt Dwyer, that: “I’ll place you at Kealfadda Bridge.”

The situation was similar with regard to evidence from Bailey’s partner, Jules Thomas, supporting his action for damages. She made general accusations of a Garda conspiracy against her partner but most of what she could say from her own knowledge related mainly to allegations of mistreatment, such as Det Garda Mary Burbage telling her she was a disaster when it came to choosing men. All such allegations were also denied by gardaí.

Even Martin Graham, on the face of it a crucial and critical witness for Bailey, and one perhaps with even more dramatic claims of Garda wrongdoing than Farrell, would arguably have been of little benefit to Bailey if his evidence of wrongdoing had not been ruled statute barred but had gone to the jury for deliberation and they had believed him.

Graham accused Det Garda Jim Fitzgerald of criminal behaviour by giving him cannabis which was strongly denied by the detective. But if Graham’s allegation had gone before the jury, it is likely the State would have argued that if they believed cannabis was given to him by gardaí and, thus was indicative of Garda malice towards Bailey, it had no impact on the case against him.

Firstly, Graham did not come forward to gardaí until after Bailey’s first arrest on February 10th, 1997, and thus he had no role to play in that arrest. Subsequently, when gardaí began to suspect him of being “a double agent”, they excluded him from their file and his statements played no part in the grounds for Bailey’s second arrest on January 27th, 1998.

The jury in Bailey’s case was played a number of phone calls recorded in Bandon Garda station between investigating officers and between gardaí and Marie Farrell. Some of the content was redacted in advance by Mr Justice Hedigan and some recordings were not played at all. Although some, if not all, of what the jury heard revealed a highly disrespectful if not downright hostile attitude towards Bailey, referring to him in the most pejorative of terms, it is debatable that what has come into the public domain discloses more than that.

Even the conversation with arguably the most damaging comments (from the State’s point of view) between detectives Hogan and Fitzgerald, where Hogan refers to the need to chop a statement by Jules Thomas, ultimately came to nothing.

Fitzgerald suggested in evidence that Hogan was referring to the need to cut out an opinion in the statement by Det Garda Liam Leahy, regarding Thomas doing her best to remember something. But Leahy refused to change the statement.

The evidence of State solicitor for west Cork, Malachy Boohig, that he was approached by the late Det Chief Supt Seán Camon and asked to contact his former UCC classmate (and then minister for justice) John O’Donoghue to get him to ask the DPP to direct a charge against Bailey was indeed a shocking revelation. Boohig described it as “inappropriate” and “improper”.

Dermot Dwyer, who was at the meeting and whom Boohig said was present when Camon made the approach, told the court that he never heard his Garda colleague make any such remark.

As it happened, this allegation was ruled to be statute barred. But though it may have indicated Garda malice towards Bailey, if it had been presented to the jury it is likely the State would have contended that it was not acted upon by Boohig and Bailey — who was never charged — therefore suffered no damage as a result.

Coercion

Thus the case came to rest on Farrell and her dramatic assertion, first made to Bailey’s solicitor Frank Buttimer in 2005, that gardaí coerced or induced her into making a false statement identifying Bailey as the man she saw at Kealfadda Bridge.

The State went to great lengths in court to seek to play down her significance as a witness. The legal team of Luan Ó Braonain and Paul O’Higgins stressed in their cross-examination of both Bailey and Farrell how the courts have issued strict warnings about the dangers of convicting on uncorroborated identification evidence.

Nonetheless, her importance to the Garda case against Bailey was critical, perhaps best summed up by Jim Fitzgerald in one conversation when he told her she was the only person that “could put Bailey out of [his] house on the night of the murder”.

Essentially, Bailey’s case revolved around two aspects of Farrell’s evidence — the two conspiracy questions that were put to the jury by Mr Justice Hedigan for decision just after midday on Monday.

Firstly, that Fitzgerald, Garda Kevin Kelleher and Det Garda Jim Slattery conspired to take a false statement from her on February 14th, 1997, when she identified Bailey as the man that she had seen at Kealfadda Bridge, knowing it to be false.

The second issue for the jury was the allegation that the complaints made by Farrell throughout 1997 that she was being threatened by Bailey were made at the behest of Fitzgerald and that he conspired with Det Sgt Maurice Walsh, who took some of the statements.

Undoubtedly, Farrell’s version of her dealings with gardaí presented problems for the State. Many of these were highlighted by Bailey’s counsel Tom Creed in his summing up which he began by suggesting the case was not about “the credibility of Marie Farrell but of the gardaí”.

He pointed out the highly unusual manner in which Fitzgerald and Slattery compiled a memo on February 7th, 1997, of a meeting they had with her at Garda Kelleher’s home on January 28th, 1997, which they wrote in the first person singular rather than the more usual question and answer format. He suggested it was a pretence at a statement, but this was denied by gardaí. *

They said Farrell said she didn’t want any notes taken during the meeting when she identified Bailey as the man she saw at Kealfadda Bridge and she told the court the gardaí promised her she would never have to go to court and her husband would never know she was with another man that night.

Creed suggested to the jury that the reason they needed a statement from Farrell when they met her at Ballydehob Garda station on February 14th, 1997, was that they were under pressure because they had expected Bailey to have made admissions on his arrest on February 10th but he had not done so.

Farrell alleged in court that they had told her that all they wanted was “two lines of a statement” and that she signed blank pages for the two detectives and Garda Kelleher, and what they recorded her as saying about how she saw Bailey at the bridge was entirely false. This was denied by the officers.

Creed also highlighted another difficulty for the State where Sgt Frank Looney admitted he could not explain how Bailey’s name ended up on a questionnaire filled in with Farrell on January 17th. At that time, gardaí had not yet discovered that Farrell was “Fiona”, the then anonymous telephone caller who contacted Bandon Garda Station on January 11th, 1997, to report seeing a man at Kealfadda Bridge.

Creed also reminded the jury how Det Garda Fitzgerald had denied he was “a Jim will fix it” for Farrell and her family despite the jury hearing tapes of how he helped persuade another man, Brian O’Flynn, not to make a complaint of assault against Chris Farrell and how he sorted out a car issue for him.

Misled

Indeed, that appeared to be the approach taken by the gardaí in general and Fitzgerald in particular towards Farrell, even when they discovered that she misled them as to the identity of a mystery companion who was with her on the night at Kealfadda Bridge when she claimed to have seen Bailey.

Farrell told the court it was Fitzgerald who suggested she give the name of her companion as that of a dead man to the McNally review team (which re-examined the case in 2002). Fitzgerald denied this and asked would he really have gone to Longford and elsewhere to try and find out who she was with that night if he was aware her statement was a fabrication made up at his behest.

Fitzgerald denied he ever sorted out the issue of outstanding warrants or fines for motoring offences for the Farrells but, significantly, he made the point regarding dealing with a possible assault complaint against Chris Farrell that gardaí “had to look at the bigger picture”.

Perhaps one of the most telling comments about Farrell, after gardaí learned she had misled them about her mystery companion, came from Chief Supt Dermot Dwyer who said “even the biggest liar who ever walked tells the truth sometimes” and they were happy to believe her in relation to Bailey.

But if there were problems regarding some of the State’s version of events involving Farrell, there were equal if perhaps even greater problems attaching to Farrell’s version of events given in evidence on behalf of Bailey.

Firstly, she completely contradicted what she said in the 2003 libel action. The clear implication was that she either told lies to Judge Patrick Moran in Cork Circuit Court at that time or she was now telling lies to the jury and Mr Justice Hedigan at the High Court.

Farrell’s dramatic walkout from court on December 11th may have grabbed media headlines but what was more calamitous for her and Bailey was her return and what she said on re-entering the witness box under cross-examination by State counsel Paul O’Higgins.

O’Higgins had already highlighted multiple inconsistencies in Farrell’s version of what happened on the night of December 23rd, 1996, in various statements and testimonies to the original investigation team, the McAndrew Review, the McNally reviews, a Garda Ombudsman (GSOC) inquiry and now the High Court.

He focused on three aspects: where she said she made the February 14th, 1997 statement; what she said she signed on that occasion; and where she said she met her companion and where they travelled on the night.

She now denied ever making the February 14th, 1997 statement. But the statement recorded it was made in Ballydehob Garda station and it said that she met her friend in Schull and went with him in his car to Goleen before going on to Barleycove and eventually returning to Schull to pick up her car.

She told the McAndrew inquiry in 2006 that she never made any statement in Ballydehob but instead went to Schull Garda station where she signed four prepared pages of statements in which she said she met her friend in Schull and drove to Goleen in his car.

On March 7th, 2012, she told the Irish Mirror that she signed prepared statements after Bailey told Vincent Browne on his TV show that she had signed blank statements. But she later told GSOC in April 2012 she signed blank statements in Schull Garda station.

Farrell told the court that what she had said in the witness box — that she signed blank pages in Ballydehob Garda station and met her friend in Goleen not Schull (the first time she had ever mentioned either) — was the truth.

However, none of O’Higgins’s examination of the inconsistencies in what she had said had the impact of what happened when the defence played a video of an interview that Farrell had given to GSOC in 2012 as part of their investigation of a complaint by Bailey.

Farrell had earlier dismissed as false a statement she made in July 1997 that Bailey had come into her shop on June 28th, 1997, and shocked her by having details about where she had lived in London, her husband’s business address there and how she had defrauded the DSS. She now told the court that Bailey had only said he knew she was from Longford.

But the jury looked on with what appeared to be growing surprise as Farrell proceeded to explain in detail in the GSOC video that Bailey had produced her address in London, her husband’s business address, and suggested complaints had been made about her to the DSS.

Relaxed

Farrell appeared relaxed as she chatted with the GSOC investigators explaining that she had falsely claimed £27,000 from the DSS for income support and how they had to leave London in a hurry after her sister-in-law reported her for welfare fraud.

The video went on for over 10 minutes and when it finished O’Higgins asked Farrell if she was still saying that Bailey never mentioned anything about her London experiences when he came into her shop. She confirmed that was her evidence to the court. “The evidence I gave here is the truth. I think I am getting confused with fact and fiction . . . I don’t know how I got mixed up there but I am telling you what I said here is the truth,” she told the court.

Another piece of cross-examination by O’Higgins teasing out the impossibility of a claim by Farrell that the McNally review team in 2002 had threatened to frame her husband for the murder of Toscan du Plantier seemed almost superfluous after the GSOC tape drama.

Nor was the irony of the situation lost on the gardaí, given the often fraught relationship between An Garda Síochána and the Garda Ombudsman, with one retired officer observing: “Who would have thought that it would be GSOC that would come over the hill like the cavalry to save the poor old guards.”

Ultimately, Mr Justice Hedigan narrowed the questions to be answered by the jury to two central claims relating to alleged conspiracy by gardaí. He did so after an application by the State, 62 days into the case, to withdraw all of it from the jury on grounds that it was statute barred, meaning it was brought outside the applicable six-year legal time limit.

In the end, no one can be sure what fatally holed Bailey’s case in the jury’s eyes. But given the centrality of Farrell’s evidence on his behalf, and the testimony that contradicted other evidence and statements she gave, it seems reasonable to conclude that the jury found her a less than credible witness.

The final indignity — and perhaps more than that — for Farrell came when Mr Justice Hedigan announced he was referring a transcript of her evidence to the DPP and it would be for the DPP to decide if there are to be any further consequences for her over her testimony to the High Court.

* This article was edited on April 1st, 2015