Mr Michael Bailey and his legal team were unaware of the nature and entirety of the allegations against him, Mr Eamonn Leahy SC, counsel for Mr Bailey and Bovale Ltd, said yesterday.
Mr Leahy said the essential legal point under debate was whether the traditional right to cross-examine should be altered to provide prior notice.
He told Mr Justice Flood: "We urge that you keep this tribunal on the well-travelled constitutional tracks laid down by tribunals before." They should follow the route mapped out by the Chief Justice, Mr Justice Hamilton, in the beef tribunal and by other Supreme Court cases.
Mr Leahy said his clients sought no novel indulgence, no different path. They asked that the tribunal be conducted in the way that tribunals had always been. They asked for the same procedure in the cross-examination of Mr Gogarty, as adopted at the beef tribunal. "We ask only that we be limited in the ordinary way, requiring our questions to be relevant and in good order," he said.
"Cross-examination is there in order to allow people to defend and vindicate their good name and is a constitutional right . . . the right to confront our accuser promptly, on him assessing his direct evidence, is a constitutional right," Mr Leahy said.
"We say there is no reason why a special and novel route should be mapped out by this tribunal," said Mr Leahy. "We say let Mr Gogarty be confronted by the truth, without notice or special consideration, by proof in the ordinary way as it has by tribunals in the past," he said.
They fully accepted that Mr Gogarty's evidence was taken out of turn. One of the consequences was that they were at the stage where Mr Gogarty had been giving evidence for a number of days, he said.
"Mr Bailey and his legal team are as yet unaware of the nature in toto of the allegations being made against them. We have heard Mr Gogarty's evidence of the journey to Mr Burke's house. Is it part of what is being suggested that on foot on what Mr Gogarty alleges happened there, that subsequently there was some corrupt or improper endeavour to procure planning permission for some or all of the lands?"
They had a real and genuine difficulty. They were in the position that nobody had told them the entirety of the allegations made against them.
"We want to confront Mr Gogarty and we want to do it without prior notice. We say we have a constitutional right. It is a valuable constitutional right we say we are not prepared to waive," he said.
"Fettering or shackling of cross-examination is not constitutionally permissible," he said. "I listened to Mr Callanan indicating that in his view part of what occurred today, and he spoke colourfully, I understand, was an `unedifying striptease'. There can be few sights intellectually more disturbing than Mr Callanan's intellectual gooseflesh as he rambles around in the undergrowth seeking a fig leaf to cover the embarrassment he feels he is going to suffer. Let his client give evidence in the normal way. Let Mr Callanan stand up without the fig leaf and show us whatever it is his client says is there to be displayed," said Mr Leahy.
"Our desire and duty are to defend our client's constitutional rights," he said.
"Let us put to him in cross-examination the matters we want in the traditional way," he said.
"We don't know the list of witnesses, who's next, how many, and the time table, even approximately, subject to revision. As it presently stands, it is an impromptu version of Lanigan's Ball. We have no idea who will step in and who will step out," he said.