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 16TH FEBRUARY 2017 ESTABLISHED BY INSTRUMENT MADE BY THE MINISTER FOR JUSTICE AND EQUALITY UNDER THE TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921, ON 17TH FEBRUARY 2017 SOLE MEMBER: MR. JUSTICE PETER CHARLETON, JUDGE OF THE SUPREME COURT OPENING STATEMENT HELD IN DUBLIN CASTLE ON WEDNESDAY, 14TH JUNE 2017 Gwen Malone Stenography Services certify the following to be a verbatim transcript of their stenographic notes in the above-named action. ______________________ GWEN MALONE STENOGRAPHY SERVICES 1 OPENING STATEMENT OF COUNSEL FOR THE TRIBUNAL MADE ON 2 WEDNESDAY, 14TH JUNE 2017: 3 4 MR. McGUINNESS: Sir, it is now my function to address 5 you to deliver an opening statement on behalf of the 10:33 6 Tribunal. I will be aided in this task by your other 7 counsel Mr. Patrick Marrinan SC and Ms. Kathleen Leader 8 BL. The purpose of this is to outline in public the 9 progress the Tribunal is making in relation to the 10 issues comprised in the terms of reference, an overview 10:33 11 of the evidence and issues that have emerged so far, 12 without drawing any conclusions in relation to those 13 and to lay out, fairly I hope, the factual landscape 14 that appears to be emerging. This is subject to all 15 the evidence that will emerge in the course of the 10:33 16 public hearings that you, sir, are about to embark 17 upon. Anything, therefore, that I or my colleagues say 18 is subject to the evidence as it emerges and is tested, 19 but also to the whole process that a tribunal must 20 necessarily bring to bear in relation to that. I 10:33 21 shall, as a matter of necessity and fairness, have to 22 outline what is involved in such a process, albeit as 23 briefly as I can. 24 25 Scope of Inquiry and the Terms of Reference 10:34 26 The scope of the Tribunal's inquiries have necessarily 27 been defined and thereby limited by the terms of 28 reference conferred on it by the resolutions of each of 29 the Houses of the Oireachtas. These are set out here, 2 Gwen Malone Stenography Services Ltd. 1 and I will quote them. 2 3 "(a) To investigate the allegation made in a Protected 4 Disclosure under the Protected Disclosures Act 2014, on 5 the 30th September 2016, by Superintendent David 10:34 6 Taylor, wherein he alleges he was instructed or 7 directed by former Commissioner Martin Callinan and/or 8 Deputy Commissioner Nóirín O'Sullivan to contact the 9 media, to brief them negatively against Sergeant 10 Maurice McCabe and in particular to brief the media 10:34 11 that Sergeant McCabe was motivated by malice and 12 revenge, that he was to encourage the media to write 13 negatively about Sergeant McCabe to the effect that his 14 complaints had no substance, that the Gardaí had fully 15 investigated his complaints and found no substance to 10:35 16 his allegations and that he was driven by agendas. 17 18 (b) To investigate the allegation of 19 Superintendent Taylor in his Protected Disclosure that 20 he was directed to draw journalists' attention to an 10:35 21 allegation of criminal misconduct made against 22 Sergeant McCabe and that this was the root cause of his 23 agenda, namely revenge against the Gardaí. 24 25 (c) To investigate what knowledge former Commissioner 10:35 26 Callinan and/or Commissioner O'Sullivan and/or other 27 senior members of the Garda Síochána had concerning 28 this allegation of criminal misconduct made against 29 Sergeant McCabe and whether they acted upon the same in 3 Gwen Malone Stenography Services Ltd. 1 a manner intended to discredit Sergeant McCabe. 2 3 (d) To investigate the creation, distribution and use 4 by Tusla of a file containing false allegations of 5 sexual abuse against Sergeant Maurice McCabe that was 10:35 6 allegedly sent to Gardaí in 2013 and whether these 7 false allegations and/or the file were knowingly used 8 by senior members of An Garda Síochána to discredit 9 Sergeant McCabe. 10 10:36 11 (e) To investigate whether the false allegations of 12 sexual abuse or any other unjustified grounds were 13 inappropriately relied upon by Commissioner O'Sullivan 14 to discredit Sergeant Maurice McCabe at the Commission 15 of Investigation into Certain Matters in the 10:36 16 Cavan/Monaghan district under the Chairmanship of 17 Mr. Justice Kevin O'Higgins. 18 19 (f) To investigate whether senior members of An Garda 20 Síochána attempted to entrap or falsely accuse 10:36 21 Sergeant McCabe of criminal conduct. 22 23 (g) To investigate such knowledge which former 24 Commissioner Callinan and Commissioner O'Sullivan had 25 concerning the matters set out at (a), (b), (c), (d), 10:36 26 (e) and (f) move. 27 28 (h) To investigate contacts between members of the 29 Garda Síochána and media and broadcasting personnel, 4 Gwen Malone Stenography Services Ltd. 1 members of the Government, Tusla, the Health Service 2 Executive, any other State agencies or any relevant 3 person as the Sole Member may deem necessary to carry 4 out his work relevant to the matters set out at (a), 5 (b), (c), (d), (e) and (f) above. 10:36 6 7 (i) To examine all records relating to the 8 telecommunications interactions used by 9 Superintendent Taylor, former Commissioner Callinan and 10 Commissioner O'Sullivan in the period from the 1st July 10:37 11 2012 to the 31st May 2014, to ascertain whether there 12 are any records of text messages or other 13 telecommunications interactions relating to the matters 14 set out at (a), (b), (c), (d), (e) and (f) above and to 15 examine and consider the content of any such text 10:37 16 messages or other telecommunications interactions. 17 18 (j) To examine all electronic and paper files relating 19 to Sergeant Maurice McCabe held by An Garda Síochána 20 and to consider any material therein relevant to (a), 10:37 21 (b), (c), (d), (e) and (f) above. 22 23 (k) To investigate whether Commissioner O'Sullivan, 24 using briefing material prepared in Garda Headquarters, 25 influenced or attempted to influence broadcasts on RTÉ 10:38 26 on the 9th May 2016, purporting to be a leaked account 27 of the unpublished O'Higgins Commission Report, in 28 which Sergeant McCabe was branded a liar and 29 irresponsible. 5 Gwen Malone Stenography Services Ltd. 1 2 (l) To investigate whether a meeting took place between 3 former Commissioner Callinan and Deputy John McGuinness 4 on the 24th January 2014 in the car park of Bewley's 5 Hotel, Newlands Cross, County Dublin, and to examine 10:38 6 and consider the circumstances which led to any such 7 meeting, the purpose of such meeting and matters 8 discussed at such meeting. 9 10 (M) To investigate such knowledge which Commissioner 10:38 11 O'Sullivan had of the meeting referred to in (l) above. 12 13 (n) To investigate contacts between members of the 14 Garda Síochána and Tusla in relation to Garda Keith 15 Harrison. 10:38 16 17 (o) To investigate the pattern of the creation, 18 distribution and use by Tusla of files containing 19 allegations of criminal misconduct against members of 20 An Garda Síochána who had made allegations of 10:39 21 wrongdoing within An Garda Síochána and of the use 22 knowingly by senior members of the Garda Síochána of 23 these files to discredit members who had made such 24 allegations. 25 10:39 26 (p) To consider any other complaints by members of 27 Garda Síochána who has made a Protected Disclosure 28 prior to the 16th February 2017 alleging wrongdoing 29 within the Garda Síochána and where, following the 6 Gwen Malone Stenography Services Ltd. 1 making of the Protected Disclosure, the garda making 2 the said Protected Disclosure was targeted or 3 discredited with the knowledge or acquiescence of 4 senior members of the Garda Síochána." 5 10:39 6 That is the end of the terms of reference, sir. 7 8 The terms of reference having been set down, the 9 Tribunal, in accordance with the Supreme Court decision 10 in Haughey v. Moriarty, duly interpreted its terms of 10:39 11 reference in its interpretation of the Terms of 12 Reference of the Tribunal on the 12th May 2017. It is 13 unnecessary to refer to it in any detail here as it 14 speaks for itself and no issue has been raised by any 15 party in relation to the ambit of the Tribunal's 10:40 16 inquiries in pursuance of its interpretation of its 17 terms of reference. On the same date, the Tribunal 18 also published its memorandum of procedures adopted for 19 the purpose of the Tribunal. Again, no issue has 20 arisen to date in connection with this. These steps 10:40 21 were all preceded, sir, by your immediate announcement 22 in relation to the establishment of the Tribunal and 23 your urgent call for the cooperation of all concerned 24 and the provision of all necessary information, 25 documentation and relevant devices as outlined by you 10:40 26 at your sitting on the 27th February 2017. 27 28 29 Function of the Tribunal 7 Gwen Malone Stenography Services Ltd.