Gogarty not shying from cross-examination, says counsel

Mr James Gogarty had been repeatedly called a liar and a person who committed perjury and the person solely responsible for "devising, setting up and implementing a scheme to make payment to Mr Burke", Mr Gogarty's counsel, Mr Frank Callanan, told the Flood tribunal yesterday.

Saying that his client's good name was at stake, Mr Callanan said submissions from Mr Burke, Mr Michael Bailey, and the Murphy family were "manifestly inadequate". He said it had been "asserted at this stage, expressly on behalf of JMSE" that Mr Gogarty was responsible for the scheme to make a payment to Mr Burke in an effort to ultimately secure planning permission for the lands.

Mr Callanan said counsel for Bovale Developments, Mr Garrett Cooney, "was happy to adopt the phrase that `Mr Gogarty was engaged on a frolic of his own'." Mr Callanan said that while the allegation was not made in express terms in any of the statements which were delivered on behalf of the Murphy Group, "the foundation for such an allegation was very clearly laid in repeated assertions that Mr Gogarty had the sole and exclusive control of the lands and the way in which they were managed". Mr Callanan said that assertion was to be found clearly in the statements of Mr Murphy snr, Mr Murphy jnr, and Mr O'Keefe.

Mr Callanan said that "Mr Gogarty stands accused by JMSE and its principals of precisely the allegations of which they complain and precisely the allegations on which they rely in asserting that it is not incumbent on them to set out their case before proceeding to cross-examine Mr Gogarty."

Mr Callanan instanced Mr Bailey's response to the allegation that he had given a £50,000 cheque to Mr Gogarty to encourage him not to take any action against the Murphy group. The response, he said, was that Mr Bailey claimed he never gave Mr Gogarty £50,000 for such a purpose. Such a response was "manifestly inadequate". "It does not address the issue of whether or not £50,000 was given by Mr Bailey to Mr Gogarty. It simply denies that that was done in return for his agreeing to forget about pursuing proceedings against JMSE and simply to enjoy life, although it could, on another reading, be read as a denial that the sum of £50,000, or a cheque for £50,000, was given by Mr Bailey to Mr Gogarty.

"Now we know a little more about what Mr Bailey's case is, because in response to Mr Hanratty, on Thursday last, Mr Leahy chose to enlighten us by informing the tribunal that the statement was not a statement that Mr Bailey did not give Mr Gogarty £50,000."

Mr Callanan then wondered if the foregoing could be acknowledged, "what on earth can the objection be . . . setting out precisely what his position in relation to that payment is?".

"And in relation to Mr Leahy's gloss . . . I do say that that is a form of unedifying striptease which has no purpose in a public inquiry and there is no reason why his client is not in a position to clarify that and other matters."

Mr Callanan said Mr Gogarty had reason to fear "a big ambush" when he was being cross-examined as he had made an affidavit and others had not. "Mr Gogarty," he said, "is not shying away from cross-examination but is keen to rely on procedural fairness. I won't accept for a minute that while an element of surprise is a feature of any cross-examination, that that could afford justification for Mr Bailey or, indeed, for any of the other parties not to comply with the tribunal's request to set out in narrative form the rudiments of their case."

Mr Callanan said there was a simple intellectual exercise which should be undertaken. "Surprise can only arise in relation to a false account of events. If one accepts the view of Bovale and JMSE and Mr Burke that Mr Gogarty was telling deliberate falsehoods, then Mr Gogarty knows what the truth is and cannot be said to be taken by surprise by a cross-examination in which the truth is put to him," Mr Callanan said.