In the space of a few minutes of riveting evidence yesterday morning, James Gogarty rescued the planning tribunal from what seemed imminent asphyxiation. It started 11 minutes late. The chairman, Mr Justice Flood, had to explain why a ruling he had promised days ago was again delayed. Garrett Cooney and Colm Allen, counsel for JMSE and Bovale, respectively, rose to complain of a threat to restrict their cross-examination of James Gogarty.
When James Gogarty started to give evidence, there was, firstly, confusion over documents, then a series of further protests from Garrett Cooney and hesitant responses from the chairman.
In what looks like a huge gymnasium at the side of Dublin Castle, the planning tribunal was struggling for air.
Most of those who had been at the tribunal since Tuesday of last week - journalists and lawyers - were deeply critical of how the business was being handled. James Gogarty had given only a few hours of evidence in a week and had yet to get to the nub of his testimony.
There were questions as to whether the proceedings would eventually be derailed entirely by the decision not to start with opening statements on behalf of the tribunal, outlining the nature of the evidence that was expected.
There was dismay over the failure of the tribunal team to make documents available on time to the lawyers representing the various parties. There were doubts about whether James Gogarty could sustain a prolonged barrage of cross-examination, or even be able to complete his direct evidence.
AND then, at two minutes to eleven, the tribunal was ignited. James Gogarty was giving evidence that Joseph Murphy (senior), the controlling shareholder in JMSE, had wanted to dispose of lands in north Dublin quickly because of apprehension over the fall-out from an affidavit sworn by the former chief executive of the company, Liam Conroy.
Gogarty said he had been approached by Michael Bailey of Bovale, who was interested in buying the lands but did not want to operate through the designated estate agents. Bailey, he said, had come up with a plan whereby Bovale would acquire 50 per cent of the lands in return for procuring planning permission for them. And then the explosive bit . . .
Gogarty said that, at a meeting in the JMSE offices in Santry in early June 1989, Michael Bailey had said he could get planning permission for the lands by procuring a majority on Dublin County Council to vote for rezoning and that this could be done with the help of councillors who would be influenced by Ray Burke. Bailey also said he was in a position to cross the political divide (i.e. procure the support of councillors of parties other than Fianna Fail) and that, additionally, he could rely on close liaison with George Redmond and another official (a woman) in the planning office.
To assist him in his recollection of that meeting, Gogarty asked to see a letter written to him by Michael Bailey in its immediate aftermath. Garret Cooney had already objected to Gogarty seeing the letter at that stage and John Gallagher, for the tribunal, adverted to this objection. Then came the following exchange: Gogarty: "Sure he is objecting all over the bloody place. He is of course. He is objecting to the truth coming out."
Gallagher: "Please, Mr Gogarty."
Gogarty: "Sorry, I must insist here. He is objecting to the truth coming out. I came in here, warts and all, and I told you about an affidavit [that of Liam Conroy] that would fill you in on the whole bloody thing. He is objecting to that because he knows what's in it is dynamite."
Gallagher: "Please, Mr Gogarty."
Gogarty: "Please Mr . . . What's your name? Please Mr . . ."
Gallagher: "My name is Gallagher."
Gogarty: "Give me a break too as well. Mr Cooney is a great man. They were all great men, and his other friend over there, what do you call him . . . Mr Allen. They are all great men to discredit me and I will go to my grave before they will get away with it."
Even Garrett Cooney laughed in admiration of the calculated assault on counsel for JMSE and Bovale.
After a break which lasted for 35 minutes, Gogarty recalled a meeting in early June 1989 involving himself, Joseph Murphy jnr and Frank Reynolds, the then managing director of JMSE. They discussed the Michael Bailey proposal and Murphy jnr and Reynolds had seemed in favour of it. "Seemingly, there was pressure coming from [Ray] Burke to get money and to get it in cash," said Gogarty.
There was an envelope on a table at this meeting and Gogarty said he was told that they had arranged £40,000 to be given to Burke. "Junior [Murphy] and Frankie [Reynolds] had brought back £30,000 cash and . . . Junior was short £10,000 because the agreement with Bailey was that each of them would give £40,000 towards this proposition and Junior told me or Frankie to get a cheque."
A few days later, a meeting with Ray Burke was organised, Gogarty said. Gogarty, Joseph Murphy jnr and Michael Bailey drove out to Swords in Bailey's grey Mercedes car, according to Gogarty. (It is denied that Murphy jnr was present at the meeting with Burke.) "I sat in the back of the car and Junior was in the front of it and I had the envelope in my pocket and we were going along and I don't think there was a whole lot said, but I said that, I remember saying that `Will we get a receipt for this money?' You see. And Bailey said: `Will we, fuck!' "
On getting to Burke's home in Swords, as they got out of the car Bailey took his envelope out of "the dash", he said.
According to Gogarty, Burke was already well briefed on what needed to be done about the JMSE lands. Gogarty was apprehensive about getting value for the money that was being paid over. According to him, Burke said "that Mr Murphy and Mr Bailey were well aware of how he had honoured his commitments in the past and immediately Bailey intervened and said `That's all right, Jim, leave it with me and Ray.' " Before going out to bring his guests tea, Ray Burke put the two envelopes in the drawers of a sideboard, he said.
In spite of his frailty, James Gogarty is a formidable witness. His recollection, apparently, is crystal-clear. He has an extraordinary grasp of detail. He is not at all intimidated by the tribunal or the rows of lawyers waiting to cross-examine him. Indeed, it is very difficult to see how he could be discommoded in cross-examination because of the array of defensive armoury he wields: an appearance of vulnerability, a recurrent (but not persistent) inability to hear properly, devastating timing, flashes of combativeness, unrelenting confidence - and that memory.
He was the star performer in that huge gymnasium at Dublin Castle yesterday morning. He deserves a tribunal, the subtitle of whose report must surely be that memorable reported exchange in Michael Bailey's grey Mercedes on the way to Ray Burke in Swords in June 1989.