The Supreme Court has dismissed an appeal by members of the Tribunal of Inquiry into Certain Planning Matters and Payments and affirmed a High Court order concerning access to Tom Gilmartin’s earlier statements and related material.
The dispute arose after Mr Gilmartin made serious allegations about property developer Owen O’Callaghan during public evidence in March 2004. The Supreme Court judgment said the allegations were absent from the narrative statement circulated to Mr O’Callaghan beforehand. The material sought was for use in cross-examining Mr Gilmartin; the Court did not decide whether his allegations were true.
The tribunal had refused to circulate private investigative material, relying on its confidentiality policy. The High Court declared that refusing access to documents relevant to the current inquiry module breached Mr O’Callaghan’s rights to fair procedure and natural and constitutional justice. Its order covered prior oral and written statements by Mr Gilmartin, including information recorded or transcribed from him by counsel, but excluded notes made by counsel solely for their own purposes. The High Court also directed that the tribunal’s 24 March 2004 decision be sent to the court and quashed.
On appeal, the Supreme Court held that earlier accounts had significant and proper potential use in testing Mr Gilmartin’s evidence. It concluded that withholding them would hamper the cross-examination needed to protect Mr O’Callaghan’s rights in the circumstances of this inquiry. The Court rejected the tribunal’s reliance on its confidentiality policy as a basis for denying access once the subject matter had become part of a public inquiry.
The judgment stressed that the decision concerned the particular circumstances before the Court, including the gravity of the allegations and the importance of the witness’s credibility. It did not remove the tribunal’s general discretion over its procedures in other circumstances. The tribunal’s appeal was dismissed and the High Court order affirmed. The Supreme Court did not determine the truth of the allegations or make findings on the underlying planning matters.