The taking of Mr Joseph Murphy snr's evidence began in private yesterday after the chairman ruled that to require the witness to undergo a risk to his life and health in a public hearing would be a deprivation of his rights.
The tribunal chairman said he had heard medical evidence that Mr Murphy had a fear, probably irrational, that the media would be present and this anxiety could cause heart failure. He said he had to balance the constitutional rights of the freedom of the press and the constitutional rights of Mr Murphy.
Mr Justice Flood set up the hearing as a commission, with himself as commissioner, stating that the evidence would remain private until it was received and duly considered by the tribunal and read into the record at a public sitting in Dublin Castle. Yesterday, before Mr Murphy arrived, the chairman ruled on submissions by the media that he consider a proposal to transmit the proceedings by a video-link to another room in the building to which members of the press would have access.
This proposal was submitted by Mr Bill Shipsey SC, for RTE and Independent Newspapers, in lieu of members of the press being present in the tribunal room where Mr Murphy would give evidence.
Mr Shipsey had submitted that the chairman had an obligation to ensure the rights of the press under Article 40 of the Constitution were protected, that the tribunal was public and that any sitting as a commission must take into account the constitutional rights of the press. He also submitted that the medical condition of a potential witness was insufficient to tip the balance in his favour.
The chairman said that Mr Shipsey in his argument on the constitutional issue had been entirely partisan. He had failed entirely to take into account the constitutional rights of Mr Murphy which provided that the rights of the citizen should be defended and vindicated.
The Constitution also provided that the State should protect from unjust attack the life, person, good name and property rights of every citizen. The chairman said Mr Murphy had a constitutional right as a citizen to defend his good name. "In considering this aspect of his rights I must consider whether the tribunal should require him to embark on a course of action which could lead to serious injury to him and involve, possibly, his actual death in the course of exercising his constitutional right," the chairman stated.
He said that he had carefully considered the evidence of two doctors, Dr John Curran, a medical practitioner, and Dr Ronnie Vincent Browne, a psychiatrist. "In the light of the medical evidence that I have heard I consider it would appear necessary to make an order for the examination of Mr Joseph Murphy snr on oath by way of commission," he stated.
In reaching this decision, he had given full consideration to the constitutional rights of the freedom of the press under Article 40 and full consideration to the constitutional rights of Mr Murphy under Article 40.3.1 and 2 to vindicate his life, person and good name.
In reaching his decision not to require Mr Murphy to expose himself to what in his case would be an ordeal of appearing before the tribunal in public with the press present, he had balanced the respective rights. "In my opinion, to require Mr Murphy to undergo a risk to his life and health to justify and vindicate his good name would be an unwarranted imbalance and in fact a deprivation or at minimum impairment of his rights," the chairman ruled.