Alan Mahon, tribunal chairman.
The following is the statement made by the chairman of the planning tribunal, Mr Justice Alan Mahon, at the start of yesterday's hearing:
Good morning, Taoiseach.
Before commencing evidence today, we believe it appropriate to address a couple of matters in the hope that some of the more fractious exchanges yesterday might not recur today.
. . . While these few words are prompted by yesterday's proceedings they are . . . relevant and applicable to all witnesses.
A tribunal of inquiry is inquisitorial in nature and it approaches its work, and especially the taking of evidence in public, . . . on this basis.
It does not make allegations or promote any particular view or predetermine any matter. Evidence given at public hearings, including documentary evidence, can be true or false or be partly true and be partly false.
False or inaccurate evidence can be given accidentally or innocently or more seriously can be given intentionally and designed to mislead the inquiry.
It would be a useless and meaningless exercise for a tribunal to merely put every witness into the witness box and simply record his or her evidence without question, or where appropriate, without challenge.
While it is assumed that witnesses coming before the tribunal do so with the intention to co-operate and to give truthful and accurate evidence, the tribunal must be mindful of the possibility that this will not always be the case.
It is the role and duty of counsel to the tribunal to probe and test the evidence of witnesses and of documentary evidence in a manner which will ensure that the tribunal will have at the end of the day the fullest possible picture of the evidence, so that it will be in a position to determine the accuracy and effect of the evidence, especially in those circumstances where there is apparent conflict between the testimony of witnesses or with documentary evidence.
With this in mind, it is right and proper for counsel to, on occasion and where appropriate, put to a witness a version of events which is at variance with that put forward by that witness but which alternative version is or may be possible or probable, having regard to evidence given by that witness or other witnesses or which might appear from documentary evidence.
Equally, it is appropriate on occasion for counsel to the tribunal to suggest to a witness that his or her evidence is inaccurate, untruthful, unbelievable or in conflict with evidence already given by that witness or other witnesses or with documentary evidence, thus affording the opportunity to that witness to deal with any such suggestion or to otherwise clarify his or her position.
This at times necessary line of cross-examination does not mean that the tribunal has, in advance of taking evidence from a witness, formed any particular view of that witness or his or her evidence or has predetermined any issue or is not outcome neutral.
Every witness knows or should know that his or her evidence may be challenged at times vigorously by counsel to the tribunal and indeed by counsel representing other witnesses.
That is the nature of the public hearing phase of a tribunal.
From the witness' perspective, where he or she is so challenged in the course of giving evidence, there is a complete and unfettered freedom on the part of that witness to reject or deny any matter or suggestion put to him or to her.
It is hoped that where a witness is anxious to reject or deny any matter suggested to him or her by counsel to the tribunal or counsel for another witness or indeed by a member of the tribunal, that such rejection or denial would be given in the absence of rank or in a non-confrontational manner.
The cross-examination of a witness where there is a significant absence of supporting documentary evidence, which it has to be said is not in itself an indication of anything improper, is necessarily lengthy, complex and at times tedious.
Insofar as any of these descriptions might be deemed to apply to the cross-examination of the Taoiseach, the tribunal is satisfied that such detailed cross-examination is necessary and appropriate, if the tribunal is to be placed in a position where it can ultimately properly and fairly adjudicate on all the issues arising.
In no way is Mr Ahern being treated any differently to other witnesses in this regard.
All right.
Conor Maguire SC, for the Taoiseach: Chairman, if I might respond briefly to your remarks and I welcome first of all the concern that you expressed because it's concern that we certainly on behalf of the Taoiseach, very much got in relation to the way things are eventuating.
And I have to say that whilst the sentiments in respect of the propriety of cross-examination are appropriate, that's different from what happened here yesterday.