The High Court has ruled that Owen O’Callaghan’s legal team must receive a wider range of material from statements made by Tom Gilmartin to the Tribunal of Inquiry into Certain Planning Matters and Payments.
The decision concerned how an earlier High Court disclosure order, affirmed by the Supreme Court in March 2005, should be implemented. That order had found that refusing Mr O’Callaghan access to relevant prior statements by Mr Gilmartin would breach his right to fair procedures when cross-examining him.
Following the Supreme Court ruling, the tribunal identified 56 documents but proposed extensive redactions under categories labelled A to K. Mr O’Callaghan accepted redactions in categories A and B but challenged the remainder.
Mr Justice O’Neill held that categories A, B, C, J and K could remain redacted. These included counsel’s internal notes, file-path information, material that did not record anything said by Mr Gilmartin, and certain material concerning legal advice or dealings with his former solicitor.
The court took a different view of categories D, E, F, G, H and I. Those covered material the tribunal did not intend to investigate publicly, matters investigated privately but not taken further, information concerning third parties and conversations involving deceased people.
The judge said the central issue was Mr O’Callaghan’s constitutional right to defend his good name through meaningful cross-examination. Material capable of bearing on Mr Gilmartin’s credibility could fall within the earlier disclosure order even where it was not directly part of the factual allegations being examined in the Quarryvale I or II modules.
The tribunal had argued that wider disclosure could disrupt the orderly conduct of its work and affect third-party rights. The court held, however, that administrative convenience could not override the requirements of justice. Questions about whether disclosed material could ultimately be raised publicly remained for the tribunal to decide if and when they arose.
The additional material was therefore to be disclosed to Mr O’Callaghan’s legal advisers, but only for cross-examination of Mr Gilmartin and necessary related inquiries.