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Witness afraid to testify in the Republic

A mother-of-five from Northern Ireland who told a court she saw a farmer being kicked and punched by four gardai is refusing to travel south of the Border to testify in an appeal brought by the Irish State.

Two years ago Fermanagh farmer Phillip Johnston was awarded €30,000 for assault and false imprisonment after a judge ruled that he had been dragged from his Jeep by gardai near the border at Blacklion, Cavan, on September 8, 2001.

A doctor and two independent witnesses, including the married mother-of-five, backed Mr Johnston's claim that he had been dragged from his vehicle and punched and kicked by four members of the Garda Siochana before being handcuffed and put into a patrol car.

In her ruling, which has now been appealed by the Irish State, Dublin Circuit Civil Court judge Jacqueline Linnane said the case attracted aggravated and exemplary damages and awarded Mr Johnston €30,000 damages and costs. The woman who described witnessing the alleged attack by gardai willingly gave evidence during the original civil trial against the Garda Commissioner and Minister for Justice.

But she now refuses to travel to give evidence in the "de novo" appeal -- where the case is heard as if no prior trial had been held -- following an alleged intimidation threat against her at her Co Fermanagh home.

The woman has complained to the Police Service of Northern Ireland that two men visited her home and threatened violence against her and her husband if she gave evidence in the forthcoming appeal.

After the alleged threat was reported to the PSNI, lawyers for the woman subsequently notified the gardai, Justice Minister and Attorney General requesting that her evidence be read into the record at the appeal, preventing the need for her to cross the Border.

Late last month lawyers acting for Mr Johnston of Drogan, Kiladeas, Irivinestown, told the High Court, sitting in Dublin, that the woman was "in fear" and had made an application for her evidence to be taken on commission in the North.

They want the case transferred to Northern Ireland for a day to allow the woman to give evidence under new EU laws that make it easier to take evidence in another member state.

Earlier this year, in an unprecedented move, the judge presiding over the Omagh civil trial travelled to Dublin to hear evidence from gardai who investigated the 1998 atrocity.

When Mr Justice Declan Morgan sat in the Four Courts last May, it marked the first time a British judge went to the Republic on judicial business.

If the application to take evidence on commission in the State's appeal succeeds, the Irish courts could set a similar precedent by allowing a judge to leave the jurisdiction to hear evidence in Northern Ireland.

Seven years ago the European Union adopted a regulation laying down procedural rules to make it easier to take evidence in a different member state.

The regulation, which came into force in Ireland four years ago, applies in civil and commercial cases and creates a new system of direct and rapid transmission and execution of requests for the performance of taking of evidence between courts.

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