Mr James Gogarty was a "malicious and artful liar" and that would be the case JMSE would put, the tribunal heard yesterday.
Mr Michael Cush SC, for JMSE, said: "He [Mr Gogarty] would have had two weeks of the stage, and a stage he used to damage my clients. Another thing about Mr Gogarty, sir, is that whilst his health is obviously frail, and he has quite properly been accommodated in that regard . . . but when it comes to mental ability, sir, I don't think anybody in this room suggests that Mr Gogarty needs protection.
"He has demonstrated a tremendous grasp of facts going back a long time. An ability to marshal them in a way that suits his case. He has a great sense of timing and remark. A keen eye on a headline. He is a very accomplished witness. He doesn't require the protection of this tribunal beyond that which has already been afforded."
Mr Cush, making replying submissions on the cross-examination issue, said there was no basis laid against his client for the ruling sought. It was the intention of his client to co-operate. On the first public day of the tribunal his client asked for legal representation and told the chairman of its position in relation to Mr Gogarty and his allegations concerning Mr Burke.
"They told you, sir, on that occasion, that yes, the money was money belonging to my clients, but that it had been paid out without their knowledge and without their authority. That, sir, was their basic position in relation to Mr Burke's payment or receipt of payment," he said.
They also stated that Mr Gogarty was the only person to make allegations and they asked for details of the allegations. They wanted to see the allegations against them before they responded. They were also concerned that reports were circulated in the media. They knew that these leaks were not from the tribunal, and they had never suggested that.
The chairman said that that had not been made clear and asked if that was his position today. Mr Cush said it always had been.
He said that nobody had said what was wrong with the statements furnished by his clients. The chairman asked was it their position that, as Mr Gogarty made the allegations, they wished to respond by saying it was not true and that was the end of their case as far as they were concerned. "On the instructions of my clients, let's be quite clear, Mr Gogarty is a malicious and artful liar, sir, and that is the case we'll be putting to Mr Gogarty," said Mr Cush.
The chairman said: "So the defined issue here today as between you and Mr Gogarty. He is an artful liar."
Mr Cush said: "Malicious and artful liar."
The chairman said: "Let me not in any way reduce the quality of your expression."
Mr Cush said it was up to the chairman to decide who was telling lies in relation to the meeting with Mr Burke.
The chairman: "And you had no hand, act or part in, shall we describe it as the delivery of the package?"
Mr Cush said: "Absolutely, sir." In correspondence they had made that abundantly clear. The core issue was the findings the chairman made regarding the payment to Mr Burke. "If you accept Mr Gogarty's version, you will have concluded that my clients are liars. They are guilty of bribery and corruption.
"If you conclude that what Mr Gogarty had said is untrue when he involved my clients, you can only conclude that he is telling deliberate and malicious lies. There is no room for suggesting that Mr Gogarty might be mistaken, no room whatsoever."
In his affidavit, Mr Gogarty said that Mr Joe Murphy jnr initiated the plan to pay Mr Burke, initiated the securing of monies, told Mr Gogarty to count out the money, sat in the front seat of the grey Mercedes, handed the envelope to Mr Burke, made certain remarks. That could not be a mistake on Mr Gogarty's part.
"If you contrast that with what Mr Murphy jnr said, he says: `I was not there. I knew nothing about it. I never had such a conversation. I knew absolutely nothing about a payment to Mr Burke'," Mr Cush said.
Three weeks after the allegations of bribery of Mr Burke, the Murphys committed themselves to the sale of land for agricultural value.
Mr Cush said his client said that what Mr Gogarty said was an entire fiction.
If his clients were right, if Mr Gogarty was a malicious and artful liar, it would be a pointless exercise to give a malicious and artful liar the opportunity to see the questions [for cross-examination], he said.
Mr Cush said that it was very hard to establish a negative and Mr Gogarty had failed to say when it [the alleged meeting with Mr Burke] happened. On December 16th, they furnished six statements. The tribunal had not told them on what issues they were not being entitled to cross-examine.
Mr Cush said: "I'm not here to make a case, I'm here to meet a case."
His clients had never made allegations against Mr Gogarty. They stood as the accused. What the chairman was suggesting on cross-examination was entirely novel. Other tribunals in the past had never felt the necessity to restrict. The tribunal had taken Mr Gogarty's evidence out of turn because of poor health. To suggest that Mr Gogarty be put off for cross-examination at some time in the future was totally inconsistent and ran the risk of him not being available for cross-examination.
He proposed that they just get on with the tribunal.
"Any suggestion of deferring the cross-examination and engaging in an I-stepped-in-again-up-here musical chairs, with witnesses coming and going, its a farce. It won't work. It's a disaster," he said.