Tribunal suppressed evidence

Astonishing revelations are contained in the judgment of Adrian Hardiman of the Supreme Court in the appeal on judicial review taken by Owen O'Callaghan, the Cork developer, and his solicitor, John Dean, against the planning tribunal.

The revelations concern the most extraordinary allegations made by another developer, Tom Gilmartin, about the manner in which the planning tribunal has conducted itself.

In all that follows here, I am relying on the judgment of Hardiman, a meticulously forensic judgment, brilliantly drawing together the facts of the case and their significance.

The most astounding of the revelations is that at one stage in his dealings with the tribunal, Gilmartin alleged that - in the words of Hardiman - "the demise of a deceased office holder was brought about indirectly by Owen O'Callaghan". I understand the deceased office holder in question was the late Hugh Coveney, the former Fine Gael minister, who fell off a cliff in west Cork on March 14th, 1998.

According to Hardiman's judgment, Gilmartin also alleged to the tribunal that O'Callaghan had "connived at the appointment of an important public servant to a position of significance in his own interest; that three well-known persons received bribes from Mr O'Callaghan and that these were lodged into offshore accounts in various named places; and that a named solicitor and other named parties were instrumental in seeking the resignation of another holder of public office in return for a large money payment".

The tribunal had withheld this from O'Callaghan and Dean, material surely relevant to the credibility of Gilmartin as a witness in the investigation into allegations of corruption made by Gilmartin against O'Callaghan and Dean.

One of the allegations made by Gilmartin was that a copy of an agreement which he (Gilmartin) had entered into with O'Callaghan on January 21st, 1989, had been falsified by O'Callaghan and his solicitor, John Dean. This was a serious allegation of criminal fraud, involving a solicitor. And yet when Gilmartin first told anybody about this - it was to his then solicitor, Noel Smyth - he gave a very different account, claiming that it was his own solicitor who had made a mistake.

And yet, instead of the tribunal making O'Callaghan and Dean aware of this significant discrepancy in Gilmartin's accounts of what had occurred, it suppressed the information made available to Smyth.

Hardiman said: "I cannot understand how, having permitted this grave allegation - of criminal fraud and forgery - to be publicly made, it did not disclose the prior inconsistent statements of which it was affirmatively aware."

But not alone that, when Gilmartin said publicly he had previously informed the tribunal of this alleged "forgery", the tribunal did not refute that, even though it knew, (a) he had not made this allegation previously to the tribunal and, (b) the tribunal knew of the previously inconsistent statement.

Gilmartin said at the tribunal that he was with a named councillor in the bar at Buswell's Hotel on December 28th, 1988, and that the councillor requested IR£100,000 from him. According to Gilmartin, O'Callaghan was nearby and later he (O'Callaghan) asked him (Gilmartin), "did he tap you?".

But when he first told the tribunal about this incident, he made no mention of a demand for IR£100,000 or of the supposed questionable remark of O'Callaghan. And yet when Gilmartin made the damning allegation at a public sitting of the tribunal, nobody intervened to say he had given an inconsistent account of the incident privately.

The most memorable allegation of Gilmartin concerned a visit he made to Leinster House in 1989 when he met several Fianna Fáil ministers, including the then taoiseach, Charles Haughey. According to Gilmartin, immediately after he left that meeting he was approached by an unidentified man who asked him to lodge a payment of IR£5 million to a bank account in the Isle of Man.

But it emerged that when Gilmartin first made this allegation in private to the tribunal, he tied O'Callaghan into the incident. He said he saw O'Callaghan talking to Albert Reynolds in an alcove and that he had remarked to O'Callaghan that he (Gilmartin) was fed up with him and his gangster friends.

O'Callaghan allegedly responded that neither he (Gilmartin) nor any unionist would put a foot in Quarryvale.

And yet the tribunal suppressed this account, which was inconsistent with the account Gilmartin gave in public.

Anybody interested in looking further into this should read Adrian Hardiman's judgment, available on www.courts.ie.

The judgment, incidentally, was a minority one. The other four judges of the Supreme Court found there was no inherent bias in the tribunal's conduct and allowed the Quarryvale investigation to continue.