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DAY 08 071317 DISCLOSURES.Sgngl TRIBUNAL OF INQUIRY INTO PROTECTED DISCLOSURES MADE UNDER THE PROTECTED DISCLOSURES ACT 2014 AND CERTAIN OTHER MATTERS FOLLOWING RESOLUTIONS PASSED BY DÁIL ÉIREANN AND SEANAD ÉIREANN ON 16 FEBRUARY 2017 ESTABLISHED BY INSTRUMENT MADE BY THE MINISTER FOR JUSTICE AND EQUALITY UNDER THE TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921, ON 17 FEBRUARY 2017 SOLE MEMBER: MR. JUSTICE PETER CHARLETON, JUDGE OF THE SUPREME COURT HELD IN DUBLIN CASTLE ON THURSDAY, 13TH JULY 2017 - DAY 8 Gwen Malone Stenography Services certify the following to be a verbatim transcript of their stenographic notes in the above-named 8 action. ______________________ GWEN MALONE STENOGRAPHY SERVICES APPEARANCES SOLE MEMBER: MR. JUSTICE PETER CHARLETON, JUDGE OF THE SUPREME COURT REGISTRAR: MR. PETER KAVANAGH FOR THE TRIBUNAL: MR. DIARMUID MCGUINNESS SC MR. PATRICK MARRINAN SC MS. KATHLEEN LEADER BL MS. ELIZABETH MULLAN, SOLICITOR FOR MS. D: MR. NIALL BUCKLEY BL INSTRUCTED BY: MR. KIERAN KELLY FANNING & KELLY SOLICITORS HATCH HALL HATCH STREET LOWER SAINT KEVIN'S DUBLIN FOR SGT. McCABE: MR. MICHAEL McDOWELL SC MR. PAUL McGARRY SC MR. BREFFNI GORDON BL INSTRUCTED BY: SEAN COSTELLO & COMPANY HALIDAY HOUSE 32 ARRAN QUAY DUBLIN 7 FOR THE COMMISSIONER: MR. MÍCHEÁL P. O'HIGGINS SC MR. CONOR DIGNAM SC MR. DONAL McGUINNESS BL INSTRUCTED BY: MS. KATHY DONALD CHIEF STATE SOLICITOR'S OFFICE OSMOND HOUSE LITTLE SHIP STREET DUBLIN 8 FOR THE HSE: MR. MICHAEL CUSH SC INSTRUCTED BY: MR. JON LEGORBURU MR. SEAN O'DONNELL MR. REDMOND SCANLON BYRNE WALLACE 88 HARCOURT STREET DUBLIN 2 FOR TUSLA: MR. PAUL ANTHONY McDERMOTT SC INSTRUCTED BY: ARTHUR COX TEN EARLSFORT TERRACE DUBLIN 2 FOR ALAN SHATTER: MR. BRIAN GALLAGHER GALLAGHER SHATTER SOLICITORS 4 UPPER ELY PLACE DUBLIN 2 FOR RTE: MR. SEAN GILLANE SC MR. EAMON KENNEDY BL INSTRUCTED BY: MS. PATRICIA HARRINGTON, SOLICITOR GARDA KEITH HARRISON: MR. MARK HARTY SC KILFEATHER SOLICITORS SUPT. DAVID TAYLOR: MR. MICHAEL O'HIGGINS SC MR. JOHN FERRY BL INSTRUCTED BY: CARTHAGE CONLON MICHAEL E HANAHOE SUNLIGHT CHAMBERS 21 PARLIAMENT STREET DUBLIN 2 MS. YVONNE MARTIN: MR. MICHAEL HEGARTY, SOLICITOR FOR MR. JOHN McGUINNESS: MR. DARREN LEHANE BL INSTRUCTED BY: MR. FINTAN LAWLOR FOR GARDA MAIRE O'REILLY: MS. CLIONA KIMBER SC MR. KEVIN BELL BL INSTRUCTED BY: MS. CAOIMHE RYAN MORAN & RYAN FOR THE IRISH TIMES: MR. MARK DUNNE BL INSTRUCTED BY: HAYES SOLICITORS LAVERY HOUSE EARLSFORT TERRACE DUBLIN 2 FOR INDEPENDENT NEWS AND MEDIA PLC: MR. KIERAN KELLY, SOLICITOR FOR MS. Y: MR. PAUL GUNNING BL INSTRUCTED BY: MS. FIONA BAXTER JOHN J. QUINN AND COMPANY SOLICITORS EARL STREET LONGFORD ASSOCIATED NEWSPAPERS: MR. MICHAEL KEALY, SOLICITOR COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Service INDEX WITNESS PAGE SUBMISSION BY MR. BUCKLEY ................................. 6 SUBMISSION BY MR. GILLANE ................................. 14 SUBMISSION BY MR. O'MALLEY ................................ 16 SUBMISSION BY MR. KEALY ................................... 16 SUBMISSION BY MR. MCALEESE ................................ 21 SUBMISSION BY MR. McDERMOTT ............................... 22 SUBMISSION BY MR. BRODERICK ............................... 24 SUBMISSION BY MR. McDOWELL ................................ 25 SUBMISSION BY MR. McGUINNESS .............................. 26 SUBMISSION BY MR. KEALY ................................... 38 SUBMISSION BY MR. McALEESE ................................ 39 SERGEANT ANTHONY BYRNE EXAMINED BY MS. LEADER ................................... 41 CROSS-EXAMINED BY MR. McDOWELL ............................ 74 CROSS-EXAMINED BY MR. DIGNAM .............................. 83 QUESTIONED BY THE CHAIRMAN ................................ 89 CROSS-EXAMINED BY MR. McDERMOTT ........................... 94 MS. ORLA CURRAN DIRECTLY EXAMINED BY MR. MARRINAN ......................... 98 CROSS-EXAMINED BY MR. DONAL McGUINNESS .................... 109 DR. GERARD O'NEILL DIRECTLY EXAMINED BY MS. LEADER ........................... 118 MS. PAMELA ARMITAGE DIRECTLY EXAMINED BY MS. LEADER ........................... 125 CROSS-EXAMINED BY MR. McGARRY ............................. 144 RE-EXAMINED BY MS. LEADER ................................. 147 MS. ANNE MASTERSON DIRECTLY EXAMINED BY MR. MARRINAN ......................... 150 MS. BRIEGE TINNELLY DIRECTLY EXAMINED BY MR. MCGUINNESS ...................... 153 CROSS-EXAMINED BY MR. McDOWELL ............................ 170 RULING OF THE CHAIRMAN ................................... 186 MS. CLAIR TOBIN DIRECTLY EXAMINED BY MR. McGUINNESS ....................... 193 1 THE HEARING RESUMED ON THURSDAY, 13TH JULY 2017 AS 2 FOLLOWS: 3 4 CHAIRMAN: So Mr. McGuinness, you have some 5 post-Brexit -- post-breakfast as opposed to Brexit 09:03 6 submissions to make. 7 MR. McGUINNESS: Well, Chairman, you indicated 8 yesterday that you would wish to hear submissions from 9 parties as to the appropriate manner in which, or the 10 conditions in relation to which the evidence of Ms. D 09:03 11 and other family members would be taken. Now, counsel 12 for Ms. D is here and he has furnished me just 13 literally a minute ago with some, as it were, a written 14 sketch of submissions. I think he is anxious to make a 15 case for the Tribunal dealing with it in a particular 09:04 16 way, and it might be appropriate for him to outline 17 that case, as it were, at this juncture. 18 CHAIRMAN: Yes. 19 20 SUBMISSION BY MR. BUCKLEY 09:04 21 22 MR. BUCKLEY: Thank you, Chairman. Obviously I appear 23 on behalf of Ms. D, instructed by Fanning Kelly 24 Solicitors. The Tribunal took the step, of its own 25 initiative, to protect Ms. D's identity and to protect 09:04 26 various confidential and private documentation in 27 recognising the important privacy and ancillary public 28 interest served by those measures, and it's Ms. D's 29 submission that the circumstances set out in Section 6 Gwen Malone Stenography Services Ltd. 1 2(a) of the 1921 Act are satisfied. As I say, there 2 are some written submissions which I circulated just 3 this morning and I am going to speak briefly to them, 4 if it's appropriate, but I won't delay unduly. 5 09:05 6 I say the public interest reasons connected with both 7 the subject matter of the specific aspect of the 8 inquiry with which this term of reference is concerned 9 and the nature of the evidence to be given by Ms. D, 10 make it appropriate why the public should be excluded. 09:05 11 And I think if the public is satisfied that that 12 threshold is met it then becomes in part a matter for 13 the Tribunal and in part a matter of the disposition of 14 press representatives, whether it can uphold that 15 public interest with measures less than a full 09:05 16 in camera hearing. So I wanted to firstly identify the 17 public interest served by a private hearing, then 18 identify the particular apprehensions of the privacy 19 impact and go on to identify what I say confer powers 20 to restrict reporting, if the Tribunal feels that it 09:05 21 can facilitate a hearing with press restrictions. 22 So obviously the statutory norm is for a public 23 inquiry, but there is a clear jurisdiction for 24 exceptions where it's in the public interest for 25 reasons connected with the subject matter of the 09:06 26 inquiry or the nature of the evidence to be given, and 27 I say there is also a constitutional message which 28 overlays the application of those provisions. I say 29 the public interest served by Ms. D's evidence being 7 Gwen Malone Stenography Services Ltd. 1 heard otherwise than in public relate to vindication of 2 her personal rights in terms of privacy and dignity 3 concerning deeply private matters, including in 4 relation to sexual health and family matters; secondly, 5 upholding the State's obligations under Article 8 of 09:06 6 the ECHR to protect the right to private and family 7 life; thirdly, protecting the confidentiality and 8 anonymity of minors in relation to private information 9 and/or allegations of sexual misconduct - and that is 10 an interest which I say continues after my a minor 09:06 11 attains majority; and finally, encouraging the 12 continued confidential reporting of allegations of 13 sexual misconduct. 14 15 So in terms of the apprehensions of privacy, I am 09:06 16 conscious that the Tribunal doesn't regard various 17 matters as being within its terms of reference but 18 nevertheless there has been, I suppose, public 19 attention and media reporting on various lines of 20 questioning which I would respectfully submit are 09:07 21 outside the scope of the Tribunal's inquiries. 22 CHAIRMAN: Can I just stop you there, Mr. Buckley, if I 23 may? We had a private hearing in relation to what was 24 within and what was without, and I think everybody 25 agreed -- I mean, everybody without cavil agreed that 09:07 26 certain things were not within the terms of reference. 27 MR. BUCKLEY: I fully appreciate that and I suppose I 28 am not apprehensive that there will be any 29 determination or findings by the Tribunal in relation 8 Gwen Malone Stenography Services Ltd. 1 to those matters, but I am aware that there has been 2 reporting on matters which I say stray beyond the 3 strict parameters of the necessary terms of the 4 inquiry, and those are documented in the submissions, 5 but they obviously relate to the issues concerning the 09:07 6 presentation in 2006 and the presentation again in 7 2013. And I think it's undesirable that those matters 8 would be the subject of attention or public hearings. 9 10 So, in terms of the focus of this particular phase, it 09:08 11 seems to me it's concerned with the creation, 12 distribution and use by Tusla of a file in 2013, and 13 not anything else, and I don't think there is any 14 controversy in relation to that.
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