Mr Joseph Murphy snr would be exposed to an unnecessary risk of death if his evidence were to be taken in public, the tribunal chairman said at a public sitting in Guernsey yesterday.
The chairman said he would make a fresh order today appointing himself a commissioner, and the evidence would be taken in private. The evidence taken by the commissioner would remain private until it was submitted to the tribunal on its return to Dublin.
Mr Garrett Cooney SC, for Mr Murphy, said his client would be available to give evidence. He had made the application to have a commission established.
The chairman gave his ruling after hearing evidence from Mr Murphy's medical practitioner, Dr John Curran, who said: "It would be unwise to put himself at such risk . . . I think he is at a very real and serious risk . . . of cardiac failure . . . with the likelihood that it probably would be a terminal event if he was not resuscitated in adequate time."
The chairman said he had sat in public following the decision of the President of the High Court in the case of The Irish Times and others and the tribunal. The High Court ruled that Mr Murphy's evidence could be taken in public.
Mr Justice Flood said Dr Curran's evidence was to the effect that "he [Murphy] has insulin-dependent diabetes, cerebral atrophy and established vascular disease and more recently congestive cardiac failure".
Dr Curran had said Mr Murphy's current medical status was that he had a very fragile cardiovascular system. He had been recently hospitalised with cardiac failure and required medical resuscitation. Had he not been admitted to hospital he would have died of heart failure.
Asked about the effect of giving evidence before the tribunal at which there were members of the press and public present, Dr Curran said there was a serious risk of cardiac failure with a likelihood that it would be a terminal event. Mr Murphy's main anxiety that would produce the symptoms was having an open and public form of the tribunal.
The chairman said he was mindful of the High Court decision that Section 2 (a) of the Tribunals of Inquiry Act did not afford a statutory ground to exclude the public in general and the press from the proceedings of the tribunal based on concern for the health of a witness.
"The judgment expressly confirms the entitlement of a tribunal to appoint a commissioner to take evidennce where it is appropriate t do so. This is contained in section 1 (c)," he said.
"I have carefully considered the testimony of Dr Curran. In the light of this evidence, which I accept, I believe it would expose the witness, Joseph Murphy snr, to an unnecessary risk of death if I were to proceed to take the evidence in public."
Mr Frank Callanan SC, for Mr James Gogarty, said it appeared Dr Curran's evidence was not based on an examination but on what he discussed with Mr Murphy.
Answering Mr Cooney on his patient's mental condition, Dr Curran said Mr Murphy's ability to retain short-term information was poor. His long-term memory, though better, was impaired. He believed Mr Murphy should only give evidence for several hours a day, with adequate space in between to allow for his physical needs. Dr Curran suggested Mr Murphy's evidence be taken either in the morning or afternoon.
Mr Callanan opposed the setting up of the commission, stating that Mr Cooney's application to hear the matter in commission was extraordinary, bizarre and unprecedented.
Mr Cooney: "It seemed puzzling to say the least that Mr Callanan sought to impose on his client a choice which could on the medical evidence result in his premature death."
Mr Callanan: "That was a disgraceful comment."