Tom and Caroline Bailey's case that a proposed investigation by the Flood tribunal of their private bank accounts would be an infringement of their constitutional rights was forcefully challenged yesterday by the tribunal's legal team.
Counsel for the Baileys, Mr Colm Allen SC, pleaded that the tribunal's intention to take oral evidence in public from the Baileys of their "scheduled assets" from July 1st 1989 to June 30th 1991 was beyond the inquiry's terms of reference.
The tribunal is seeking details of payments made by Bovale Developments to the private accounts of Mr Bailey, a director, and his wife, who has acted as bookkeeper since the company's inception.
Both Ms Bailey, who was due to be heard first, and her husband were present at the tribunal to give evidence.
Before they could be called, however, legal submissions were heard from Mr Allen and Mr Des O'Neill SC, for the tribunal, which took up most of the day. The chairman, Mr Justice Flood, is expected to give his ruling this morning.
Mr Allen challenged the relevance of the proposed inquiry into the Baileys' private financial affairs on the grounds that it was necessary neither in respect of the allegations made by Mr James Gogarty about payments made to him by Bovale, nor to the tribunal's own terms of reference.
His principal objection was that the alleged payment to Mr Ray Burke by Mr Gogarty could not be the basis for events that had transpired "subsequent to June 1989". A letter dated January 20th of this year from the tribunal had specified the proposed four-year period to 1991 for review.
He also raised the alleged payments by the Bailey brothers, Michael and Tom, to Mr Gogarty, including a cheque for £50,000 and a "finder's" fee. These were "collateral issues only". Mr Gogarty, he argued, was not a public official and as such the chairman was not required to conduct an exhaustive inquiry. He was also concerned that since the chairman had ruled in September last that the Baileys' accounts had been kept "other than in an orthodox fashion", this could give rise to self-incrimination by the witnesses. They had been legally advised not to make a narrative statement to the tribunal, said Mr Allen. If the examination was to go ahead, he argued, could it not be conducted "other than in public"?
Mr O'Neill said there were two relevant points arising from Mr Gogarty's allegations that must be dealt with. The first was that Mr Michael Bailey had handed over an envelope containing £40,000 to Mr Burke at this home in June 1989, and that Mr Gogarty, on behalf of JMSE, had given an equivalent amount to Mr Burke "to secure planning or rezoning favours".
The second Gogarty allegation referred to a meeting at the Skylon hotel where Mr Michael Bailey allegedly gave Mr Gogarty a cheque for £50,000.
Ms Bailey and her husband were being called as witnesses against a background where the relevant documentation had been consumed by fire and where the records of the company's accountant, Mr Joe O'Toole, had been destroyed by flood water, said Mr O'Neill.
To determine whether the alleged payments were made, the tribunal must inquire into the financial dealings of the company.
He did not believe that the tribunal would be acting beyond its powers in seeking the information indicated from Mr and Ms Bailey, said Mr O'Neill, nor that their constitutional rights were being infringed.
Neither were there any grounds for "closing the public out", unless the tribunal believed there were valid grounds for doing so in the public interest.