LIBEL/DAMAGES TRIAL SESSION 21 January 2015 - Judge ruling

Mimi wrote:Does the Judge realise that it has never been proved that the McCanns are innocent.  I think Judge Tugendhat said something along these lines during TB`s trial.

It seems this Judge is proceeding on the assumption that the McCanns version of Maddie`s disappearance is true and that they had nothing to do with her disappearance.  This has never been proved.

I don`t see how any conclusions can be made until a court decides what actually happened to Maddie.

Russian Doll wrote:

Mimi wrote:Does the Judge realise that it has never been proved that the McCanns are innocent.  I think Judge Tugendhat said something along these lines during TB`s trial.

It seems this Judge is proceeding on the assumption that the McCanns version of Maddie`s disappearance is true and that they had nothing to do with her disappearance.  This has never been proved.

I don`t see how any conclusions can be made until a court decides what actually happened to Maddie.

I disagree.

Afaik the judge must accept that until there is evidence to the contrary, the McCanns in law are presumed not to have been involved in their daughter's disappearance. The law presumes innocence until guilt is established beyond a reasonable doubt in a court of law. It is not up to the Mcs to prove their innocence, but to a prosecuting lawyer to prove their guilt.

The issue here is not criminality, but whether the McCanns claims for damages have been proven, regarding the negative effects on them in varied respects caused by the book written by GA. Was his book the catalyst for harm, did it exacerbate any pre-existing harm or was there no harm at all caused?
It is common sense to say that they were distressed prior to the book's publication, because of events in Portugal. They must also have been distressed when made arguidos, that distress could have been due to guilt or innocence of course. Did GA's book do any more to harm them and the search? One could argue yes, because GA was producing the thesis that was shelved due to lack of evidence of criminality by the pair, but the judge seems to have concluded on another point that the writing was a factual account of the files and investigation . Maybe the points raised should be put in context along with others. She has decided that they have not proved that they suffer the distress that their [weak imo] witnesses spoke about. It seems she is saying that it is impossible to establish where the distress caused by the disappearance ends and that caused by GA's book starts. She has dismissed reputational damage, fear and a host of other claims. The McCann witnesses did not help their case here, being partial and personally involved with the couple.

Is it this giving you cause for concern?

The judge states that it is not possible to determine what most people who have read or seen Mr Amaral's thesis actually think.
She adds that the plaintiffs failed to prove shame, even with Kate stating it was not shame that she felt.

The judge once more believes it is expectable that the plaintiffs would feel badly about being considered to be responsible for hiding the body and staging an abduction - not, the judge stresses, about being responsible for their daughter's death, as is commonly, and mistakenly, believed.
 


The fact is that the PJ did not close their investigation, the search was undamaged and that their arguido status was dropped and as far as we know they are still not suspects at the moment... so GA's book seems not to have had the effects on them or the search which have been claimed.
Her use of the word mistaken does not mean that she believes the McCanns version of events over the thesis of a staged abduction. She is distancing Amaral from the idea that the Mcs were responsible for Maddie's death, because that is a common theory for some researching the case, but Amaral is not responsible for that, His thesis was an accident, concealed by the couple by staging an abduction, which is in the files as part of the process.

* * * * * * * * * * * * * * * * * * *

Thanks Russiandoll for making that clearer.  I was in two minds as to the word "mistakenly" in that sentence and how to interpret it, but you've made it crystal clear now.  Phew![/quote]

Ixta wrote:What happened to the requirement to prove they could represent Madeleine in court as she is a ward of court? Or is that also not proved?

This report was written and authorised by Anne Guedes to be hosted by Pamalam

Original Source: Anne Guedes

In a civil court, the facts that were gathered and considered as evidence by the judge, within the limits fixed for a trial, are normally not publicised, whereas in a penal court they have to be stated publicly.

This morning's session, which was no hearing, happened to be open to the public (reduced to 3 persons, me included, no journalist) just because, due the restructure of the juridical system that occurred end of August, the judge Maria Emília de Melo e Castro has been nominated to another section and doesn't belong to this civil court anymore, having therefore no office in the Tribunal Civil de Lisboa. So she needed a court room to release to the lawyers the document she elaborated.

Only four lawyers were present :

For the claimants, Dr Ricardo Afonso (representing Dra Isabel Duarte)

For the defence, Dr Miguel Cruz Rodrigues, Dra Fatima de Oliveira Esteves, Dr Henrique Costa Pinto. Dr Miguel Coroadinha (TVI) was absent.



The Judge asked the lawyers to read the document in case they needed clarification on some points or had any objection, suggesting it wasn't definitive. In fact it is on this document that the lawyers who solicited it at the last hearing (all of them) will build their "allegations of law", i.e indicate how they would interpret the law on these topics. The judge left the court room, leaving the lawyers at their reading.

And so it happened.

A quarter of an hour later, the judge entered the room (through the witnesses', clerk's and lawyers' entrance and not through the judge's special entrance) and asked for observations.

The only lawyer who intervened was Dr Henrique Costa Pinto (Valentim de Carvalho Multimedia).


He found some contradiction concerning the green light given for the DVD’s production. He underlined that he was mentioning this issue informally. The judge explained that she took various sources into account and that commercializing is one thing and selling another. Therefore she thought it wasn't contradictory, but admitted that without the context it might let one think it was.


The other issue was related to the WOC issue. From this day on, the claimants have 30 days to hand over the London Court's authorization to have Madeleine McCann represented by her parents in this trial. Meanwhile the trial is suspended. After the 30 days delay, which of course can happen to be shorter, the lawyers will have ten days to hand in their "allegations of law".




When the judge left the room after distributing the document to the lawyers, as if the benches for the public were empty, looking literally through the three members of the public, I entered the “sacred” area and asked the clerk if I could read the document. The clerk looked embarrassed, hesitated but then said “no”, adding, as a justification, that it was “informal”.
As there was no journalist neither in the court room nor outside (only photographers expecting the McCanns like Vladimir and Estragon wait for Godot), as none of the defense lawyers would have misled the Press Agency Lusa to their disadvantage, the reader will need no hypothetico-deductive method to find out who grossly disinformed an institution that still plays a decisive part in the international circulation of the news.



This note is obviously my last contribution to the trial reports, as the sentence will be notified to each lawyer by mail.

Analyzing the terms of the sentence is another chapter.