Judge tells Smyth he should reveal conversations with Haughey

THE chairman of the Tribunal of Inquiry (Dunnes Payments), Mr Justice McCracken, has ruled that Mr Ben Dunne's solicitor, Mr Noel Smyth, should reveal details of conversations he had with Mr Charles Haughey concerning the tribunal.

Also yesterday counsel for Dunnes Holding Companies and subsidiaries, said he believed the Pounds 1.3 million given to Mr Haughey still belonged to Dunnes Stores. "Of course we also claim return of the Pounds 1.3 million," Mr Garrett Cooney SC told the tribunal.

Mr Haughey furnished a statement to the tribunal yesterday which was received just minutes before the tribunal went into session. After discussion over who should have sight of the statement, the tribunal was adjourned until 10.30 a.m. today in order to allow counsel for the tribunal time to read the document.

Counsel for Mr Haughey, Mr Eoin McGonigal SC, said he would not be contesting the issue whether Mr Dunne's solicitor, Mr Smyth, should disclose the content of conversations he (Mr Smyth), had with Mr Haughey.

The sealed statement which Mr Smyth made subsequent to the conversations and posted to himself was also given to the tribunal yesterday. Mr Justice McCracken said he was directing Mr Smyth to answer any questions in relation to the matter.

Earlier, Mr Denis McCullough SC, for the tribunal, said they had been expecting a statement from Mr Haughey last Friday evening, but it had just been handed to them now. They would like some time to consider it.

In addition, he understood from Mr McGonigal that there would be no issue in regard to the confidentiality of the conversations Mr Smyth had with Mr Haughey. Mr Haughey would not be raising any issue in relation to confidentiality, "although there may be an issue in relation to those conversations of another kind", Mr McCullough said.

The envelope containing the statement made by Mr Smyth, concerning the conversations between himself and Mr Haughey, had now been handed to the tribunal team by Mr McGonigal and they would like time to consider its contents. They would also like time to consult with counsel for the public interest.

In those circumstances his application was that the tribunal be adjourned until 10.30 a.m. today to enable these matters to be considered fully. "And I think very important issues arise in relation to these documents."

The chairman: "Mr McGonigal, you re withdrawing the objections that you made?"

Mr McGonigal said he wanted to make it absolutely clear the issue of confidentiality was one that arose when he was not present. The adjournment he had sought had been one to consider the position. "I, in fact, never raised the issue of confidentiality and I am not raising the issue of confidentiality.

"Any conversations which took place between Mr Smyth and my client were private, but the issue of confidentiality never arose during those conversations, Mr Chairman."

Mr McGonigal said he meant confidentiality in the legal sense. The chairman said he was quite correct, of course. It was Mr Smyth who had raised the issue.

The chairman said Mr Smyth had asked for a direction from the tribunal in relation to these matters. Mr McCullough said he was asking that Mr Justice McCracken direct that the tribunal team be permitted to examine the contents of the documents.

Mr Justice McCracken said he was directing that Mr Smyth must answer any questions relating to these matters. Presumably Mr Smyth had no objection under those circumstances to the contents of his statement being shown to the tribunal. Mr Smyth, who was present, said he had no objection.

The chairman asked what was the position relating to the public interest. Counsel for the public interest, Mr Edward Comyn SC, said now he had heard Mr McGonigal, and in view of the fact that the only possible privilege there was had been waived, it seemed clear that Mr Smyth should give evidence and his statement should be made available to the tribunal.

The chairman said he knew this was one facet of the inquiry on which Mr Comyn had been prepared to make a legal argument and he thought he (the chairman), should make that quite clear.

Mr Comyn said from the point of view of the public interest the statement given by Mr Smyth was really part of the statement he gave to the tribunal except that he thought, pending a direction, he should retain it. But it now was part of the statement he had given the tribunal and should be treated as such.

Mr Seamus McKenna SC, for Mr Dunne, said he supported the application for an adjournment. He asked that he be given a copy of Mr Haughey's statement in so far as it was relevant to Mr Dunne's evidence or that of Mr Smyth.

Mr McGonigal said he had no objection to this, but one of the things which the tribunal would now have to consider was whether Mr Smyth should now be a party to the proceedings in his own right and therefore entitled to separate representation.

The chairman said whether Mr Smyth should have separate representation was a matter for him and he presumed he could only make a decision on this when he had seen Mr Haughey's statement. "I haven't seen it so I can't really comment."

The chairman said he agreed with Mr McKenna. In so far as Mr Haughey's statement concerned conversations with Mr Smyth, Mr Smyth should be given it.

Mr McGonigal said he had no objection. "He knows the conversation that took place between the two of them."

Mr McKenna said as well as the relevant part of Mr Haughey's statement, any discovered documents relevant to the issue should be included.

Counsel for Dunnes Holding Companies and subsidiaries, Mr Cooney, said he believed Dunnes Stores Ltd should also be furnished with a copy of Mr Haughey's statement. Presumably the statement dealt at least with the evidence of Mrs Margaret Heffernan in relation to her conversations with Mr Haughey.

In those circumstances they would be entitled to see it. "And of course we also claim return of the Pounds 1.3 million which was paid to Mr Traynor for Mr Haughey's benefit." On those two grounds they should be allowed see Mr Haughey's statement.

The chairman: "Well, you seeking the return of the money is not part of my function.

Mr Cooney said he understood that, but the fact was the receipt of the money has been denied and they would like to see what was being said about that in the statement.

Mr McCullough said it seemed to him the only circumstances under which Mr Cooney's clients would he entitled to the statement would be if it reflected on the good name and reputation of his clients.

Chairman: "Well, Mr McCullough, the money paid by Mr Dunne, to put this in a neutral way. It's acknowledged by Mr Dunne as well as Dunnes Stores that it was money effectively be longing to Dunnes Stores." Surely they had an interest in knowing what happened to their money?

"It's not so much affecting their good name, but they may well wish to cross-examine."

Mr McCullough said certainly if the statement did affect the interests of Dunnes Stores they should have a copy of it.

Mr McGonigal, asked for his opinion, said a view should first be formed by the tribunal team having read the statement and the document. If the team then felt it was appropriate to "distribute the statement of Mr Haughey to all and sundry, so be it".

The chairman said it was his understanding that Mr Haughey's statement had been handed over literally five minutes ago and no one had read it. He said to Mr Cooney, for Dunnes, that once everybody knew what was in the statement, if his rights appeared to be affected by it, then he would be given a copy of it or extracts at any rate.

Mr Cooney said: "The money paid to Mr Haughey belongs to my client and on that basis alone I think we are entitled to see what he says in his statement." There is a particular issue of fact arising in this case concerning Mrs Heffernan's visits to Mr Haughey.

Mr Cooney said presumably he would be entitled to cross-examine Mr Haughey at the appropriate time. He thought they should be furnished with a copy of Mr Haughey's statement to assist them in that.

Mr Justice McCracken said he would not like to be seen to be agreeing with Mr Cooney's statement that it (the Pounds 1.3 million), was Dunnes Stores money. It was paid out of money that belonged to Dunnes Stores.

"What its legal position is now is for somewhere else, Mr Cooney."

Mr Cooney said it was generated by the business activities of Dunnes Stores and to that extent it belonged to his clients.

Chairman: "It did belong to your client, Mr Cooney."

Mr Cooney: "It may once again, Mr Chairman."

The chairman said he would not direct that Mr Cooney be given the statement until he (the chairman), had seen it. He said the probability was Mr Cooney would be given so much of the statement as affected his client. He was certainly not entitled to be furnished with the entire statement, at least he would assume not.

The chairman said it could well be that further inquiries might have to be made because of matters set out in Mr Haughey's statement. If parts of the statement were to be furnished to people this should be done perhaps by 2 P.m.

The tribunal adjourned until 10.30 a.m. today.