The Barr tribunal investigating the Abbeylara shooting of Mr John Carthy has been stopped for a third time in just six days of sittings, following remarks by Mr Justice Barr on evidence not yet put before the tribunal, which could prove highly critical of senior Garda officers.
Counsel for a number of gardaí, Mr John Rogers SC, called for the tribunal to be adjourned yesterday after the tribunal chairman put it to garda witness Det Sgt Gerard Russell that there would be "expert evidence" that the gardaí had been wrong to place their negotiation point directly in the line of sight of Mr John Carthy.
Mr Rogers's application was backed by Mr Diarmuid McGuinness, counsel for the Garda Commissioner, who said it appeared that Mr Justice Barr had already made "findings" before the tribunal had heard all its evidence.
Both counsel asked for an adjournment to be allowed to review the transcript of the chairman's remarks.
The tribunal is investigating the events surrounding the fatal shooting of Mr Carthy by members of the Garda Emergency Response Unit outside his house at Abbeylara in April 2002. Mr Carthy had taken several shots at the Garda negotiation point before emerging from his house carrying his loaded gun. As tactical leader of the ERU, Det Sgt Russell, was party to the placement of the negotiation point.
Mr Justice Barr told Det Sgt Russell that the tribunal would later hear "expert evidence" that the strategy of eye to eye contact, employed by the ERU negotiator, should only be used as a last resort.
He put it to Det Sgt Russell that by placing the negotiation point directly in front of Mr Carthy the ERU had "provided John Carthy with a target" and were "encouraging him to shoot at you".
Mr Rogers accused the chairman of putting matters to his client, Det Sgt Russell, that he had not been given notice of.
"This expert opinion known to yourself has not been circulated to the tribunal, this is not in accordance with the procedures."
The manner in which the questions were put to Det Sgt Russell and the use of the words "encouraging him to shoot" had caused his client "the greatest concern" that the chairman had already drawn conclusions without hearing all the evidence, Mr Rogers said.
Mr Justice Barr denied that he had already made up his mind and said "it was a fact"that there were difficulties with the placing of the negotiation point. He added that he had not vetted the experts but had been informed of their evidence by a member of his legal team and felt it was only fair to allow Det Sgt Russell to address the matter.
Mr McGuinness said he was concerned about the fairness of "cross examining" witnesses without giving them notice of the material.He said that Judge Barr had put a number of assertions to Det Sgt Russell that "sounded like findings".
Mr Justice Barr said he "had no concerns" that he had been unfair to Det Sgt Russell and would "make no apologies" for putting the questions to him. He granted an adjournment until 11 a.m. this morning, but warned that a further stay would not be granted.
The tribunal was forced to adjourn last Tuesday when the witness, Mr Martin Shelly, a friend of Mr Carthy, made an allegation against a garda which he had not mentioned in his statement. Proceedings were also stopped the previous Friday when Mr Carthy's cousin, Mr Tom Walsh made similar allegations.
