The Irish mixed martial arts fighter’s lawyers are instead arguing that the jury heard an inadmissible line of questioning about his co-operation with gardai into their investigation of an incident at a south Dublin hotel in December 2018.
Former hairdresser Nikita Hand, 35, successfully sued McGregor over the matter in which he was alleged to have “brutally raped and battered” her in a penthouse at the Beacon Hotel.
During a three-week case at the High Court in Dublin last November, McGregor told the court he had consensual sex with Ms Hand.
After six hours and 10 minutes of deliberating, the jury of eight women and four men found McGregor civilly liable for assault.
Ms Hand, also known as Nikita Ni Laimhin, was awarded 248,603.60 euro (about £206,000) in damages.
She lost her case against another man, James Lawrence, who she accused of assaulting her by allegedly having sex without her consent at the same hotel.
McGregor was ordered by a judge to pay Ms Hand 100,000 euro (£85,000) of the damages and 200,000 euro (£170,000) of an expected 1.3 million euro (£1.1 million) in legal costs before the appeal.
He has since sought an appeal which was initially expected to include new evidence.
On Tuesday, the Court of Appeal in Dublin heard that McGregor would no longer be relying on additional evidence that had not been given to the initial trial for his appeal.
That evidence was reported to relate to two neighbours of Ms Hand who had alleged they had seen her be assaulted by a former partner.
However, McGregor’s legal team said that after receiving new applications relating to the evidence to be given by pathologist Professor Jack Crane, they could no longer sustain that ground of appeal.
John Gordon, SC, for Ms Hand, said it was “frankly not appropriate” for the ground to be withdrawn on that basis, adding he had only been told of the development 10 minutes earlier.
He objected to the withdrawal of the ground and argued he should still be allowed to cross-examine the neighbours.
He said his client had been “put through the wringer yet again” and that the court should not permit the appellant to “waltz in here and then they can walk away from this”.
Mr Gordon said there could potentially be matters relating to perjury arising out of the developments.
Ms Justice Isobel Kennedy, alongside Mr Justice Brian O’Moore and Mr Justice Patrick MacGrath, questioned how further submissions relating to Prof Crane could lead to the withdrawal of the appeal matter on the neighbours’ evidence.
Mark Mulholland KC, for McGregor, said he was applying to withdraw the matter on a “holistic view” of the whole case and after taking instructions.
The court heard it was “unsatisfactory” that the development was being brought to the court at a late stage, but Ms Justice Kennedy permitted the withdrawing of the ground.
Following the withdrawal of that application, Remy Farrell, SC, also for McGregor, advanced the remaining four grounds of the appeal – largely relating to the right to silence and “no comment” answers to questions during garda interviews.
He raised the issue of the cross-examination of McGregor during the original trial by Mr Gordon.
He said an “enormous amount of no comment material” had been entered into the hearings to no actual proper end.
Mr Farrell said that Mr Gordon had raised more than 100 “no comment” answers given by McGregor while being interviewed by gardai on the basis that it related to a position put forward by the fighter that he had been fully co-operative with gardai.
Mr Farrell said this was allowed to proceed by the trial judge, with Mr Justice Alexander Owens telling Mr Gordon multiple times to get to that specific purpose of that line of questioning.
However, putting forward the appeal, McGregor’s counsel said this did not occur – and was in itself based on an “entirely incorrect” paraphrasing of what the appellant had actually said.
Mr Farrell said his client had said that he had made a comment about wanting to “show everything” and “get everything correct” in seeking out the “best advice” from his solicitors – rather than saying he had been fully co-operative with gardai.
He said it was “manifestly wrong” and “blatantly incorrect” for Mr Justice Owens to tell the jury the questioning was allowed as McGregor had raised his status as someone trying to sort out matters with the guards as best he can.
Mr Farrell argued that the line of questioning was “wholly impermissible” and was inviting someone to draw an inference that there was “no smoke without fire” when invoking the right to silence.
McGregor’s counsel said the judge appeared to have “somewhat lost control of the issue” and instead later told the jury during the charge that it could still be allowed for the different purpose of understanding background material to McGregor’s answers and understanding the sequence of interviews and statements.
Mr Farrell said there had been “various vague circling” around a suggestion of whether McGregor had been co-operative or not, but it had at no point been put to him that he had been untruthful in his answers.
He said the handling of the no-comment answers meant a retrial may be appropriate.
Ray Boland SC, for Ms Hand, said it was clear from a holistic consideration of McGregor’s evidence that he was putting forward that he wanted to be as co-operative as possible with the investigation.
He argued that it was ambiguous and possible to interpret an answer that he wanted to “show everything” that this related to gardai rather than to solicitors, and that it was “obvious” that Mr Gordon had cross-examined him about his co-operation with the investigation.
He argued, therefore, that while the judge may have got some of the details wrong, it was appropriate for the line of questioning on the no-comment answers to be admissible.
For example, he said his lack of co-operation was evidenced by how he had not handed over his phone while Ms Hand had done so.
He reiterated that the judge had made it abundantly clear the jury could not draw adverse inferences from the no-comment answers.
He said Mr McGregor had expressed a want to put every shred of evidence before the court.
However, he said McGregor had only been “middling co-operative” rather than fully co-operative with gardai.
He said the purpose of the questioning had been followed through on, even if it was subtle or inferential.
A small group of supporters stood outside the court on Tuesday morning with a banner reading ‘We stand with Nikita Hand’, including Socialist Party TD Ruth Coppinger and campaigner Natasha O’Brien.
Ms O’Brien was among some of the crowd to enter the court to express well wishes to Ms Hand.
The proceedings, including Mr Lawrence’s appeal against a decision not to be awarded costs, continue on Wednesday.
