THE Tribunal of Inquiry (Dunnes Payments) has the power to summons any individual it believes can help with its inquiry according to a senior legal expert. The biggest question raised by the first three days of the tribunal is whether the former Taoiseach, Mr Charles Haughey, is such an individual.
On the evidence so far, if there is anybody who can help with this inquiry it is Mr Haughey. Each day his financial affairs while Taoiseach have been aired. He has written to the tribunal denying that he received any money from Mr Ben Dunne.
If a person refuses a summons without just cause or excuse he/ she would he guilty of an offence under the Tribunals of Inquiry (Evidence) Act. They could he tried in the District Court under the Act, and if convicted on indictment, fined a maximum fine of £10,000, imprisonment for two years, or both.
The summons would have to be served personally by the tribunal officials on any witness who does not respond to an invitation to attend. The tribunal has written to Mr Haughey twice offering him legal representation. So far, that offer has not been taken up.
One "just cause or excuse would be a claim that a person was medically unfit to attend. In this scenario the tribunal could request a medical certificate to that effect or order that its own medical experts examine the witness.
If a witness does agree to attend, the tribunal does not have the power to compel them to answer any questions that might incriminate, according to the expert.
A witness could appear and only answer the question "what is your name?", refusing to answer any further questions on the grounds that it could incriminate them.
The expert said it was difficult to understand why Mr Haughey had not enlisted a legal team to appear on his behalf and contest Mr Dunne's evidence.
A witness has to appear in person at the tribunal if summonsed.
There's no point in writing in letters to a tribunal. It is a sworn inquiry."
If the evidence so far remains uncontested, the tribunal would "find it hard to make a finding other than in accordance with the evidence".
The tribunal report will be referred to the Oireachtas. Under the Act, any evidence given to the tribunal cannot be used in criminal proceedings against any individual. And any charges must be proved separately and "beyond reasonable doubt" in court.
The evidence relating to the late Mr Des Traynor would not be admissible in a criminal trial, as it would be regarded as hearsay.
Tribunals of Inquiry (Evidence) Acts 1921 and 1979
If a person:
(a) on being duly summoned as a witness before a tribunal, without just cause of excuse disobeys the summons, or
(b) being in attendance as a witness refuses to take an oath or to make an affirmation when legally required by the tribunal to do so, or to produce any documents in his power or control legally required by the tribunal to be produced by him, or to answer any question to which the tribunal may legally require an answer, or
(c) wilfully gives evidence to a tribunal which is material to the inquiry to which the tribunal relates and which he knows to be false or does not believe to be true, or
(d) by act or omission, obstructs or hinders the tribunal in the performance of its functions, or
(e) fails, neglects or refuses to comply with the provisions of an order made by the tribunal, or
(t) does or omits to do any other thing and such doing or omission would, if the tribunal had been the High Court, have been contempt of that Court, the person shall be guilty of an offence.
Penalty on conviction: A fine not exceeding £10,000 or, at the discretion of the court, to imprisonment for a term not exceeding two years or to both such fine and such imprisonment.
