Media organisations suggested a compromise in their legal wrangle with the Flood tribunal that would see Mr Joseph Murphy snr's evidence relayed by video-link to a separate room for the press.
The provision of the video-link would cost the tribunal nothing, as the expense would be borne by RTE and Independent Newspapers, Mr Bill Shipsey SC, for the two organisations, told the tribunal in Guernsey yesterday.
Mr Shipsey said the proposal had the support of The Irish Times, which would withdraw its opposition to the tribunal's decision to exclude the press if the proposal was accepted. In the High Court last week, The Irish Times and RTE successfully challenged Mr Justice Flood's intention to hear Mr Murphy's evidence in private.
Opposing Mr Justice Flood's intention to set up a commission to hear Mr Murphy's evidence, Mr Shipsey said the chairman had reached his conclusion in the absence of the media organisations which had opposed the tribunal's original order.
There was a legal and constitutional requirement on the chairman to act in a proportionate manner. "If you accede to Mr Murphy's requirement that his evidence be taken in private, you are ignoring the constitutionally protected rights of the press. In addition, you are not demonstrating any attempt at a proportionate response to ensure these rights are not trammelled to the least extent possible."
Mr Shipsey said the chairman was now proposing to make the same order as he made last week and for the same reasons, in spite of the High Court judgment. If he decided to proceed without any reference to the court's ruling, he ran the risk of bringing the tribunal into disrepute.
The evidence given by Mr Murphy's doctor, Dr John Curran, had not been tested by the parties most affected. It had been given without notice and no medical reports had been produced. No attempt had been made to obtain an independent medical report on Mr Murphy's condition, as might have been expected. All this was a denial of fair procedures for his client, Mr Shipsey said.
Mr Des O'Neill SC, for the tribunal, opposed Mr Shipsey's submission. There had been a comprehensive cross-examination of Dr Curran by Mr James Gogarty's lawyers and there was no requirement that outside parties should have the right to cross-examine even if they were present.
Mr Murphy enjoyed constitutional rights to the protection of his good name, and the chairman had a positive obligation to protect these rights.
In the circumstances, it would be unreasonable for the chairman to oblige Mr Murphy to risk serious injury or death by giving evidence in public. If it did so, the tribunal would be acting in an unconstitutional manner and without regard for the good name and physical integrity of Mr Murphy.
Regarding the video-link proposal, Mr O'Neill said there was no "half-way house" provided for in the law relating to the setting up of commission to take evidence.
Mr Frank Callanan SC, for Mr Gogarty, supported Mr Shipsey's submission and suggested a videolink would resolve the "unfortunate impasse".
Mr Garrett Cooney SC, for Mr Murphy, said it was an extraordinary proposition that the media should claim the right to cross-examine a witness in any proceedings at which they were present. This was a "mind-boggling claim". He opposed the proposal.
Earlier, two doctors told a public sitting of the Flood tribunal that Mr Murphy's focus and anxiety about the media being present to hear his evidence was irrational.
Consultant psychiatrist Dr Ronnie Vincent Browne said Mr Murphy was a very private individual who was deeply concerned about the presence of the media. "This is irrespective of whether the media are in the room or whether they are there by proxy in any other form," he said.
Dr Browne said the anxiety caused would proportionately invalidate the evidence that Mr Murphy might give and be compromised. It would affect his ability to concentrate and the ability to answer questions.
Cross-examined by Mr Brian O'Moore SC, for Mr Gogarty, Dr Browne said he had examined Mr Murphy that afternoon at the request of his medical practitioner, Dr John Curran.
Dr Browne said he did understand that it was important and relevant to assess the effect on Mr Murphy of the media being present. Asked whether there would be the same level of anxiety if a transcript was published, Dr Browne said it would be to a lesser degree.
Asked what it was about the media that Mr Murphy found stressful, he replied that he thought it was the invasiveness, and the awareness of the presence of the media. Mr O'Moore asked if Dr Browne considered Mr Murphy's concern irrational. He replied: "Irrational to the extent that it was disproportionate and intense, in that sense, yes."
Earlier, Dr Curran said he had tried to ask Mr Murphy what had frightened him about the media. "He was quite vague and had a focus which I thought was irrational," he said.
Mr Murphy's concern was that the media would be watching him while he was giving evidence. Asked if Mr Murphy had understood what he explained about the video link, Dr Curran replied: "Mr Murphy was very vague and didn't seem to take on board exactly what I was saying."