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THE SUPREME COURT
Denham J. 119/06 Hardiman J. Geoghegan J. Fennelly J. Finnegan J. BETWEEN:
JOSEPH MURPHY, FRANK REYNOLDS AND JOSEPH MURPHY STRUCTURAL ENGINEERS LIMITED
Plaintiffs/Appellants
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MR JUSTICE FEARGUS FLOOD (THE FORMER SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO
CERTAIN PLANNING MATTERS AND PAYMENTS), HIS HONOUR JUDGE ALAN MAHON, HER HONOUR JUDGE MARY FAHERTY AND HIS HONOUR JUDGE GERALD KEYS (THE MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS), IRELAND AND THE ATTORNEY
GENERAL
Defendants/Respondents
JUDGMENT of Mr. Justice Hardiman delivered the 21st day
of April, 2010.
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Background.
In this case the appellants, all of whom are part of what I have
described below as the “Murphy interests”, seek certain declaratory
reliefs and seek to quash by judicial review a decision of the Flood
Tribunal of the 9th day of November, 2004, refusing them costs. They
also seek, if necessary, a declaration that s.6 of the Tribunals of Inquiry
(Evidence) (Amendment) Act 1979 (hereinafter “the 1979 Act”) is
unconstitutional.
The Flood Tribunal, more formally the Tribunal of Inquiry into
Certain Planning Matters and Payments (hereinafter “the Tribunal”)
which was established as long ago as 1997 and is still continuing, is one
of the latest in a series of Tribunals of Inquiry established in this country.
It is established in the manner envisaged by the Tribunals of Inquiry Act
1921 as amended (“the 1921 Act”). This Act is one of the very last Acts
of the old United Parliament of Great Britain and Ireland.
Though there have been Tribunals of Inquiry since the 1920s, the
modern series of tribunals may be regarded as commencing with the Beef
Tribunal of the early 1990s. These tribunals, as this one amply illustrates,
have become immense in their duration and, consequently, in their costs.
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It is fair to say that both the length of the present inquiries and their cost
were utterly unimaginable not only in 1921 but even in 1990 and in 1997.
I am unaware of any international comparator, even amongst States
much richer than Ireland, whose public inquiries approach ours for
length, complexity or expense, or who exhibit such readiness to have
recourse to a tribunal. This is to be deplored from every point of view. I
agree with the academic authority cited by Fennelly J. in his judgment in
this case who said:
“The inquiry is inquisitorial in character, and often takes place in a blaze of publicity. Very damaging allegations may be made against persons who may have little opportunity of defending themselves and against whom no legal charge is preferred”.
and:
“… an inquisitorial public inquiry is not always easily controllable, and its evils would be grave if its use were not infrequent”.
Equally, I wish urgently to recommend to those responsible for the
establishment of tribunals a book “Illinois Justice” by Kenneth A.
Manaster (University of Chicago Press, 2001). This is an account of an
inquiry presided over by the future U.S. Supreme Court Justice John Paul
Stevens into suspected bribery by banking interests of Justices of the
Illinois Supreme Court. The inquiry began in mid-June 1969 and was
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over by the end of July 1969. Stevens announced the terminal date before
he began his work. He insisted on the narrowest possible terms of
reference. He brooked no extension of them. The cost of his six week
inquiry was a miniscule fraction of any of our tribunals. In his foreword
to Manaster’s book, Justice Stevens contrasts this speed and economy
with the “Special Counsel” inquiries subsequently established in the
United States. Yet none of the latter, to my knowledge, have extended to
anything like as long as the present Tribunal.
Both the length and the cost of tribunals are due in part to the
enormous powers which have been conferred on them. They have power
to require any person or body in the State to cooperate with them, to
produce enormous volumes of documentation and to make themselves
available to be questioned. Confidentiality can be set aside and the
privilege against self-incrimination does not apply. Sometimes the cost of
doing this which the individual or company must bear are themselves
enormous. It will not be reimbursed for years, if ever. The tribunal may
withhold any re-imbursement at all. Furthermore, in recent times
tribunals have taken to conducting a good deal of their work in private.
This means that the material they have obtained will normally be known
only to the tribunal and may be selectively concealed from the parties.
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This has proved enormously controversial in the past. See the decision of
this Court in O’Callaghan v. Mahon [2006] 2 IR 32.
If the powers of the tribunals are enormous, so too are the
consequences of their deliberations. We have seen people forced to leave
public life, put to enormous expense and even imprisoned as a result of
their interactions with the Tribunal.
In recent times too, attempts have been made to find cheaper and
less cumbersome ways of inquiring into matters of public concern than
that provided by the Tribunal of Inquiry. One of these has been the notion
of a parliamentary committee. This, indeed, is ironic since the 1921 Act
was passed against a background where the previous preferred method of
inquiry had been the parliamentary inquiry. These, over a period of
centuries, had transpired to be almost invariably corrupt or biased. This
unhappy history is summarised in Maguire v. Ardagh [2002] 1 IR 385.
This case also treats, to some extent, of the unhappy history of certain
American congressional inquiries notably those carried out by the now
notorious House Committee on Unamerican Activities. For a detailed
treatment of the most unfortunate history of British Parliamentary
inquiries see Prof. George W. Keeton “Trial by Tribunal; a study of the
development and functioning of the tribunal of inquiry”, London,
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Museum Press (1960). In Maguire, a group of gardaí whose involvement
in a chain of events in which an unfortunate man was shot dead was the
subject of a parliamentary inquiry, succeeded in preventing the inquiry
from taking place in a political forum. This led to the establishment of the
Barr Tribunal.
Over the years, even the years since 1990, all sorts of people have
taken issue with the powers which certain tribunals sought to exercise in
their particular cases. Some of these have been commercial interests but
at different times gardaí, journalists, a Cardinal, solicitors, members of
Dáil Éireann and even the Government of Ireland itself have sought to
challenge the powers which a tribunal, commission or parliamentary
committee proposed to exercise in their regard. These challenges have
given rise to a substantial body of case law, some of which will be
referred to below.
The Flood Tribunal and the Murphys.
Of the various tribunals of the last two decades, the Flood Tribunal
is by far the best known. In part this is due to its unprecedented length
(with the possible exception of its contemporary, the Moriarty tribunal).
and its consequent unparalleled expense. But it is also due in part to the
very dramatic evidence which has been given before it and to the fact that
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certain prominent people have been very publicly ruined, and in some
cases even imprisoned, as a result of their interaction with it.
Probably no part of the Flood Tribunal’s dealings have attracted
more public attention than that featuring Mr. James Gogarty who made
allegations of the most serious kind against his former employers, the
appellants herein, and others. The destructive effect of these allegations
on individuals, the flamboyance of Mr. Gogarty as a witness and his
striking gift for phrase-making have all contributed to this. One of his
phrases, indeed, may fairly be said to have entered the vocabulary of
Hiberno-English.
In other words, the political and social impact of the Tribunal has
been enormous and is beyond doubt. Equally, its unique capacity to
damage, even to ruin, individuals is well established.
The appellants herein, who for reasons shortly to be explained I
shall refer to as the “Murphy interests”, have been before this Tribunal
principally or solely because Mr. Gogarty made allegations against them.
Their involvement was involuntary: they were compelled to become
involved in the Tribunal, to make discovery or disclosure of huge
quantities of material at enormous expense to themselves and to
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participate in the sittings of the Tribunal for the huge span of 163 sitting
days over a period of several years. After all that, the Tribunal made
findings adverse to them: they were found to have been involved in the
making of corrupt payments and to have “obstructed and hindered” the
Tribunal.
On the basis of these findings, when they applied to recover some
of the enormous costs they had been put to, they were refused both on the
basis of the Tribunal’s substantive findings and its findings in relation to
“obstruction and hindrance”. Furthermore, they are on notice that at a
future sitting of the Tribunal it will be urged that the Tribunal, of its own
motion, should make the Murphy interests liable, to a greater or lesser
degree, for the costs incurred by other interests, or for the costs of the
Tribunal itself. This is plainly capable of amounting to a truly enormous
financial imposition.
The Murphy interests make a number of complaints about this state
of affairs. They say that the Tribunal had simply no power to make
findings of “obstruction and hindrance” in relation to them. Secondly,
they say that even if the Tribunal had such power in principle, it had no
power to make these findings in the manner that it did, which they say
was grossly unfair and breached their entitlement to fair procedures. They
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also say that the process whereby these findings were arrived at was
grossly defective and unsustainable in law or in elementary logic. One of
the allegations of breaches of fair procedures they make is that they were
quite deliberately deprived of evidence which the Tribunal had in its
possession and which might have enabled them (in the somewhat
complex way described below) to avoid the findings of obstruction and
hindrance. They say that they were deliberately deprived of material
which might have been absolutely explosive in its effect on the credibility
of Mr. Gogarty.
The Tribunal says it was fully entitled to come to the conclusions
that it did and to refuse costs to the Murphy interests. They take a number
of points which are more or less technical in nature (in relation to delay,
relevance etc.) but more generally they claim that they were fully entitled
to come to the conclusions that they did and indeed that they had to do so
in order to exercise their statutory costs jurisdiction. They admit that
certain material was withheld from the appellants and further admit that it
should not have been withheld but do not admit that the appellants
suffered any disadvantage in that regard.
I now proceed to consider, in all necessary detail, the nature of this
challenge and the answer made to it.
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Costs and the Legitimacy of Tribunals.
As noted above, certain persons have in the past been heard to
complain, and to take their complaint to the courts, that the enormous
prerogatives of a Tribunal of Inquiry is capable of destroying them,
financially and in terms of reputation, much more obviously than even a
criminal court could do, but that the tribunal’s procedures afford them
few or none of the protections which would be available to them in the
court forum. This contention has always been rejected. It was rejected in
strong terms by this Court in Goodman v. Mr. Justice Hamilton [1992]
2 IR 542. This decision is now the foundation, in Irish law, of the
constitutionality of the Tribunal of Inquiry, as known in our law. But
since that judgment was given, the nature of tribunals in themselves has
been altered, by legislation, by parliamentary resolution establishing or
continuing certain tribunals including this one and by the exponential,
and wholly unpredicted, expansion in the length of Tribunals of Inquiry
and in the costs of them. It would be wholly unrealistic not to
acknowledge that these costs can only be described as truly enormous.
The appellants here have been refused their own costs of
(involuntarily) participating in the tribunal and of the vast discovery they
made, (even though they were legally required to undertake this) and are
on risk of having enormous costs awarded against them. It was made
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clear in the course of this appeal that the State itself has “indirectly”
applied for such an award of costs to be made. Whether a tribunal
empowered to make orders of such enormous financial consequence can
nonetheless be described as being (as, on the authorities, tribunals must
be) “incapable of imposing liabilities” “sterile of legal effect” on the basis
that it merely expresses an opinion, and “this opinion is devoid of legal
consequences”, is the most general of the issues raised by the appellant in
these proceedings.
Other issues turn more narrowly on aspects of the remit, history
and conduct of this particular tribunal. The most notable of these is the
admitted failure of the Tribunal to disclose to the Murphy interests certain
material, which might fairly be described as explosive, relating to the
statements made by or attributed to their principal accuser. But it is
important to note that the appellants have chosen to challenge, not the
substantive findings which the Tribunal made adverse to them, but only
the finding in relation to costs.
Findings gravely adverse to the Murphy interests were made by the
Tribunal in its second interim report (issued on the 26th September, 2003)
and its third interim report issued some fifteen months later on the 21st
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January, 2004. The appellants’ proceedings were instituted on the 20th
April, 2004.
I use the phrase “the Murphy interests” because of what is said in
chapter 17 at p. 141, para. 17-04 of the second interim report of the
Tribunal under the heading “Co-operation with the Tribunal”:-
“The findings made against Mr. Joseph Murphy Snr and Mr. Joseph Murphy Jnr apply pari passu to the companies within the Murphy Group to whom legal representation was granted including Joseph Murphy Structural Engineers Limited, Lajos Holdings Limited. The Grafton Construction Company Limited, Reliable Construction (Dublin) Limited, Barrett Developments Limited (in Liquidation), Turvey Estates Limited, Finglas Industrial Developments Limited (in Liquidation), Helmdale Limited (in Liquidation), Gaiety Stage Production Limited, Gaiety Theatre (Dublin) Limited, Finglas Industrial Estates Limited and Wexburn Limited”.
Mr. Roger Copsley and Mr. Frank Reynolds appear also to have been
identified with the appellants and their companies, and are included in the
above phrase as used by me.
The appellants’ complaints centered principally on the activities of
the Tribunal concerning that aspect of its inquiries known as the “Gogarty
Module”. This related to allegations made by a Mr. Gogarty, formerly an
executive with the Murphy Group, and in particular to an allegation that
the appellants had made a payment in cash to the former Government
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Minister, Mr. Ray Burke. It was specifically alleged that Mr. Gogarty and
Mr. Joseph Murphy Junior had been present when this payment was made
at Mr. Burke’s home in Swords, Co. Dublin, in 1989.
Issues
Two key issues were raised on behalf of the appellants:
(1) whether the Tribunal was entitled to take into account its substantive findings in adjudicating on the issue of costs and
(2) whether the Tribunal was entitled to make findings of “obstruction
and hindrance” against the appellants either (a) at all or (b) in the manner in which it did.
The appellants’ proceedings are directed exclusively, on (1) the
costs order already made, refusing the appellants their costs, and (2) a
further cost issue yet to be determined i.e. whether the appellants can be
made to pay the costs of the Tribunal or of any other party. As will be
seen, certain of the points urged by the appellants would, if upheld,
appear to have implications for the substantive findings of the Tribunal as
well as for its power to grant or refuse costs orders. However, the present
proceedings focus exclusively on the costs issues. This appears to be,
firstly, because of the enormous expense to which the appellants have
already been put and the risk of being forced to pay some or all of the
equally enormous costs of other parties. Secondly, on the basis of
authorities to be discussed below, the appellants say that because costs
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orders represent a positive refusal of a benefit or entitlement or
imposition of a liability, such orders, are outside the class of findings
which a Tribunal of Inquiry may lawfully make, since such findings of a
tribunal of inquiry are required to be “in vacuo” and to be “legally
sterile”. The point was also made by counsel that the substantive findings
against the appellants appear to turn on issues of credibility which it is
difficult to ask a court to review, drawbacks less obviously present in an
attack solely on the Costs order.
The Findings and how they were arrived at.
Leading counsel for the Murphy interests, Mr. Michael Cush S.C.,
referred to chapter 11 of the second interim report entitled “Gogarty
Module”. This is subtitled: “Payment of Money to Mr. Ray Burke T.D. at
his Home at Briargate, Swords, Co. Dublin in June 1989 at a Meeting
Attended by Mr. James Gogarty”. This was very largely an issue of pure
credibility and the Tribunal concluded at p. 77, para. 11 - 23 that:-
“… that the conflicts which are apparent from consideration of the evidence of the parties, could not be explained on the basis that they were innocent failures of recollection, mistakes, or misinterpretation of the true facts. The Tribunal concluded that the divergences in the accounts given by the parties could only be explained on the basis that some party, or parties, had deliberately set out to mislead the Tribunal as to the true circumstances leading to the meeting with Mr. Burke and the payment of monies to him. In broad terms the issue arising was whether the account given by Mr. Gogarty was true or whether the accounts given by all of the other
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persons present in Mr. Burke’s house at the time of the meeting were true. Certain facts were common case namely (1) a meeting did in fact take place at the home of Mr. Burke in June, 1989, (2) Mr. Gogarty, Mr. Michael Bailey and Mr. Burke were present, (3) a substantial sum of money, amounting to not less than £30,000, was paid to Mr. Burke at this meeting partly in cash and partly by cheque and the majority of which was in cash. The essential disputes between the parties arising from the evidence in relation to the JMSE funded payment were (1) whether this payment was made as a political donation, or as a bribe (2) whether this payment was made with the knowledge of the Murphy interests or not.”
From the appellants’ point of view, the question of whether the
payment was a political donation or a bribe was irrelevant and hardly
arose at all. Their case was that they knew nothing at all about it. This, in
turn, depended on the credibility of the witnesses on the issue of whether
or not Mr. Joseph Murphy Junior was at the meeting. He was adamant
that he was not. Only Mr. Gogarty said that he was. It must always be
borne in mind that the meeting at which he was allegedly present was
said to have happened in 1989; the evidence in relation to it was given
about a decade later.
According to the Tribunal:
“Mr. Gogarty’s evidence was that Mr. Murphy Jnr. had attended three meetings in Dublin during the period between the end of May 1989 and the 15th June 1989. The first of these meetings were said to have been a meeting “a couple of days” before the 8th June 1989 which took place at the premises of JMSE at Shanowen Road, Santry, and which was attended by Mr. Joseph Murphy Jnr., Mr. Frank Reynolds and Mr. James Gogarty, on behalf of the Murphy
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interests, and by Mr. Michael Bailey. Mr. Gogarty said that it was at this meeting that Mr. Bailey spoke of his claimed ability to procure planning permission through the assistance of Mr. Burke, and certain named councillors and officials. The second meeting was said to have taken place on the afternoon of the 8th June 1989, and was said to have been attended by Mr. Joseph Murphy Jnr., Mr. Frank Reynolds and Mr. James Gogarty, at which the assembled monies, intended to be paid to Mr. Burke, were counted out by Mr. Gogarty in anticipation of a visit to Mr. Burke’s home on the same date, a visit which was unexpectedly called off. The third meeting some days after the 8th June 1989, was the meeting said to have taken place at Mr. Burke’s home which was said to have been attended by Mr. Michael Bailey, Mr. Joseph Murphy Jnr and Mr. James Gogarty, at which it is said that two envelopes were passed to Mr. Burke which were believed to contain £40,000 each, the first envelope being passed over by Mr. Joseph Murphy Jnr. and the second by Mr. Michael Bailey.”.
These findings occur at p.129, paras 14-92 to 14-94 of the second
interim report. The issue before the Tribunal, in one sense, could not have
been simpler. As counsel for the appellants put it “the issue is whether we
were there at all”.
It is, of course, very difficult indeed to establish anyone’s precise
whereabouts on any given day a decade ago. And even if one does, there
is always a risk that one’s accusers will react by saying that their
allegation really relates to a time less specific, “on or about” a particular
day or something similar. However, Mr. Joseph Murphy Junior focussed
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on the meeting of the 8th June, 1989 because he said he was in London on
that day and was able to call witnesses who had telephoned him on the
morning of that day in London and also that night in London. In relation
to an earlier date, he could show he had been in Waterford for part of the
day.
The appellants complained that there was never a reasoned or
evidence-based finding that Mr. Joseph Murphy Junior was at either
meeting. Instead, there were findings, to be quoted below, that he “could
have” been there which then morphed, without further evidence,
explanation or justification into a finding that he was there. At p.130,
para. 14 - 99 of the second interim report, it was held that
“…notwithstanding the alibi evidence offered in relation to Mr. Murphy
Jnr’s meetings with friends in Waterford, a meeting could have taken
place with Mr. Bailey on either the 31st May or 1st June and still have
allowed Mr. Murphy Jnr. to attend his meeting in Waterford later on the
1st June”. (Emphasis added)
In the following para. 14-100, the Tribunal expressed itself as
follows:
“The Tribunal is satisfied that Mr. Murphy Jnr. could have attended a meeting in Dublin on the 8th June 1989 notwithstanding the evidence that he had received telephone
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calls in London both that morning and that night. A meeting could have taken place at JMSE’s premises on the afternoon of the 8th June provided Mr. Murphy Jnr. had flown from London to Dublin and returned on the same day.” (Emphasis added)
At p. 132, para. 14 -117 the Tribunal concludes “that the alibi
evidence does not prove that Mr. Joseph Murphy Jnr. could not have
attended at least three meetings in Dublin between the 31st May and the
15th June 1989”. (Emphasis added)
This, say counsel for the appellants, amounts to a reversal of the
onus of proof. It is certainly a striking double negative, not apparently a
sound platform for the next mental leap in the findings.
Thus, in considering the allegation made by Mr. Gogarty in which
he spoke of a series of meetings in or about the first half of June, 1989,
and such evidence as Mr. Murphy Jnr. was able to assemble in relation to
his movements at that time, the Tribunal first concluded that Mr. Murphy
Jnr. “could have” attended those meetings or certain of them and
secondly, in the passage as quoted above, that what the Tribunal called
“the alibi” did not prove that he could not have attended them.
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However, by the time it came to set out its findings at p.139,
(chapter 16 “Summary/Conclusions”) the Tribunal said, at para. 16 - 17
that “[t]the parties present at the meeting [where the money was paid]
were Mr. Burke, Mr. Michael Bailey, Mr. Joseph Murphy Jnr. and Mr.
James Gogarty”. (Emphasis added). At this point, “could have” has been
first transposed into “can’t prove the contrary” and then to “was”, an
unqualified positive finding of fact. The seamless (to use Mr. Cush’s
word), silent and unreasoned transition from bare possibility to an
unqualified statement of fact seems possible only by a virtue of a reversal
of the onus of proof. No explanation whatever is offered of it. This is
unsatisfactory in itself. The development in the findings from “could
have” to “can’t prove the contrary” to “did” is an unreasonable one. It is,
in legal terms, irrational.
Mr. Cush alleged, and it was not denied, that the Tribunal moved
from “could have attended the meeting” to “did attend the meeting”
without any intermediate stage, argument, evidence or linkage. This
process was, said Mr. Cush, entirely unargued and a finding that Mr.
Murphy Junior attended the meeting seemed to follow seamlessly, in the
Tribunal’s mind, from an initial finding merely that he “could have”
attended the meeting. Furthermore, the second interim report gives no
indication as to why or how the appellants’ account was rejected.
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Consequences of the foregoing.
Mr. Cush’s primary emphasis, however, was not on the findings
summarised above in themselves, nor even on the question of whether the
Tribunal’s process of reasoning, insofar as it appears from the second
interim report, is capable of logically subtending the findings made.
Instead, Mr. Cush was concerned to illustrate the effect of the foregoing,
not on the substantive findings of the Tribunal but on the findings it made
as to whether the principal representatives of the Murphy interests had, or
had not, “obstructed or hindered” the Tribunal and what, precisely, their
attitude to it had been. He then proceeded to follow the findings on these
latter questions in turn through to the Tribunal’s decision on the costs
issue it has already decided, by way of supporting his attack on that
decision.
“Obstructed and hindered”
In the case of Mr. Joseph Murphy Senior and Mr. Joseph Murphy
Junior, the Tribunal found at pp. 144 to 145, paras. 17 - 15 and 17 - 16 of
its second interim report that each of them “obstructed and hindered the
Tribunal”. In the case of Mr. Joseph Murphy Junior, who was most
directly involved, as the Tribunal found, in the “Gogarty Module”, this
hindering and obstruction was said to consist of:-
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(a) Failing to give a truthful account of the circumstances in which he came to attend a meeting at the home of Mr. Burke in June 1989 at which he handed to Mr. Burke a sum of not less than £30,000.
(b) Failing to give a truthful account of his dealings with Mr. Michael
Bailey with regard to the participation proposal in which it was envisaged that Mr. Michael Bailey would receive 50% of the value of the Murphys’ North Dublin lands in return for procuring planning permission and building bye law approval in respect thereof.
(c) Giving a false account of the involvement of Mr. James Gogarty in
the sale of the Murphy lands and the role played by him in connection with the payment of JMSE monies to Mr. Burke.
(d) Giving a false account of his dealings with Mr. Michael Bailey
subsequent to the publication of the Sunday Business Post articles. (e) Falsely constructing an alibi which was untrue.
It will be apparent that matters set out at (a) and (e) above relate
wholly to the “Gogarty Module” and the matters set out at (c) relate at
least partially and probably wholly to it. The other paragraphs related to
connected transactions. It will also be observed that what the Tribunal
calls an “alibi” is what they earlier described as “alibi evidence” which
was evidence that Mr. Murphy Junior was in London in the morning and
evening of the day at which one of the controversial meetings, that of the
8th June 1989 took place and in Waterford on another date. It will be
remembered that the Tribunal had not previously found that this alibi was
actually false or untrue. It had simply been found that it did not exclude
the possibility of Mr. Murphy Junior’s attendance at the relevant meeting.
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This, in fact, is the same as saying that it was not an “alibi” at all. It is
clear that, though the “alibi” had not been found to be untrue in the earlier
findings of the Tribunal, it has now in some way been found to be untrue
without further argumentation or justification. This conclusion is baldly
stated in chapter 17 of the second interim report. Again, this process
evidences a lack of reasoning or rationality.
The Third Interim Report.
In the Tribunal’s third interim report further findings adverse to the
Murphy interests were made by the Tribunal and there was, additionally,
further findings of hindrance and obstruction against Mr. Joseph Murphy
Junior. These latter are to be found in chapter 8 at p.20 of the Third
Interim Report. The focus of the third interim report was primarily on
payments allegedly made to Mr. George Redmond. It is fair to say that
most of the argument on the hearing of this appeal and almost all of the
factual references with which it was supported, related to the second
interim report. But the two reports are inexplicably connected in terms of
personnel, structure and otherwise: the contrary was not submitted. Mr.
Cush advanced many of the same criticisms in relation to unsupported
mental leaps leading to the findings of hindrance and obstruction as has
been summarised above in relation to the second interim report.
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Legal significance of the term “obstructed and hindered”.
At p. 141, para. 17 - 03 of its second interim report, the Tribunal
had this to say:-
“Any person, duly summoned to do so, who gives evidence to the Tribunal which is material to its inquiry, which that person wilfully knows to be false or does not believe to be true or who by act or omission obstructs or hinders a Tribunal in the performance of its functions, commits a criminal offence.” (Emphasis added)
This is, in fact, a paraphrase of a statutory provision, discussed
below. The Tribunal’s words are quoted here so as to demonstrate that the
substance and meaning of the statutory provision was present in the
Tribunal’s mind when it made the findings of obstruction and hindrance,
summarised above.
Moreover, in the preface to the second interim report, the Tribunal
said:
“All citizens have a duty to co-operate and assist a Tribunal and to tell the truth when summoned to appear at a public hearing. It is with considerable regret that I have concluded that I must report, as one of my findings, that certain parties who appeared before me chose not to co-operate with the Tribunal in its task and further, having been duly sworn did not tell the truth. The extent of which their actions may have involved them in breaches of the criminal law is a matter upon which the Director of Public Prosecutions has absolute and exclusive jurisdiction. I have decided to forward a copy of my Report
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to him to take such steps, and to do with it, what he, in his absolute discretion, considers appropriate.”
Again, I quote this passage principally as evidencing the state of
mind of the Tribunal. However, it is necessary to point out, as will in any
event be obvious, that the question of whether or to what extent any
person involved in the Tribunal may have committed a breach of the
criminal law is a matter, not for the Director of Public Prosecutions, but
exclusively for the courts if and when the Director of Public Prosecutions
or any other competent prosecutor initiates a prosecution.
The statutory provision referred to above is s.3 of the 1979 Act.
Insofar as relevant this provides as follows:
“(3) The Principal Act is hereby amended by the substitution of the
following subsections for subsection (2) of section 1: (2) If a person -
(a) - (b) - (c) - (d) by act or omission, obstructs or hinders the tribunal in
the performance of its functions… (e) - (f) -
the person shall be guilty of an offence.
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(2A)(a)A person guilty of an offence under this section shall be liable on conviction on indictment to a fine not exceeding £10,000 or at the discretion of the court to imprisonment for a term not exceeding 2 years or to both such fine and such imprisonment.”
When this statutory citation and the extracts from the second
interim report quoted above are considered in light of the findings of the
Tribunal in relation to the appellants it will be clear that the finding that:
“Mr. Joseph Murphy Junior obstructed and hindered the Tribunal”, is a
finding that Mr. Joseph Murphy Junior committed a criminal offence. In
light of the fact that the first way in which the Tribunal found that he
obstructed and hindered the Tribunal was by “failing to give a truthful
account” of a particular matter and the fifth way was by “falsely
constructing an alibi which was untrue” it will be clear that the findings
of the Tribunal amounted to a finding, not only of the actus reus of a
criminal offence but also of the mens rea of the offence, said to have been
committed by a named person. It is also a finding based entirely on the
substantive findings and is indeed presented in substance as a corollary of
them. There is no basis for the “obstructed and hindered” finding other
than the substantive finding. This conclusion is neither logically nor
legally valid. Merely because one witness’s evidence is preferred to that
of another does not mean, or imply, that the other has committed a
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criminal offence, whether of obstruction or hindrance or otherwise. This
proposition was not defended on this Appeal.
Whether a finding of this sort is one which it is proper for any
Tribunal of Inquiry to make, or for this Tribunal to make in the
circumstances in which it did, will be discussed below.
It is clear from the introductory portion of chapter 17 of the second
interim report (at p. 141, para. 17 - 04) that, in the Tribunal’s mind,
firstly, there existed an alternative option existed of making a finding of
non-cooperation in lieu of a finding of hindrance and obstruction, and
secondly that a finding, even of failure to co-operate “can have serious
consequences both as regards costs, and otherwise”, as the Tribunal put it.
Non-cooperation, unlike obstruction or hindrance, is not a criminal
offence. In the same module in which the finding of obstruction and
hindrance were made against Mr. Murphy, three other persons were
found not to have co-operated, but no more.
It is to the general topic of costs which I now turn, prior to
considering the propriety of the findings summarised above in the
circumstances in which they are made.
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Costs.
The Murphy interests perforce, participated in the workings of the
Tribunal for a total of 163 hearing days. They were represented by
solicitors and counsel and engaged in regular communication with the
Tribunal and, perforce, provided the Tribunal with very significant and
exhaustive discovery. It is quite clear, and indeed obvious, that this was a
remarkably expensive process which was a consequence of the decision
of Dáil Éireann to establish the Tribunal, with the powers contained in the
1921 Act as amended.
The Ruling on costs.
The Ruling on the appellants’ application for costs was delivered
on the 9th November, 2004. In the form in which the Tribunal delivered
the ruling it was described as the “Ruling in relation to application of
Joseph Murphy, Structural Engineers (JSME). Its associated Companies,
Directors, Officers and Auditor”. The ruling set out the findings in
relation to the above-mentioned persons contained in the second interim
report and likewise in the third interim report. The new Chairman of the
Tribunal then went on to say at pp. 6 to 7:-
“The issue I have to consider is whether, having regard to the entire of the relationship between the Applicants and the Tribunal, a case can reasonably be made on behalf of the Applicants that the incidences of cooperation on the Applicants’ part were such as would enable me to, for good
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reason, exclude or separate them from the very serious adverse findings relating to cooperation that were found by the Tribunal in both the Second and Third Interim Reports… The Applicants were between them found to have knowingly given false evidence and in the case of the late Mr. Joseph Murphy Senior, Mr. Joseph Murphy Junior, Mr. Frank Reynolds and Mr. Roger Copsey to have colluded with each other to mislead the Tribunal. I must accept these findings and I have to assume they were properly and fairly made. Taken as a whole the adverse findings of obstructing and hindering the Tribunal made against the Applicants were so serious, so extensive and so far reaching as to clearly lead any reasonable person considering them to the conclusion that the individuals concerned, particularly those I have named in the preceding paragraph, were intent from the outset in ensuring that the Tribunal would not find the truth… To put it more simply, the conduct of the Applicants in their dealings with the Tribunal was unlawful and disreputable, and amounts to a fundamental disregard for the very purpose of the Tribunal and their legal duty to cooperate with it. In spite of the serious findings of corruption on the part of some of the Applicants, I would have considered awarding them a portion of their costs had they chosen to fully and honestly cooperate with the Tribunal. I am firmly of the view that there should be a strong incentive for a party to cooperate with the Tribunal and that any party who fully cooperates with the Tribunal by giving a truthful account of their knowledge of the events under inquiry can reasonably expect to recover at least a significant portion of his or her costs notwithstanding adverse findings on substantive issues such as corruption. In all the circumstances (sic) therefore I do not believe it would be appropriate to award any costs to the Applicants and I therefore refuse their application.” (Emphasis added)
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Some of the language in this quotation reflects the fact that the findings
referred to were those of the former Sole Member, Mr. Justice Flood,
while the costs decision was that of the Chairman of the three judge
tribunal who succeeded him.
Legality of above findings and decisions of the Tribunal.
Article 38.1 of the Constitution provides as follows:
“No person shall be tried on any criminal charge save in due course of law.”
As we have seen above, Mr. Joseph Murphy Junior and others,
have been found and declared by the Tribunal to have wilfully obstructed
and hindered it in the performance of its functions. This, by reason of the
amendment to the 1921 Act which is quoted above, is a finding of a
criminal offence. But it has not been, and could not be, contended that
this finding was made “in due course of law”, as that phrase is used in
Article 38.1 of the Constitution. This is not disputed. But, it is said, that
Article 38.1 applies only to trials and that the proceedings of the Tribunal
do not constitute a trial or trials, and result only in the expression of
opinions, which have no legal consequences.
Further, Article 34.1 of the Constitution provides that:
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“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as maybe prescribed by law, shall be administered in public.”
The antiquity and importance of the concepts underlying Article
38.1 of the Constitution in particular are of central importance. In
Conroy v. The Attorney General [1965] IR 411, Kenny J. said at p. 415
that:
“I think that s.1 of the Article is an echo of a clause in the Great Charter of Ireland granted in 1216… [The] phrase “due process of law” was adopted by those who drafted the Fifth Amendment to the Constitution of the United States of America which prevents any person being deprived of life liberty or property without due process of law. I think that s.1 of the Article gives a constitutional right to every person to be tried in accordance with the law and in accordance with due course or due process of law.”
The Great Charter of Ireland is Magna Carta as transmitted to Ireland in
the remote year 1216.
In one of the cases most discussed on the hearing of this appeal,
Goodman International v. Hamilton [1992] 2 IR 542, McCarthy J.
expressed similar sentiments at p.609. He said:
“In Ireland, having regard to the express provisions of Article 38, of which s.1 is an echo of the phrase “due process of law” in the Fifth Amendment to the Constitution of the United States of America, it may be more relevant to look to decisions of the United State Supreme Court touching on the
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scope and range of parliamentary investigation or inquiries. The prescription of the Fifth Amendment, so far as relevant, is not to be deprived of life, liberty or property without due process of law; this may have a wider scope than the prescription of Article 38 s.1: “No person shall be tried on any criminal charge save in due course of law”. The rights identified at common law, such that no man be put to answer without presentment before justices, are in my judgment subsumed by the constitutional guarantees of fundamental rights. The prescripts of natural justice - to hear the other side and not to be a judge in one’s own cause, have, themselves, been subsumed by the constitutional right to fair procedures. The right to be heard incorporates the right to be put to answer, to be told of the allegation, and to confront the witnesses. History may well be a guide, but only a guide, to constitutional construction. Rights are to be found within the constitutional framework, some created, others identified and guaranteed.” (Emphasis added)
In this present case the Tribunal unambiguously found that certain
persons had done things which, in an identical form of words, the
legislature has decreed should constitute a criminal offence. These things
were not even amongst the “definite matters of urgent public importance”
which the Tribunal was mandated to inquire into and report upon.
Furthermore, on the basis of that finding, or partly on that basis, the
Tribunal has deprived the Murphy interests of their costs amounting (it is
quite safe to assert) to a truly enormous amount of money by reason of
the almost incredibly protracted nature of the Tribunal’s hearings, and the
vast scope of the discovery required of them.
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These facts illustrate, more clearly than any other of the very
numerous cases to do with Tribunals of Inquiry which have come before
the Court, the scope for conflict between a tribunal and constitutional
rights especially in relation to the trial of offences. The learned editors of
Kelly on The Irish Constitution 4th Ed., (Dublin 2003) at p. 1040 state
that:
“Article 38.1 is plainly referable to the trial of offences, but the novel question of whether the Oireachtas is free to establish parallel procedures providing for the investigation of alleged criminal (or potentially criminal) conduct was examined by the Supreme Court in Goodman International v. Hamilton, (No 1) [cited above].” (Emphasis added)
The judgments in Goodman turn fundamentally on the distinction
between the nature of a trial as opposed to that of an inquiry for the
purpose merely of reporting an opinion on facts. At a trial, according to
Finlay C.J. at p.588 “… the sole purpose and object of the verdict, be it
one of acquittal or of conviction, is to form the basis for either a
discharge of the accused from the jeopardy in which he stood, in the case
of an acquittal, or for his punishment for the crime which he has
committed, in the case of a conviction.”
By contrast, according to the same learned judge, “[t]he Tribunal
has no jurisdiction or authority of any description to impose a penalty or
punishment on any person. Its finding… can form no basis for either the
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conviction or acquittal of the party concerned on a criminal charge… nor
can it form any basis for the punishment by any other authority of that
person. It is a simple fact-finding-operation, reporting to the Legislature.”
(Emphasis added)
At p. 590, Finlay C.J. describes the activity of the tribunal as “…to
make a finding of fact, in effect, in vacuo and to report it to the
Legislature.”
The High Court judgment in Goodman was that of Costello J. (as
he then was). He based himself to some degree on the judgment of Finlay
C.J. in Kennedy v. Herne [1988] IR 481 at p.488 to 489 as follows:
“A characteristic of the exercise of a judicial function is that by its determination within jurisdiction the tribunal, court or individual concerned imposes liabilities or affects rights”.
He goes on to consider the Tribunal in question in the Goodman
litigation, the Beef Tribunal, and said at p.556 to 557 that “in inquiring
into these allegations and in reporting its opinion on them the Tribunal is
not imposing any liabilities or affecting any rights… It may come to the
conclusion that some or all the allegations of wrongdoing are true, but
this opinion is devoid of legal consequences.” (Emphasis added)
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Costello J. then went on to discuss a number of New Zealand,
Australian and American cases to which he had been referred and in
particular the well known Australian case of Victoria v. Australian
Building Construction Employees Federation (1982) 152 C.L.R. 25.
He quoted in particular from the judgment of Brennan J. at pp. 152 to 153
which contains a phrase which has subsequently been used throughout the
common law world in relation to the findings of Tribunals or
Commissions of Inquiry. The quotation is to be found at p.562 of the
judgment of Costello J. in Goodman:
“What the common law and the early statutes forbade to the executive was the assumption of any judicial function or interference with the judicial process. A commission of mere inquiry and report - affecting no rights privileges or immunities, imposing no liabilities, exposing to no legal disadvantage - cannot be (unless the circumstances are exceptional) either an authority for the assumption of judicial function or an interference with the judicial process. Even if a commissioner be directed to inquire into and report upon a contravention of the law, the inquiry and report are sterile of legal effect. It is not the nature of the facts to be found, but the legal effect of the finding which may stamp an inquiry as judicial… The absence of any legal effect in the findings of a royal commissioner appointed merely to enquire and report denies any suggestion that such a commissioner is exercising judicial power.” (Emphasis added)
The phrase referred to above is “sterile of legal effect” or “legally sterile”
as it is sometime rendered, used as a description of the quality of a
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tribunal which prevents it from being an unconstitutional usurpation of
judicial functions and powers.
The significance of the Goodman decision for this branch of the
law can hardly be overstated. Nor, if I may say so, could the case against
the compatibility of the system of Tribunals of Inquiry, within our
constitutional dispensation, be more convincingly put than in the
submission of Mr. Seamus McKenna S.C. and Donal O’Donnell for
Laurence Goodman, set out at pp. 572 to 573. Mr. McKenna said:
“The issue of the right of the Tribunal to investigate the truth or otherwise of allegations of criminal conduct or illegal activities, or fraud, is the core and fundamental constitutional question in this case.”
He went on to contend, in a passage of remarkable force, that if the
powers of the Tribunal of Inquiry were upheld that it would, therefore, be
open to the members of the legislature or some of them to constitute
themselves as a parallel court to investigate allegations, with the sole
reservation that
“[w]e cannot punish you by way of imprisonment but we may order you to pay what might in some circumstances be an enormous penalty by way of costs in relation to one or other of the parties before us.”
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It was this forceful proposition, it seems to me, that led to the dictum of
McCarthy J. on costs, discussed below. This fact, also, seems strongly to
indicate that the dictum of McCarthy J. is not, as the Respondents at one
point submitted, merely obiter.
Nevertheless, the courts upheld the constitutionality of the Tribunal
of Inquiry known as the Beef Tribunal on the basis that what it did was
not the trial of an offence. It is worth recapitulating some of the
characteristics attributed by the judgments in this Court and the High
Court to the tribunal findings, which prevented their being the trial of an
offence. The phrases now to be considered were, accordingly, the Court’s
expression of the aspects of the legal nature of a Tribunal of Inquiry
which prevents it offending the Constitution.
In the words of Costello J., or in the words of the judicial
authorities cited with approval by him, the Tribunal of Inquiry is “not
imposing any liabilities or affecting any rights” (at p.557); its conclusions
have merely the status of opinion and “this opinion is devoid of legal
consequences” (at p.557), its findings are “sterile of legal effect” (562
and its purpose is “merely” to inquire and report (at p.562). A Tribunal of
Inquiry is “a simple fact-finding-operation” according to Finlay C.J. (at
p.588). The Tribunal has no power to inflict a penalty and its
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determinations cannot “form any basis for the punishment by any other
authority of that person” at p.588. Its function is to “make a finding of
fact, in effect, in vacuo, and to report it to the Legislature.” (at p.590)
This judgment will shortly address the question of whether the
present Tribunal of Inquiry, in acting as it has done, and as is summarised
earlier in this judgment, exhibits those characteristics of a Tribunal of
Inquiry which alone protect it from constitutional vulnerability. First,
however, it is appropriate to consider some further aspects of Goodman,
and certain dicta from the judgment of McCarthy J. on the specific topic
of costs.
Goodman is a decision of this Court, a case of high authority
which we have not been asked to disapprove and which I propose to
follow. It is true that Mr. Michael Collins S.C. who appeared for the
Tribunal on this appeal said he would ask the Court “if necessary” to
depart from Goodman. I take it however, that this is a reference solely to
the dictum of McCarthy J. to be discussed below and not to the principal
thrust of Goodman, which has been for almost twenty years every
Tribunal of Inquiry’s title to constitutionality. No argument was directed
against any finding in Goodman except the dictum of McCarthy J.
Nevertheless, it must be acknowledged that, in distinguishing the findings
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of a tribunal from the verdict of a court, the judges were obliged to make
some rather subtle distinctions which one may take leave to doubt would
count for much in the minds of ordinary people. I have to some extent
explored this topic in my judgment in Maguire v. Ardagh [2002] 1 I.R.
385 at 669.
Hederman J., in his judgment in Goodman cited extensively from
the dissenting judgment of Murphy J. in the Australian case cited above.
The citation can be found at pp. 599 to 600 of the judgment and I propose
to quote simply the first three sentences:
“The authority given to the Commissioner to exercise such an important ingredient of judicial power as finding a person guilty of ordinary crimes, is in itself an undermining of the separation of powers. It is a fine point to answer that the finding is not binding and does not of itself make the person liable to punitive consequences. It is by fine points such as this that human freedom is whittled away.”
I believe that points such as these and the others made by Murphy
J. and quoted by Hederman J. must always be borne in mind in this area
of the law. I would also observe that the considerations there expressed in
my opinion apply whether (in the memorable phrase of Mr. McKenna
S.C. at p. 573)the “Tribunal of inquiry [is] presided over by a Solomon or
a simpleton.” The confining of a Tribunal of Inquiry within its proper
bounds in no way reflects on the individuals who compose it.
- 39 -
Costs Provisions.
Section 6 of the Tribunals of Inquiry (Evidence) (Amendment) Act
1979 provided as follows, at the time when Goodman was decided:
6(1) Where a tribunal, or if the tribunal consists of more than one member, the chairman of the tribunal, is of opinion that, having regard to the findings of the tribunal and all other relevant matters, there are sufficient reasons rendering it equitable to do, the tribunal or the chairman, as the case may be, may by order direct that the whole or part of the costs of any person appearing before the tribunal by counsel or solicitor, as taxed by a Taxing Master of the High Court, shall be paid to the person by any other person named in the order.
In his judgment in Goodman, McCarthy J. briefly expressed his
agreement that (at p.604) that “[t]here is no usurpation of the role of the
judiciary in the administration of justice” for the reasons given by the
other judges and summarised above. He devoted the bulk of his judgment
to the question of fair procedures before a tribunal, saying at p.605:
“No challenge was made to the constitutional validity of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979, but it must be construed as subject to the constitutional framework and, in particular, involving fair procedures.”
The learned judge then went on to expound the requirements of fair
procedures under a number of headings of which the third related to s.6 of
the 1979 Act, the source of the jurisdiction to award costs. McCarthy J.
said at p. 605:
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“The liability to pay costs cannot depend upon the findings of the Tribunal as to the subject matter of the inquiry. When the inquiry is in respect of a single disaster, then, ordinarily, any party permitted to be represented at the inquiry should have their costs paid out of public funds. The whole or part of those costs may be disallowed by the Tribunal because of the conduct of or on behalf of that party at, during or in connection with the inquiry. The expression “the findings of the tribunal” should be read as the findings as to the conduct of the parties at the tribunal. In all other cases the allowance of costs at public expense lies within the discretion of the Tribunal or, where appropriate, its chairman.”
The Tribunal in question here is, of course, not concerned to
inquire into a single disaster (as for example the Whiddy or Stardust
Tribunals were). It seems to me that the principle behind the passage just
cited in the judgment of McCarthy J. is this: a Tribunal of Inquiry will be
convened only when some thing or things have happened which have
given rise to grave public disquiet. Pursuant to the 1921 Act such a
tribunal may be convened only in relation to “a definite matter… of
urgent public importance”, and only where it is “expedient” in the public
interest that a tribunal be established. Thus, a tribunal to which the 1921
Act applies may be established only in the public interest and in acute
circumstances which, for the satisfaction of the public, require
elucidation. Historically, tribunals have often been established in the
aftermath of a single disaster occurring due to negligence, act of God or
in unknown circumstances. But, equally, many tribunals have been
- 41 -
established in relation to matters which derived their significance from
commercial, financial or political concerns, and which also require
elucidation in the public interest. The former class of inquiry may easily
involve persons who are completely innocent of any involvement in the
cause of the disaster but whose evidence is still required to be taken. See
the report of the Whiddy Tribunal. It is reasonable that, since their
presence and their evidence is required in the public interest, the public
purse should defray the costs of and incidental to such evidence. In the
latter sort of inquiry the people whose attendance and evidence is
required are more likely to have some prior involvement, innocent or
otherwise, in the chain of events leading to the establishment of the
tribunal. Nevertheless the supreme importance, in the public interest, of
having all their evidence available means that they cannot be penalised in
costs for their past behaviour relating to the substantive subject matter of
the tribunal’s inquiries.
The significance of the circumstances in which costs may be
awarded is of course very great in practice. Due to the very prolonged
nature of the Tribunal sittings, it has been openly speculated that the total
costs of the Tribunal and all other parties will run into tens of millions of
euros. To be made to pay even a small fraction of such costs is plainly a
very significant matter, perhaps financially ruinous for an individual or a
- 42 -
company. It is very difficult to regard a conclusion of a tribunal which
may determine, or influence, so significant a liability as being one which
“does not impose liabilities or affect rights” or one which merely has the
status of opinion and “this opinion is devoid of legal consequences” or
“sterile of legal effect” or as a finding made “in effect, in vacuo”. Still
less is it “devoid of legal consequences”.
Yet it was only by so characterising the conclusions of a Tribunal
that its constitutionality was preserved in Goodman. It appears to me that
McCarthy J. was conscious of the very acute difficulty for the analysis
presented in the judgments of Costello J. and Finlay C.J. (and with which
he agreed) of the costs jurisdiction (which emphatically imposes
liabilities) that he wrote as he did in the passage cited above. I may say
that the difficulty is not rendered less acute by the terms of the amending
Tribunals of Inquiry (Evidence) (Amendment) Act 1997, nor of the
Terms of Reference of this Tribunal, which will be discussed below.
The Tribunal, in its submissions, has fully recognised the great
significance of the dictum of McCarthy J. cited above. It has sought to
address it in three ways: firstly that it is simply the judgment of a single
judge; secondly that it is any event obiter and thirdly that it has been
overtaken by subsequent legislation, in particular the 1997 Act.
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In Goodman there were three judgments in the Supreme Court,
those of Chief Justice Finlay and Hederman and McCarthy JJ. The other
judges, O’Flaherty and Egan JJ expressly agreed with each of the
judgments delivered. Moreover, Finlay C.J. expressly agreed with Mr.
Justice McCarthy’s dicta on the subject of costs. At p.591 to 592of the
judgment the former Chief Justice stated:
“With regard to the questions of the common law precedents concerning commissions of inquiries in other common law countries, and with regard to other questions raised concerning the construction of ss. 4, 5, and 6 of the Act of 1979, I have had the opportunity of reading the judgment which is about to be delivered by McCarthy J., and I agree with it.”
It does not, therefore, seem possible plausibly to argue that the
judgment of McCarthy J. expresses simply his own view: it appears to
have the endorsement quite expressly of at least three of his colleagues.
As I have noted above, McCarthy J. agreed that “there is no
usurpation of the role of the judiciary in the administration of justice” in
the establishment of a tribunal such as that then under consideration. He
did this for the reasons given by his colleagues and summarised earlier in
this judgment. But this was based on his presumption that the
requirements of fair procedures would be observed by any tribunal sitting
pursuant to the 1979 Act which statute “… must be construed as subject
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to the constitutional framework and, in particular, involving fair
procedures”.
I would remark with respect that this latter observation is
manifestly correct. This fact is inconsistent with the observation of
McCarthy J. being merely obiter. Indeed, on the contrary, the passage in
question seems to me to turn upon the construction of the arguably
general phrase “the findings of the Tribunal” in a particular, limited, way
so as to avoid the constitutional vulnerability which would follow if those
words in the 1979 Act were given an entirely literal meaning. This, of
course, involves the assumption that these words are capable of a
different and narrower meaning, which, like McCarthy J., I believe they
are.
The question of the effect of subsequent legislation will be
considered below.
__________________________
The decision on Costs.
Against that background, it is now necessary to consider the basis
on which the Murphy interests were refused their costs.
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It will be recalled, and is in any event set out above, that the then
Chairman of the Tribunal held that:
“Taken as a whole the adverse findings of obstructing obstructing and hindering the Tribunal made against the Applicants’ were so serious, so extensive and so far reaching as to clearly lead any reasonable person considering them to the conclusion that the individuals concerned, particularly those I have named in the preceding paragraph, were intent from the outset in ensuring that the Tribunal would not find the truth...
In spite of the serious findings of corruption on the part of some of the Applicants’ I would have considered awarding them a portion of their costs had they chosen to fully and honestly cooperate with the Tribunal. I am firmly of the view that there should be a strong incentive for a party to cooperate with the Tribunal and that any party who fully cooperates with the Tribunal by giving a truthful account of their knowledge of the events under inquiry can reasonably expect to recover at least a significant portion of his or her costs notwithstanding adverse findings on substantive issues such as corruption. In all the circumstances therefore I do not believe it would be appropriate to award any costs to the Applicants and I therefore refuse their application.” (Emphasis added)
From this ruling the following propositions seems to me to follow:
(a) That, in the Tribunal’s mind, the appellants had disentitled themselves to some portion of their costs by virtue of the “serious findings of corruption” i.e. findings on the subject matter of the inquiry.
(b) But they might still have recovered “a portion of their costs” had
they, in the Tribunal’s view, co-operated with it. (c) These “portions” are not defined in terms of fractions or
percentages but it is said that a person who co-operates fully and
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truthfully with a tribunal can reasonably expect to recover at least “a significant portion of his or her costs”, notwithstanding adverse substantive findings. (Emphasis added)
(d) Therefore, both the substantive findings and the “obstructing and
hindering” finding are implicated in the tribunal’s decision refusing all costs.
(e) It is quite clear from the full text of costs ruling, which is referred
to earlier in this judgment, that the substantive findings, like the finding of obstruction and hindrance, contributed to the decision to refuse costs to the appellants. This appears quite contrary to the dictum of McCarthy J., cited above from Goodman.
In making submissions on the costs ruling, counsel for the Tribunal
on the hearing of this appeal had some difficulty in construing it.
However, he confirmed that the phrase, in the Tribunal’s list of the ways
in which the Tribunal had allegedly been hindered and obstructed by Mr.
Murphy, “failing to give a truthful account” means perjury. He also
confirmed that those findings reflect the fact that “every conflict of fact
had been resolved against the Applicants”. (Emphasis added) But he first
agreed that both the findings of corruption and the findings of non-
cooperation “are implicated as the basis of the costs order”. However, he
almost immediately amended this saying “no, the finding of corruption is
not at all involved.” I do not understand the logic of this, or how it relates
to the express words of the ruling, which clearly states, in its penultimate
paragraph, that the “serious findings of corruption” have reduced the
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costs entitlements even of a co-operating party to a “portion” or a
“significant portion” of his total costs.
In the ruling, the Tribunal considered both the substantive findings
as to the subject matter of the Tribunal’s inquiries and the Tribunal’s
conclusions as to the degree of co-operation it has received from a party
are relevant to the award of costs. But they are relevant to different
(though undefined) portions of the costs. An undefined but “significant”
portion of the costs is referable to conduct before the Tribunal alone,
without regard to any adverse substantive findings. In the circumstances
of this case the appellants failed to meet the Tribunal’s criteria either in
relation to the substantive subject of its inquiries or in relation to their
conduct before the Tribunal.
The extent to which this is consistent with the statutory power set
out at s.6 of the 1979 Act as amended and the authorities cited above,
specifically the judgment of McCarthy J. cited above, will soon fall to be
considered.
Undisclosed material.
But there is another and separate aspect of the Tribunal’s
proceeding about which the appellants complain. They say that they have
- 48 -
discovered very late in the day, in the course of discovery made by the
Tribunal a very short time before the High Court hearing of this case, that
the Tribunal had in its possession for a number of years, certain tape
recorded and transcribed material. This appears to show their accuser,
Mr. Gogarty, making allegations of impropriety, some extremely grave,
against other, unconnected, persons. They say that this material was
manifestly relevant to the question of Mr. Gogarty’s credibility and that it
was quite wrongly not disclosed to them. This had the effect of
concealing it from them. Instead, they were given a “redacted” version of
the material in question, from which the Sole Member had excised all
references to the allegations made by, or attributed to, Mr. Gogarty
against these third parties. They say that the Tribunal, precisely as was
done in O’Callaghan v. Mahon [2006] 2 IR 32, wrongfully concealed
this material from them.
Nature of the materials.
As mentioned above the material in question was eventually
produced only long after the appellants had issued these judicial review
proceedings and the plenary proceedings with which they were
consolidated. The Court was told without contradiction that the material
was produced not more than a fortnight before the hearing of the High
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Court proceedings. The Murphy interests had no prior access to them and
were refused such access when they asked for all redacted material.
The discovered material showed that Mr. Gogarty had apparently
made statements to the Tribunal or to third parties alleging serious
improprieties against at least four other persons whom it is fair to
describe as being well known persons of good reputation. One of these
persons has since died. The first and most immediately relevant of the
allegations was that Mr. Gogarty claimed to know, from a named source,
that money was paid in cash, not only to Mr. Burke, but to another
politician, in connection with a named site, and that the two politicians
had co-operated to bring about a desired result. I do not propose to
mention the name of the other politician, or the site, or the timing of this
event but its relevance to the matters at issue before the Tribunal is
obvious. Either Mr. Gogarty was telling the truth when he said that the
named person gave him this information, or he was not. Either the
information itself was true, or it was not. If either of these matters was
untrue, that would involve the consequence that Mr. Gogarty had made
an admittedly or demonstrably false allegation against another prominent
politician. This in turn would have been gravely destructive of his
credibility and would raise questions as to his motivation.
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None of the other persons against whom Mr. Gogary is portrayed
as making or relating allegations are as prominent as the second politician
whose alleged activities have just been described. But it is fair to say, at
the same time, that they are all well known persons in professional
commercial and political circles. It would be difficult to give a flavour of
what was said about them without tending to identify them: in any event,
the allegation about the second politician, because it also involves a
person already much mentioned before the Tribunal (Mr. Burke) and
because of its general similarity to the “Briarsgate” allegation, where
findings adverse to the Appellants were made, is the most glaring
omission.
On the hearing of this appeal the Tribunal’s counsel dealt with this
matter very briefly indeed, saying only that the appellant should have had
the material but they had not been given it. I interpret this as acquiescence
in the factual aspect of the appellants’ complaints but putting in issue the
legal significance of them. He said the Tribunal had acted wrongly, but in
good faith and for the avoidance of collateral issues.
At this point it is necessary to repeat, as has already been said
several times in this judgment, that the appellants’ claims for relief relate
wholly to the findings of obstruction and hindrance and do not extend to
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the substantive findings of the Tribunal on the issues into which it was set
up to inquire.
This issue of concealed material comes before the Courts very late
indeed. The appellants cannot be blamed for this since they received the
material only, it would appear, a matter of days before the High Court
hearing. One of the consequences of this delay is that, unfortunately, both
Mr. Gogarty and at least one of the persons against whom he appears to
have made allegations have died since the eventual disclosure. Mr.
Gogarty’s death means that the material in question can never now be
deployed in cross-examination of him and he himself is, of course, unable
to defend his position.
The rights of third parties make it difficult to give any satisfactory
account in this judgment of the material in question. However it is
possible to say that, at least on one tenable view of it, it is material of an
explosive nature, given the position and significance of Mr. Gogarty to
the Tribunal’s findings. But in dealing with the material here it is
necessary for the Court to have regard to the good name of the persons
against whom he is said to have made allegations, who were and are
without exception prominent and reputable people. It is important to say
that, having read the papers presented for the purpose of this appeal, I
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have absolutely no reason to believe that the allegations said to have been
made against the third parties have any truth whatever to them. Indeed,
having regard to their constitutional right to their good name and the
obligations which that imposes on the State, including the courts, I intend
to presume that the allegations made against them are false. But that, as
will be seen, merely emphasises the importance of the material from the
appellants’ point of view.
Position of Mr. Gogarty
Mr. Gogarty was the principal, and on many matters the only,
witness against the Murphy interests. For example, the allegations against
Mr. Joseph Murphy Senior and Mr. Joseph Murphy Junior in relation to
the alleged payment to Mr. Burke, depend wholly on his evidence. All of
the other relevant witnesses contradicted him. There was no question of
corroboration or other external support for the account he gave, insofar as
it concerns the Murphy interests.
Accordingly, the appellant’s have been gravely damaged in their
characters and reputation and face an enormous financial liability, wholly
on the basis of an issue of credibility between Mr. Gogarty and
themselves. If the allegations which Mr. Gogarty was making were to be
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tested at all, their defence to them had to raise the question of Mr.
Gogarty’s credibility.
Every lawyer with even a little experience is aware of the
exigencies of a hearing of that sort. The law and the procedures adopted
must give ample scope to a person accused to defend himself according to
the needs of the individual case. In Re Haughey [1971] IR 217 at 264
Chief Justice Ó Dálaigh said:
“[I]n proceedings before any tribunal where a party to the proceedings is on risk of having his good name, or his person or property or any of his personal rights jeopardised, the proceedings may be correctly classed as proceedings which may affect his rights, and in compliance with the Constitution the State, either by its enactments or through the Courts, must outlaw any procedures which will restrict or prevent the party concerned from vindicating these rights.”
On that basis the Court held that a person in the position mentioned
in the preceding paragraph is in all cases entitled to the following
“minimum protection”:
“(a) that he should be furnished with a copy of the evidence which reflected on his good name;
(b) that he should be allowed to cross-examine, by counsel, his accuser
or accusers; (c) that he should be allowed to give rebutting evidence and (d) that he should be permitted to address, again by counsel, the
Committee in his own defence.”
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The Haughey case was decided in the context of an inquiry by the
Oireachtas Committee on Public Accounts. But Ó Dálaigh C.J. continued,
at p.264, to say that without the rights mentioned above:
“…[No] accused - I speak within the context of the terms of the inquiry - could hope to make any adequate defence of his good name. To deny such rights is, an ancestral adage, a classic case of clocha ceangailte agus madraí scoilte. Article 40, s.3 of the Constitution is a guarantee to the citizen of basic fairness of procedures. The Constitution guarantees such fairness and it is the duty of the Court to underline that the words of Article 40,s.3 are not political shibboleths but provide a positive protection for the citizen and his good name.”
It will be apparent from the foregoing that one of the principal
recourses of a citizen who is attacked, undermined in his character and
reputation and who faces the possibility of an enormous liability on the
basis (here) of the uncorroborated evidence of a single witness, is to
cross-examine such person or have him cross-examined on the accused
person’s behalf. The great importance of cross-examination has already
been the subject of discussion by me in Maguire v. Ardagh [2002] 1 IR
385, at p.704. I do not want to lengthen this judgment by recapitulating
this material, but I wish to be taken as restating as what is said there at pp
704 to 707, particularly the observation (at p. 707) that cross-examination
“has been the means of the vindication of innocent people”.
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In the course of this passage I also said at p. 705:
“Cross-examination is a special skill and usually an acquired one, of which a thorough knowledge of the facts of a particular case is merely the foundation.”
Here, the Tribunal does not dispute that the appellants were
entitled, before being found guilty of obstruction or hindrance, to fair
procedures and specifically to the rights enunciated in Haughey. These
rights include, prominently, a right to cross-examination. Oral
contradiction in a public forum is the culmination of the work of the
cross-examiner but is by no means the whole of it. All effective cross-
examinations (especially in matters as wide ranging, and as old, as those
on the basis of which a finding of obstruction and hindrance were made
here), are the result of intensive preparation. Such preparation involves an
extremely thorough consideration of what precisely the witness is saying,
what the scope to contradict him from other sources is, and whether the
witness’s own credibility is vulnerable to attack. It would be positively
negligent of any professional cross-examiner to fail to consider what he
or she might hope to achieve under each of these headings.
Procedures of the Tribunal.
There was a time when the whole, or substantially the whole, of the
work of a Tribunal of Inquiry would take place in public. Though this
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may have had some disadvantages, and may have prolonged the sittings
(though to nothing like the extent which has since become common) it
had the advantage that all parties who had been granted representation
knew precisely what material the tribunal and its lawyers had. But this
custom has changed, to the point where certain modern Tribunals of
Inquiry can go for periods of months or even years without holding a
public sitting as they are conducting certain inquiries in private. Though
this may have some advantages, it has the drawback that (apart from
leaks) only the tribunal knows precisely what material has been gathered.
In the case cited several times above, O’Callaghan v. Mahon, a
complaint was made that though the tribunal had a good deal of material
highly relevant to the credibility of a witness making extremely damaging
allegations against Mr. O’Callaghan, this had not been disclosed to him
or to solicitors or counsel acting for him. In that case, the nub of the
complaint made when the material eventually came to Mr. O’Callaghan’s
knowledge was that his accuser had apparently given different accounts
of important and relevant events at different times. He also complained
that there had been a consistent practice of redacting, i.e. excising,
exclusively material damaging to his accuser’s credibility. This is a
feature of the present case as well.
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Mr. O’Callaghan issued proceedings by way of judicial review
claiming that he was entitled to see all statements that his accuser had
given to the tribunal and sought a declaration that the refusal to disclose
such statements amounted to a breach of fair procedures. The tribunal
resisted this and argued that the Court should not interfere with what they
did because they were “masters of their own procedure”. Mr.
O’Callaghan was successful both in the High Court and, on the tribunal’s
appeal, in this Court. It was emphasised in particular that, in the context
of a tribunal which conducts extensive inquiries in private, the right to
cross-examine is not vindicated simply by giving counsel for the party
attacked an opportunity to stand up and ask the witness some questions:
on the contrary, he or she must be given any material within the
knowledge of the tribunal which has the reasonable possibility of being
useful in cross-examination, simply because the material exists and is not
known to the parties accused since the tribunal has kept it confidential. In
the words of Geoghegan J. at p. 81:
“… it was absolutely essential that the documents and materials which were sought for the purpose of carrying out a worthwhile cross-examination in the extraordinary circumstances where wild allegations were flying around the tribunal against the applicant and of which he had no prior notice, be duly produced.”
This case is not precisely the same as the O’Callaghan case.
Because of the need to consider the reputation of the people involved,
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presumptively innocent people of good repute, only a very restricted
account of the materials now to hand here can be given. But there is no
doubt, and it has not been denied, that solicitors and counsel for the
Murphy interests sought copies of all statements by Mr. Gogarty made to
the Tribunal, or to third parties but which were in the possession of the
Tribunal. They were refused this. They were told expressly on several
occasions in writing that the then Sole Member (and not the present
chairman of the Tribunal) had personally decided that the materials which
had been redacted were “irrelevant”.
An examination of the correspondence which the Tribunal had with
the appellants’ solicitors shows that “any deletions in the transcripts have
been certified by the Sole Member as wholly irrelevant.” The Sole
Member himself remarked, in the transcript of the 8th July, 1999:
“That’s correct. I listened to the tapes. I had a transcript of the entirety of the verbal or the oral statements or whatever it is, evidence on the tapes. I listened to them, sorry I had a transcript, I listened to the actual tape, I had a red pencil and I blocked out pieces which I thought were of absolutely no relevance to [named person] or this Tribunal. It would, I suppose, be pejorative to say that the tapes in part followed a certain gentleman’s capacity. I cleaned, not the tapes, I cleaned the script, and I believe that I have done a reasonably fair job, I certainly didn’t cull anything that I thought could be of interest to any party in the Tribunal. Now that’s what you have got because there
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were other people mentioned, there was this, that and the other mentioned and…”.
Counsel for the Murphy interests, Mr. Cush, then suggested that
the redacted material be disclosed simply to one member of the
appellants’ legal team so that he could form a view on its utility and use it
where appropriate, but this request was denied. It must have been
perfectly clear that this decision stymied cross-examination.
I have to say that I simply do not understand the basis on which (to
take the simplest example) the allegation made about the other politician
was redacted. If the ordinary discovery rules applied, as expounded in
O’Callaghan v. Mahon, then anything capable of supporting the
appellants case or undermining that of their accuser should have been
produced. The question of the allegation against the other politician was
manifestly relevant as to the credibility both of Mr. Gogarty as to his
saying it, as to whether it had in fact come from the source he alleged,
and as to whether or not it was true. Moreover, it would appear to be an
allegation itself actually within the Tribunal’s remit: it is not obvious why
it was not disclosed on that basis. Moreover, it was actually linked to Mr.
Burke who was of course the subject of intensive investigations.
On the hearing of this appeal, counsel for the Tribunal (who had
not been involved as one of the counsel appearing for the Tribunal at its
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own sittings) said that he did not stand over the redaction and non-
production of the material in question. He said that “Bearing in mind the
decision of this Court in O’Callaghan, I am conceding that the document
should have been given to the Appellants.’’ By way of explanation he
said that Judge Mahon (presumably an error for Mr. Justice Flood)
thought that the documents in question were not relevant but in any event
he said that the documents were irrelevant to the judicial review
proceedings, even though it was in these proceedings that the documents
were eventually disclosed. He then referred to the Tribunal’s “need to
limit collateral credibility issues: they redacted the documents.” It is not
entirely clear to me how the last matters fit in with the concession
recorded above. And the allegation about the second politician, at least, is
not a “collateral” issue on any view. It was concealed without
justification.
It is noteworthy that before the Tribunal, in July, 1999, one of the
Tribunal counsel (Mr. Gallagher S.C.) appeared to rely on confidentiality
as a reason for non-disclosure. He said:
“[A named person who had apparently given tapes and transcripts of Mr. Gogarty to the Tribunal] agreed to furnish the material to the Tribunal for the assistance of the Tribunal on the very strict understanding that it would only have been available to the Tribunal and only relevant matters material and relevant to the Tribunal would be circulated.”
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In other words, the named person, who was a journalist, gave tapes
and transcripts of his conversation to Mr. Gogarty and notes of them to
the Tribunal but required a certain confidentiality which, in the Tribunal
Counsels view, prevented their disclosure to the parties Mr. Gogarty was
accusing. It is noteworthy that this defence or explanation of non-
disclosure was not offered on the hearing of the appeal and appears
wholly unstateable, particularly if reference is made to the judgment of
Geoghegan J. in O’Callaghan v. Mahon, where a plea of confidentiality
was advanced as a basis for non-disclosure. A witness cannot dictate how
a court or tribunal will treat his evidence, or any items he produces. The
interests of justice are paramount. It is also disturbing that the refusal of
Mr. Cush’s request for the undisclosed material was made after the High
Court decision in O’Callaghan v. Mahon. Accordingly, it could only be
justified on the basis that the Tribunal might have succeeded in its appeal
to this Court. But when its appeal was unsuccessful, the decision was not
reviewed. I find this very disturbing.
_____________________
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Statutory changes.
The present wording of s.6 of the Tribunals of Inquiry (Evidence)
(Amendment) Act, 1979, after its amendment by s.3 of the identically
titled 1997Act is as follows:
"(1) Where a tribunal or, if the tribunal consists of more than one member, the chairperson of the tribunal, is of opinion that, having regard to the findings of the tribunal and all other relevant matters (including the terms of the resolution passed by each House of the Oireachtas relating to the establishment of the tribunal or failing to co-operate with or provide assistance to, or knowingly giving false or misleading information to the tribunal), there are sufficient reasons rendering it equitable to do so, the tribunal, or the chairperson, as the case may be, may, either of the tribunal's or the chairperson's own motion, as the case may be, or on application by any person appearing before the tribunal, order that the whole or part of the costs—
(a) of any person appearing before the tribunal by counsel or solicitor, as taxed by a Taxing Master of the High Court, shall be paid to the person by any other person named in the order.
(b) incurred by the Tribunal, as taxed as aforesaid, shall be paid to the Minister for Finance by any other person named in the order”.
The resolution establishing the present Tribunal, as passed in Dáil
Éireann on the 7th October, 1997 contains the following paragraph in
relation to costs:
(C) (a) -
(b) all costs incurred by reason of the failure of individuals to
cooperate fully and expeditiously with the Inquiry should, so far as
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is consistent with the interests of justice, be borne by those
individuals.”
_______________________
Vires.
It will be observed that neither the statute, nor the resolution of
Dáil Éireann, request or require the Tribunal to investigate questions of
“obstruction and hindrance”. This is critical. It is simply not part of the
Tribunal’s remit. Insofar as the question of costs are concerned, it would
have been quite possible to make a finding, if the Tribunal considered the
evidence supported it, that there had been a lack of cooperation on the
part of any named parties. This is what was done in the case of other
parties. Instead, the Tribunal appears, on the basis of the evidence set out
above, quite consciously and deliberately to have used the words
“obstruct and hinder” in the full knowledge that this was the identical
phrase used to constitute one of the criminal offences capable of being
committed in relation to the Tribunal.
Equally, the wording of s.6 of the 1979 Act, as inserted by the
1997Act, speaks (in the context of costs), of a “failing to co-operate”. It is
not obvious why the Tribunal felt impelled to go further than this when
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their only concern with the conduct of the parties (as opposed to their
actions in the substantive matter under inquiry) was in relation to costs.
This Tribunal’s course of action is also at variance with that of the
McCracken Tribunal, which also sent the papers in relation to how a
particular person had interacted with the tribunal to the Director of Public
Prosecutions. That tribunal, in taking the step, made no finding in relation
to obstruction or hindrance but rather left the Director of Public
Prosecutions to make up his mind whether or not to prosecute without
any unnecessary Tribunal finding in relation to a criminal offence.
I do not believe that the expression by Dáil Éireann of the desire, in
relation to costs, expressed at para (C), sub-paragraph (b) of the
Resolution of the 7th October, 1997, in any way authorises or entitles the
tribunal to make findings of the commission of a criminal offence other
than findings which relate to the “definite matters of urgent public
importance” set out at para. (A) of the Resolution of the 7th October,
1997. Insofar as it might be argued that the statutory provisions quoted
above, from the Acts of 1979 and 1997 in relation to costs or sub-
paragraph (b) of paragraph (C) of the Resolution imply such a power, I
would decline to accept this. The statutes and Resolutions are expressed
quite otherwise insofar as “obstruction and hindrance” are concerned and
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do not require a finding that these things have in fact occurred for the
exercise of any legitimate discretion the Tribunal has in relation to costs.
For the reasons set out earlier in this judgment, I believe that the
dictum of McCarthy J. cited above from the case of Goodman v.
Hamilton continues to represent the law. For the reasons set out above I
am wholly unimpressed by the tripartite challenge to it: on the contrary, I
believe that McCarthy J. was conscious of a possible weakness in this
Court’s and the High Court’s approach to the constitutionality of the
tribunal, in the form of an argument that the costs jurisdiction prevented
its substantive findings being “devoid of legal effect”. He found as he did
in a necessary attempt to attribute to a tribunal under the 1921 Act as
amended procedures which were themselves both fair and constitutional.
If his judgment were to be attacked, it might more easily be done, in my
opinion, on the basis that it is scarcely possible to regard the present costs
jurisdiction (created in part many years after the judgment of McCarthy
J.) as meaning that the tribunal’s findings are “devoid of legal effect.”
On the basis of Goodman v. Hamilton, the order refusing costs in
this case must fall since, apart from anything else, it is plainly based in
part on the substantive findings of the tribunal. It is not possible to sever
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this order because the tribunal itself has not made it clear to what portion
of the costs the findings on the substantive issues refer.
I am also of the view that the appellants’ complaints to the effect
that they were not put on notice that the Tribunal was considering making
the finding of obstruction and hindrance, and that this was not
communicated to them even when their solicitors specifically raised in
correspondence the topic of the matters required to be addressed in the
costs phase are borne out. Indeed, this is not disputed. Such notice was
manifestly necessary, especially in light of the significance the tribunal
placed on this finding in refusing costs.
I agree with the judgment of Fennelly J. in relation to the defence
based on an alleged delay on the part of the applicants and I would reject
the tribunal’s contentions in this regard, for the reasons which he gives.
I also consider that the appellants’ complaint about non-disclosure
of relevant material to them has been substantiated. Despite Mr. Collins’s
submission to the contrary. I believe that this complaint is relevant on the
judicial review. This is by reason of the fact that the particularised
findings of obstruction and hindrance arise directly and without more
from the findings on the substantive issue, and the concealed material
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relates directly to these latter findings, because it relates to the credibility
of Mr. Gogarty.
However, I do not believe that it would be proper or feasible for
the Court to interfere with the decision on the substantive issue simply
because the appellants, for reasons which seem to them sufficient, have
not asked the Court to do so. But the concealment clearly, and quite
expressly, fed into the “obstruction and hindrance” findings, which was a
major cause of the Order refusing costs.
I have read with great interest the quotations in the judgment of
Fennelly J. cited above from a leading English authority on
administrative law in relation to Tribunals of Inquiry. As stated above, I
agree with them. This Tribunal manifests two features of a tribunal of
inquiry which are, in my opinion, fraught with great risks for justice. The
first is that the investigative function - that carried out by the gardaí in
relation to criminal matters - and the adjudicative function, or the
function of making findings - that carried out by the Courts in criminal
matters - are, in the case of a tribunal, conferred on a single body or even
(as here before the retirement of the former Sole Member) on a single
person.
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The second risk is a corollary of the latter fact. An investigator in a
case where there is only one witness to support allegations made, whose
evidence is subjectively accepted by the investigator, may become so
invested in that one witness as to become blind or insensitive to things
which raise doubt as to his credibility. I believe that this is what happened
in the case of O’Callaghan v. Mahon, cited above, and that it may well
have happened here. It is a common phenomenon: in the well known
miscarriage of justice case referred to as that of the “Guilford Four”, the
investigating police officers were actually in possession of evidence
providing an alibi for one of the four. But they had become so convinced
of their guilt that they decided the alibi could not be reliable and
concealed it. The Guilford Four spent over two decades in jail.
The foregoing illustrates the absolute centrality of proper
disclosure to any approach informed by fair procedures. Evidence or
material which has even the potential to be useful to the person accused
in making his own case or in undermining that of his accuser must be
furnished to him. The use to be made of such material is a matter, not for
the investigators, but for the person accused and his chosen
representatives. It is for that reason that an extremely low threshold for
disclosure of material should be applied.
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These concerns are amplified in my mind by a number of others.
The Tribunal deliberately and consciously embarked on an inquiry, and
arrived at conclusions to the effect that certain of the appellants had
committed acts of obstruction and hindrance which were (a) outside its
remit and (b) unnecessary to any function it had to perform. It did so in a
context where it positively emphasised that these matters were criminal
offences. Secondly, it was agreed on the hearing of this appeal that the
Tribunal had resolved every single conflict of fact against the appellants.
Thirdly, they withheld material from them which it is now admitted
should have been disclosed and in doing so knew (as any lawyer must
have known) they were gravely hampering the appellants in making their
defence.
There is sometimes a tendency to be a little suspicious of persons
who take legal proceedings against Tribunals of Inquiry on the basis that
this itself is an act of obstruction. I do not agree with this. It is salutary to
remember that the concealed materials would never have come to light in
this case had the appellants not taken these proceedings. It is chilling to
reflect that a poorer person, treated in the same fashion by the tribunal,
could not have afforded to seek this vindication.
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I wish to emphasise that the fact of statutes creating certain
offences capable of being committed only in relation to a person’s
interaction with a tribunal does not mean that the tribunal in question
itself has a jurisdiction to enquire into whether a person has acted in the
manner proscribed by the statute. On the contrary, that is exclusively a
matter for the criminal courts, where the criminal onus of proof would
apply and where, unless the offence alleged is a minor one, there will be
an entitlement to trial by jury. It is a fundamental error to think that,
because an offence in its terms is created in relation to a tribunal, that the
tribunal is therefore authorised or entitled to make a finding that the
offence has been committed, whether or not such finding is regarded as
binding on any other court or tribunal.
None of the foregoing implies that there is not an entitlement to
establish a tribunal to inquire into whether criminal acts have been
committed, whether by a named person or not. As to whether (as the
appellants submitted) such an inquiry would require a heightened
standard of procedural protection for a person suspected of committing
what amounts to a criminal offence, that is a point I would leave over, as
being unnecessary to decide here. I prefer to deal with this matter on the
narrower but sufficient ground that this particular tribunal as constituted
simply had no power to inquire into the question of “obstruction and
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hindrance” and, even for the purpose of costs, could have discharged its
function quite adequately by simply considering the question of
cooperation. I cannot agree with the learned trial judge that the distinction
between a finding of a failure to cooperate, and a finding of obstruction
and hindrance is a mere matter of degree: that this is not so is evident
from the Tribunal’s repeated references, quoted above, to obstruction and
hindrance as being a criminal offence, and as something involving other
serious consequences. The Tribunal, for whatever reason, wanted to make
a finding of criminal misconduct against the Murphys and did so. But it
had no need, and no power, to make the specific finding made.
Accordingly, on the substantive grounds that the findings on
obstruction and hindrance are simply outside the terms of reference of the
Tribunal, and on the several procedural grounds mentioned above, I
would quash the decision on the 9th November, 2004 whereby the
application of the appellants for their costs was refused.
Having done this, I do not propose to proceed to consider the
appellants’ claim that s.6 of 1979 Act as it now stands is unconstitutional.
It is unnecessary to do so and it has long been the practice to avoid
pronouncing upon such a constitutional question where there is no need
to do so to resolve the issues in a particular case. I would however
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observe that, in Goodman, so much cited above, the constitutionality of a
Tribunal of Inquiry, at least one which enquires into matters which may
reveal or constitute a criminal offence by some person, was established in
a particular and very specific way. This was on the basis that the findings
of a tribunal have merely the status of opinions and that such opinions are
“devoid of legal consequences” and do not impose any liabilities or affect
any rights. They are “sterile of legal effect”. In the judgment in which the
latter phrase is to be found, that of Brennan J. in Victoria v. Australian
Building Construction Employees Federation, cited above, it is
followed by the apparently explanatory phrase (at pp. 152 to 153) where:
“It is not the nature of the facts to be found, but the legal effect of the finding which may stamp an inquiry as judicial… the absence of any legal effect in the findings of the Royal Commissioner appointed merely to inquire and report denies any suggestion that such a commissioner is exercising judicial power.”
Accordingly, in 1992 a challenge to the constitutionality of a
Tribunal of Inquiry was rejected on the grounds that its “findings” were
merely opinions, devoid of legal effect. They were merely opinions,
given “in vacuo”.
There have been changes since then, notably in the form of the
statute of the 1979 Act as amended. This appears to elevate the “findings”
of a tribunal into a matter to be taken into account on the question of
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costs - whether a party can receive his own costs or be made to bear the
costs of others. Whether a finding of this sort is “devoid of legal effect” is
a matter which does not arise here, because of my decision that the
impugned costs decision falls to be quashed on other less far reaching
grounds, but will undoubtedly arise at no very distant date. In Maguire v.
Ardagh, cited above, I discussed at some length whether it was at all
realistic to describe the finding of an Oireachtas Committee in relation to
a possible unlawful killing as merely an “opinion”. I now merely refer to
this discussion again and to the observations on the meanings of words
such as “finding” contained therein.
It is certainly within the power of the legislature to make provision
for an award of costs before a Tribunal of Inquiry. It did this in 1997 and
had done so previously in 1979. But whether this new power, conferred
on a tribunal which provides for the individual notably attenuated
procedural safeguards by comparison with those available in a court is
consistent with the Tribunal’s established constitutional status which
depends on its “findings” having the status merely of opinions and being
“devoid of legal effect” is manifestly doubtful. But the issue does not, in
my opinion, arise directly in the present case so I propose to abstain from
expressing a concluded view on it.