The taking of evidence from Mr Joseph Murphy snr is part of the proceedings of a tribunal and consequently "comes with a statutory requirement" to allow the public and the media access, counsel for The Irish Times submitted yesterday.
Mr Richard Nesbitt SC said the statutory requirement for access arose from the 1921 Tribunals of Inquiry Act. "I have to respectfully submit that what is taking place in Guernsey constitutes a proceeding of the tribunal, as that phrase appears in Section 2 of the 1921 Act", he said.
He submitted that, while concern about Mr Murphy's health was understandable, the presence of a small group of journalists would not greatly increase his difficulties.
"It can't be seriously suggested that to have a number of people who do no more than attend and take a note, being in the room and not being involved in the transaction can increase, with respect, the difficulties that may be attended upon giving evidence", Mr Nesbitt said. "Particularly as he [Mr Murphy snr] knows the evidence that he is going to give is going to be read back, by transcript form, in this tribunal."
Counsel said that the work of the tribunal had been hugely assisted by the "careful and concise reporting" of the media. "The people who will be there will be doing no more than listening quietly and conducting themselves as the members of the press have been doing throughout the tribunal; without complaint, without remark and without any need for restrictions to be put on them."
He continued: "Nowhere in the Rules of Court, or nowhere in any practice order I have been able to find, does it say that, where a court determines to hear evidence on commission, that means the public are not entitled to be allowed admission."
Mr Nesbitt said that there were only very limited conditions which prevented public access under the Act.
"As I understand it, the sole ground upon which Mr Joseph Murphy is to be examined, other than before this tribunal in this room, is that he is too infirm to travel here, and that doesn't, with respect, constitute a ground for departing from the clear statutory provision of Section 2", he continued.
"The legal position is that the public are entitled to access and, as you have noticed, our application is on behalf of Miss Christine Newman, as a member of the public as well as a journalist representing The Irish Times", Mr Nesbitt submitted.
He stated that every member of the Irish public could not be in the room, and this was another reason why the application was justified. "That is one of the reasons why an application by somebody such as my applicant is an application which could well achieve whatever appears to be behind the desire of the tribunal to reduce possible stress."
Mr Bill Shipsey SC, for RTE, said that the tribunal was not administering justice, but was inquiring into matters of urgent public importance.
Since it was, and could not be set up unless it was inquiring into a matter of urgent public importance, it was all the more important that the public, and the public in general and the press as the eyes and ears of the public, should be present at all of the proceedings of the tribunal.
Under the Act, the tribunal did not have the jurisdiction to refuse to allow the public, or any portion of the public, to be present.
He submitted that, with the greatest respect to the accuracy of the transcript service, transcripts did not disclose "eccentricity, the unusual or the apparently unfair", as quoted from a previous court judgment. The courts were very unwilling to interfere with the findings of fact which were based on the demeanour of a witness.
Mr Shane Murphy, counsel for Independent Newspapers Ltd, in his submission, said that the chairman had highlighted the fact that Mr Murphy's medical advisers had indicated that Mr Murphy was anxious about publicity. Mr Murphy would be cross-examined and therefore subject to the adversarial cut and thrust as a result of the presence of lawyers.
Mr Murphy asked if, as a compromise, the chairman might be prepared to accept the presence of a selected number of the media, directed by him.
The chairman said: "I am not getting involved in cherrypicking among the media."
Mr Colm O hOisin, counsel for TV3, also made a submission, and Mr David Kennedy, counsel for the Examiner, asked to be joined in the application.