Evidence which the former minister for foreign affairs, Mr Ray Burke, was to give the Flood tribunal was postponed yesterday, after legal argument about how far his evidence and cross-examination should go.
Mr Burke arrived at the tribunal at 11.09 a.m., looking healthy and relaxed. During a short break immediately before he was scheduled to give evidence, he moved his files into position near the witness-box and at one stage sat in the box and adjusted the microphone to his comfort.
However, at 12.05 p.m. as the tribunal called Mr Burke, Mr Colm Allen SC, for Michael and Thomas Bailey and their company Bovale Developments, intervened to say his clients were not aware of the extent of Mr Burke's evidence. They were entitled to know the substance of any accusations against them.
He also complained that the planning history of the former Murphy group lands at Forest Road, Swords, Co Dublin, which had been bought by Bovale Developments in 1988, had not been read into the record.
In exchanges with the tribunal senior counsel, Mr John Gallagher, Mr Allen said: "We do not know on the 66th day of the public sittings of the tribunal whether or not any allegation is being made that any of the lands referred to in the terms of reference were corruptly or improperly rezoned by any party to these proceedings."
Mr Allen's intervention was followed by Mr Burke's counsel, Mr Joseph Finnegan SC, who said he had a concern about the "nature and scope of the examination of Mr Burke in the documents flagged to me".
Mr Finnegan said his concern stemmed from the fact that the documents indicated the examination would "would go very far outside matters which, as I understand it, are the concern of the tribunal at this time".
He continued: "Mr Burke should be confined to these allegations which affect him in evidence given by Mr Gogarty and the other evidence which was either corroborative of that evidence or otherwise related to it, and I say that purely as a matter of ensuring that fair procedures are applied here."
Mr Finnegan gave an example of the type of questioning to which he objected. He mentioned an internal bank memorandum initialled in an indecipherable manner. "It is a record of an interview by this person with a manager, and what he says is `Let's go to regional and set up a story'."
Mr Finnegan said the document contained personal details about Mr Burke and was in effect saying "Let's tell lies". Mr Burke should not face cross-examination on that type of material, and in fairness, it would be best to restrict questioning of Mr Burke at this stage and "not ask him to deal with accusations which he has not had the opportunity to test".
In response to both parties, Mr John Gallagher SC said: "There has to be a start in every tribunal."
Dealing first with the issue of documentation, he said the documents Mr Finnegan had referred to would arise in context. No person was being accused at the tribunal; the purpose was simply to establish facts. "Nobody will be found guilty, there is no accused. Mr Burke is not accused. Mr Bailey is not accused." They were persons who had been named or had been involved in the evidence of Mr Gogarty, where he had made certain allegations which gave rise in due course to the setting up of the tribunal.
Mr Gallagher also objected to Mr Allen's initial remarks, claiming that he appeared to be "making a speech from a prearranged, a pre-prepared text". He said that Mr Allen had every reason to know the area on which Mr Burke would be giving his evidence.
"Now Mr Allen, if he has an application to make, should make it without reading a detailed account of the history of what did or did not happen. And he should allow this witness to proceed with his evidence as quickly as possible." Mr Allen insisted he had not been furnished with the necessary documentation covering Mr Burke's examination by the tribunal to allow his team to know the substance of any allegations which might arise against his clients. Other parties to the tribunal had been furnished with such documentation. Acknowledging that Mr Allen's solicitors had not received their copies of the documents as early as some other parties, Mr Justice Flood said it was well known "that Homer can nod".
To this Mr Allen responded: "I hope you are not calling Mr Gallagher Homer, sir. Simpson springs to mind."
On being invited by Mr Justice Flood to apologise, Mr Allen said: "I apologise both to Mr Gallagher and to Mr Simpson, sir." He later apologised again, saying he wanted to apologise to Mr Gallagher fully.
Mr Justice Flood ruled that the matter of fairness to all parties was important and one on which he took submissions very seriously. He would consider the matter overnight and would sit again at 10.30 a.m. today when he might or might not have reached a decision.
