Mr Justice Moriarty has ruled the immediate continuance of the tribunal will not prejudice the right of Mr Charles Haughey to a fair trial in the criminal proceedings he faces.
Counsel for Mr and Mrs Haughey yesterday wanted the tribunal adjourned until criminal proceedings against Mr Haughey relating to his alleged obstruction of the McCracken tribunal were completed.
Mr Paul Gardiner SC said Mr Haughey's constitutional right to a fair trial was paramount and overruled the right of the community to inquire into the matters before the tribunal.
Mr Justice Moriarty accepted great care would have to be taken to ensure Mr Haughey's constitutional rights were protected. It was not ideal the tribunal and criminal cases should be at the same time.
However, he was "very far from being persuaded" Mr Haughey's right to a fair trial would be impeded by the tribunal's immediate public hearings.
Mr Justice Moriarty said: "It seems to me, having regard to the desirability of this inquiry proceeding to fruition, that significant grounds would be required to persuade me that there was a real risk of jeopardy of a less than fair trial.
"I am not so persuaded. I accept that care will have to be taken as regards the further stages of the criminal process against Mr Haughey, but I am not of the view that by proceeding on the lines which are proposed today, Mr Haughey is likely to have his constitutional rights to fair and just process jeopardised."
As the tribunal resumed at Dublin Castle yesterday morning, Mr Gardiner said he was seeking an adjournment to the sittings of the tribunal on behalf of Mr and Mrs Haughey until the conclusion of criminal charges which he faced.
Mr Gardiner said Mr Haughey's criminal case would involve witnesses whom the Moriarty tribunal intended to call as witnesses. These were Mr Ben Dunne and Mr Noel Fox.
Although the Moriarty tribunal did not intend to call Mr Justice McCracken, the contents of his report into Dunnes payments would "obviously be central to those charges".
Mr Haughey had been the subject of "unremitting media attention" since 1996, which had become "somewhat frenzied" before Christmas in relation to the decision by the appeal commissioners in favour of Mr Haughey, said Mr Gardiner.
"We would be concerned that the inevitable media comment that will arise out of this tribunal and particularly arising out of matters which, it appears to us, are very similar to the ground, if not identical to the ground, covered by Mr Justice McCracken, will prejudice and make impossible, if it is not already so, a fair trial for Mr Haughey of those charges," he said.
In relation to the Dunnes payments, Mr Gardiner said the tribunal did not have jurisdiction to inquire into those matters. He also questioned whether the tribunal was entitled to hear matters which had already been dealt with in the McCracken Report.
Mr Justice Moriarty said he accepted public concerns about expeditiously concluding the inquiry did come second to Mr Haughey's constitutional right to a fair trial. However, he was not satisfied Mr Haughey's legal right to a fair trial was jeopardised by the start of the tribunal.
He was taking into account the Supreme Court rulings on the D and Z cases and the tribunal's undertaking it was not seeking to make a case against Mr Haughey or anyone else, but was simply discharging its "solemn remit to inquire into matters in issue and seek to find facts".
"I believe that the safeguards which have been referred to by the Supreme Court will be unequivocally in-built into any eventual trial and it seems to me, having regard to the desirability of this inquiry proceeding to fruition, significant grounds would be required to persuade me that there was a real risk of jeopardy of a less than fair trial."
On the other matters raised on behalf of Mr Haughey, Mr Justice Moriarty said he was not persuaded to accede to the adjournment application. The fairest and most prudent way in proceeding with the delayed sittings was to segment them into the discrete sittings proposed, he said.
He accepted it was not an ideal scenario to have Mr Haughey's criminal case being heard at the same time as the tribunal sittings.