An application to cross-examine Mr James Gogarty on behalf of the Garda Siochana was refused by Mr Justice Flood at the planning tribunal yesterday.
The chairman ruled that since Mr Gogarty had "clearly and unequivocally" retracted any allegation of wrongdoing against the gardai, there were no grounds for allowing his cross-examination by Ms Nuala Butler, for the Garda Siochana.
Ms Butler, who has been represented at the tribunal since the start, made the application because of specific allegations made by Mr Gogarty during the tribunal and before it began.
In the past, Mr Gogarty raised his concerns about the Garda with a number of TDs and journalists. In particular, he was angry that Det Sgt Bernard Sherry of Howth Garda station did not send the file on alleged intimidation by Mr Joseph Murphy jnr to the Director of Public Prosecutions.
In his affidavit, however, Mr Gogarty stated only that he came to the belief that "improper influence" was brought to bear on the Garda in the matter. And in his direct evidence, he said he did not believe that he had ever implicated a specific member of the Garda. In withdrawing his allegations against the Garda in general, he said that if he had been told the reason why his file was not sent to the DPP in 1994 he would have accepted it.
He said he now believed that Det Sgt Sherry made an "error of judgment" on the issue.
In a letter to the tribunal, the Chief State Solicitor accepted that Mr Gogarty had withdrawn his allegations against the Garda but said the basis on which he had done so was unsatisfactory.
Mr Justice Flood said this left gardai in a position where there was no allegation against them. Therefore, there were no matters relating to the Garda and its reputation which needed to be vindicated by cross-examination.
The chairman said there was no factual basis whatsoever for suggesting that Det Sgt Sherry acted other than properly in his investigation. There was no suggestion of impropriety on the part of Det Sgt Sherry or any other garda, and therefore correspondingly no requirement to vindicate the good name of the office.
Such a cross-examination would not advance the work of the tribunal as defined in the terms of reference, he said. "It would be a wholly fruitless exercise and a misuse, in my opinion, of the tribunal's time."
Ms Butler responded to the chairman's ruling by saying that he had inaccurately represented her case. She had not said she did not intend challenging the credibility of the witness; rather, she promised not to embark on any line of questioning "solely for the purpose of undermining the credibility of the witness".
She asked whether the ruling meant that the right of representation had been withdrawn from the Garda. In addition, she asked the chairman to confirm that Mr Gogarty would not be allowed make any further comment on or criticism of the Garda from the witness-box.
The chairman said he regretted that his quotation of Ms Butler's submission had been "less than accurate". He said he would do his best to prevent people from using the tribunal to make statements of any kind, in so far as one could control witnesses in the witness-box.
He was not withdrawing any representation granted to the Garda. This was a matter for Ms Butler and her instructing solicitor.
The tribunal was adjourned until 10 a.m. on Monday.