The case of Mr Albert Reynolds was coherently put in the summing up by the libel trial judge and was a complete and coherent statement, the lawyer for the Sun- day Times contended yesterday.
The opening by Mr James Price QC, for the newspaper, opposing Mr Reynolds's appeal was marked by comments and statements by Lord Justice Hirst.
At one point, the Lord Justice said: "The [trial] judge's job, surely, is to make sure the jury sees the wood for the trees and to mark the right trees, and he starts off marking the wrong trees. That's what worries me."
Mr James Price QC said it was his submission that: "Mr Reynolds's case was coherently put in a coherent block to the jury." He told the three judges that this was not a model summing up by the judge. One ground of appeal by Mr Reynolds was that it was a complex case but he would submit that it was in fact a simple one, he said.
Lord Justice Hirst said asking was this man a liar or not was a very simple case but in order to get there, there was a very complex story as to who knew what and when over a very fast few days.
Mr Price said there was a long gap between the start of the summing up and the retirement of the jury. The jury then returned to ask if they could have Mr Reynolds's evidence of what he said in his speech to the Dail on the Tuesday. The judge gave this. When one actually looked at the case the issues were simple. "If you're right, the judge was wrong in over-complicating the case and got it wrong in the process," Lord Justice Hirst commented. Mr Price said that the judge made a mistake in referring to fair comment when that defence had been withdrawn. It would have been a different matter if the jury were led up the garden path but they were not.
Lord Justice Hirst said that if that was the only misdirection, he would not be too worried but it did start off muddying the waters a bit.
Counsel said there was no reason to think the jury was stupid and they did not have any problem asking questions. The trial judge had made the mistake about fair comment twice.
Lord Justice Hirst said it did seem to set in train a pattern of confusion that may have left the jury uncertain.
Taking another ground contended by Mr Reynolds that the judge looked at the wrong issue when discussing what he knew on the Monday before he made a statement to the Dail on the Tuesday, Mr Price submitted that it was not a mis-statement of the issue.
The way the judge put it was - did Mr Reynolds know on the Monday there had been a case relevant to the Smyth case? - that was the issue.
Lord Justice Hirst commented that he would have thought that, given what everyone knew about the Monday, the question was: that with that knowledge what should Mr Reynolds have done about it and what did he do about it. He said it was steering the jury off course almost straight away.
Mr Price will continue his submissions today.