Journalist Mr Frank Connolly took the stand at the tribunal yesterday after counsel for Mr Michael Bailey and Mr Thomas Bailey asked that he explain why he tried to have a conversation with Mr Gogarty during a break in proceedings.
However, Mr Connolly declined to expand on a "joke" which he also described as a "humanitarian gesture" which, he said, was the substance of his conversation with Mr Gogarty. He had not sought to prompt Mr Gogarty.
As Mr Gogarty was making his way to his room at the back of the hall during a break, he was approached by Mr Connolly who asked: "Do you ever take holidays in June?"
The incident was noted by Mr Eamonn Leahy SC, counsel for the Baileys and their company, Bovale Developments, who drew it to the attention of counsel for the tribunal, Mr John Gallagher SC.
When Mr Justice Flood returned, Mr Leahy said he wanted to put Mr Connolly in the witness box and ask him what was the nature of the conversation. "As you are aware, it is absolutely prohibited that witnesses have contact with each other during cross-examination."
When Mr Frank Callanan SC, for Mr Gogarty, objected to this, saying that he was unaware of any rule which precluded one witness speaking to another, Mr Leahy said he was "stunned by Mr Callanan's ignorance in relation to the law".
On taking the witness box, Mr Connolly said he saw Mr Gogarty was "in some distress".
"I approached him and I said I think maybe this is the ambush you've been waiting for - in reference to the evidence which had just been presented - and I said to him, I said I wonder did he ever go on holidays in June, or words to that effect."
Mr Connolly said he was conscious that he was entitled to be legally represented and he was giving evidence without that representation. He was anxious to facilitate the tribunal.
In response to Mr Desmond O'Neill SC, for the tribunal, Mr Connolly said he thought Mr Gogarty had not heard or understood his remarks. "He said something to the effect that it's all lies or damned lies."
In response to Mr Leahy, Mr Connolly argued that any of the lawyers could have seen him in conversation with Mr Gogarty at various times and "if there is anything wrong with that, I would have expected that you would have pointed that out before now".
When he was asked to explain the reference to June holidays, Mr Connolly said he didn't want to comment "and I'm not sure if I should comment on what I think of the evidence which has been presented this morning".
When Mr Leahy insisted that he be told the purpose of the conversation with Mr Gogarty, Mr Justice Flood commented: "His purpose was to make a lighthearted remark to a man that was distressed going back to his room. Now if you want to dig a large hole, by all means do so, but if you fall into it . . ." The remainder of Mr Justice Flood's words were drowned by applause from the public gallery.
Following Mr Connolly's assertion that there had been no intention to prompt the witness, Mr Justice Flood found "no transgression of any known rule of conduct in the circumstances".
