The Morris Tribunal

Ruling of the Chairman and Sole Member

March 7^th, 2006.

On the 1^st of March 2006, the solicitor to the Tribunal received from Mr Páid Dorian, solicitor to Detective Sergeant John White, a letter calling on the Tribunal to call three extra witnesses in this module. On Friday the 3^rd of March, I heard argument in secret session on this matter from counsel for the Tribunal, counsel for Detective Sergeant White and counsel for the Garda Commissioner. Privilege has been claimed over the letter from the latter. Hence, I will refer to the sense of the letter in this ruling rather than its exact terms.

This module of the Tribunal’s work has been referred to as the ‘Burnfoot Module’. The central pivot of my work in it has been to enquire into an allegation by Detective Garda Thomas Kilcoyne that he and Detective Sergeant White were involved in planting a gun in an encampment of the Irish Traveller Community at an improvised site beside semi-derelict buildings of the An Grianán farm complex, which is situated just down the road from the Garda Station in Burnfoot in northeast Donegal. The two men were supposed to have travelled there on the evening of the 22^nd of May 1998, bringing with them a shotgun from a store owned by Detective Sergeant White, and he is supposed to have crept into the shadows close to the encampment and placed the gun so that it might later be found. The purpose of this exercise, if it happened, for that among other issues is what I have to decide, was for the gun to be found in a search on warrant the following day and so facilitate the arrest of seven men camped innocently there. All parties agree that a gun was found on the following day and that seven persons were, in consequence, arrested under section 30 of the Offences Against the State Act, 1939 as amended.

Normally, in a criminal or in a civil case one would be confined by the law as to relevance into examining an issue such as this by carefully scrutinising the demeanour of the party making the allegation and the party denying it. One might also receive evidence of background circumstances that are directly relevant to the central allegation. Examples of that might be the opportunity of the parties to be present at the scene, telephone records proximate to their alleged behaviour, and statements made by them previously which, having been put to them as inconsistent with their case, have been denied and need to be proven. Here the net of enquiry has, on the advice of my counsel, been cast much wider.

Detective Garda Kilcoyne made his allegation of wrongdoing in 2001. I have enquired into witnesses who might show the consistency or inconsistency of his conduct or declarations during the intervening three years. Normally, the rules against self-corroboration might prevent that exercise in a criminal or civil trial. My purpose was to look at that conduct from the point of view of inconsistency or of consistency, as the case may be.

In order to make the allegation, Detective Garda Kilcoyne had to be interviewed. An issue in my mind is as to how spontaneous was his alleged revelation of his own and his colleague’s allegedly shocking conduct. With this in mind, I have heard evidence from the officer to whom he first was called in to account for himself, namely Detective Inspector Michael Kane, and from the officer to whom he was then sent, that is Chief Superintendent Nacey Rice. Any issue as to whether leading, suggestive or imploratory techniques of interviewing were used at that crucial stage has been explored exhaustively in the hearings. There is much there that might assist me even though this kind of evidence goes far beyond what a court would normally hear. The Tribunal has also explored the taking of a formal statement, containing these allegations, from Detective Garda Kilcoyne and its inconsistency with a previous bland statement from him that, on the face of it, touched on or, at the least, gave him the opportunity to ‘tell all’, as the colloquialism has it. My legal team also called Detective Superintendent Tadgh Foley and Chief Superintendent Rice on the basis that as they were the officers who had actually taken down the words of the cautioned statement containing the planting allegation, that they might have something to offer or that they might be to blame as regards suggestion as to the shocking allegation that continues to be made by Detective Garda Kilcoyne. Again, although such an exploration would not usually be germane to a court issue, I have heard the evidence and I intend to consider it.

Finally, it has not escaped my attention that Detective Garda White has suggested in his evidence, and to some extent put the matter to senior officers, that they have a serious grudge against him and that this forms the background to the Kilcoyne allegation. This is at an even further remove from the issue that I have to try. Bluntly, what is before me is this: did Detective Sergeant White plant a firearm in the company of Detective Garda Kilcoyne or did he not. Nonetheless, I have heard from Superintendent Hugh Coll and from Assistant Commissioner Dermot Jennings as to this issue. The issue has been explored exhaustively with them, and with other witnesses such as Detective Sergeant Fergus Treanor, and it is up to me, on receipt of submissions, to consider what weight, if any, to attach to any evidence that may have emerged on the exploration of this evidence.

Detective Sergeant White has mentioned other matters that he would wish the Tribunal to explore. For instance, as is well known, Mr Frank McBrearty Junior is alleged to have made a kind of confession statement in respect of the death of the Late Richard Barron, following on his arrest by Gardaí pursuing that issue on the 4^th of December 1996. Detective Sergeant White alleges that he never had any faith in the veracity or validity of that statement and would have me understand that because of his attitude, as expressed out of turn, and which, colloquially, rocked the boat, that senior officers turned on him. However, he has not asked me to postpone deciding that module until I have explored the Frank McBrearty alleged statement in full, something that will take a number of weeks. He is right not to have done so. I mention the matter, as it is an excellent example of a collateral issue. I appreciate that I am not bound by the collateral/ fact in issue touchstone by which the rules of evidence limit the breadth of a court’s exploration of an issue. However, that ruling provides a handy reference point. Also, the courts have through several centuries evolved right reason to help in deciding what can and can not be used with a view to resolving central issues. Shanley J. gave an exposition of the rule in Forshall v the Bank or Ireland (unreported, High Court, May 1997):

The rule appears to be that a witness who denies facts put to him in cross-examination cannot be contradicted as to such facts unless they are relevant to the issues in the case. The rule in some measure appears to be founded upon the authority of Attorney General v Hitchcock (1847) I Exchequer, p 49 during the course of which Chief Barron Pollock says, at p 99: “if the answer of a witness is a matter which you would be allowed on your part to prove in evidence, if it has such a connection with the issues that you would be allowed to give it in evidence, then it is a matter on which you may contradict him”. That authority, as best as I can understand the position, is not one which has been overruled in any fashion. Indeed, the case is referred to in Hobbs, v Tinling [1929] KB 1,12 where, in the Court of Appeal, the Court was considering the issue as to the admissibility of such evidence. At p 50 Lord Justice Sankey said as follows: “A long argument was addressed to us at to the limits and the effect of cross-examination as to credit and the effect of the cross-examination as to credit …An opponent may be cross-examined as to his credit but he cannot be contradicted upon any point not material to the issue in order to show that his evidence is not to be believed.”

I consider what is therein set out a matter of good sense as well as a matter of law: see also the recent textbook ‘Evidence’ by Declan McGrath, a member of the Bar, at 3.65 to 3.73. None of the exceptions therein noted are relevant, in my judgment, to the issues actually put to Detective Garda Kilcoyne, as the case has run. Even if they were, my view would be that the wide-ranging examination that has already taken place in this matter over several days has been more than sufficient.

I turn now to Mr. Dorian’s letter. He asks that three senior officers from the Police Service of Northern Ireland be called in evidence. These officers, taking for the moment, as I must, all that is set out in the letter to be true, may be able to speak as to information provided to them by Detective Sergeant White. If called in evidence, they will apparently say that what he said to them was true and represents their view of the matters set out in the letter. Mr Whelan has urged that this is relevant to the credibility of Detective Sergeant White: the fact that he may have told the truth on a collateral, at best, matter, may show his truthfulness as to the Burnfoot matter. That is not logical and under no extension of the rules of evidence is it admissible to allow evidence as to the truth of a witness as to a matter unrelated to the issues in a case. Indeed it is only in the most exceptional circumstances that any evidence could ever be called as to the credibility of a main witness as to a main issue in a case. Normally, a case is decided on the evidence on the issues: not on a collateral enquiry as to the witnesses and how other people view their credibility. What might be relevant here, possibly, are enquiries as to the Burnfoot arrest or the Fitzmaurice murder. However, the Police Service of Northern Ireland did not investigate the Burnfoot arrests, or indeed have any dealings with the horrible Fitzmaurice murder that was linked into it. The link is that the arrests of the seven men at Burnfoot may have happened, and the alleged planting of the firearm may have been set up, because of a perception that certain members of the Irish Traveller community may have, on the information received by Detective Sergeant White, committed that murder. No one now says that they did. Nonetheless, I have called a number of witnesses who investigated the Fitzmaurice murder and I will consider the weight to be attached to their evidence, in due course. The letter concerns two grievous crimes that were committed North of the border. It may be, I do not know, that Detective Sergeant White has had some dealing whereby he may know something about the background to such crimes. These crimes are not connected to the Burnfoot searches and arrests. Instead the crimes are entirely separate. They are serious terrorist bombings North of the border. They are not relevant to my enquiry and nothing urged on me by counsel for Detective Sergeant White has made them even remotely relevant. To use the classic test: these issues, as supported by the evidence of these potential witnesses, do nothing to support or contradict a fact in issue.

That is not completely the end of the matter. Counsel for the Garda Commissioner had told me that if I am to investigate the testimony anticipated from the three PSNI officers, that he would intend to call much further evidence, on application to me, about these terrorist outrages with a view to contradicting the view taken by Detective Sergeant White. Thus, applying the collateral issue/ fact in issue test if I allow this as a matter of relevance, then in fairness any other party may call evidence on that point of relevance.

I am satisfied that it is for the Tribunal to exercise its own judgment on the application of the parties before is as to the necessity to call any witness. It is the Tribunal that is doing the investigation here. The Tribunal is limited by its terms of reference. The relevant term here asks the Tribunal to investigate and report, as a matter of urgency, on the arrest and detention of seven persons at Burnfoot County Donegal, on the 23^rd of May 1998 and the investigations relating thereto. Is the evidence proposed part of such Garda investigation? It clearly is not.

A Tribunal of enquiry, such as this one, has, on the relevant case law, “a significant measure of discretion as to the manner in which they carry out the important task which has been entrusted to them by the Oireachtas”; per Keane CJ in Flood v Lawlor, Supreme Court unreported 24 November 2000 and recently affirmed in O’Brien v Moriarty, Supreme Court unreported 16 February 2006. Despite such discretion, the High Court may intervene where such a discretion is exercised irrationally; ibid per Denham J at p 10. In the same case, Fennelly J quoted from Haughey v Moriarty [1993]3 IR 1 to the effect that the nature of any investigation that a Tribunal may pursue is primarily for the Tribunal. He also said:

The Terms of Reference are designed to enable the Tribunal to manage and schedule its investigations in a practical fashion. It may use private investigations to gather and sift. How it does so is a matter for it…It is for the Tribunal to judge whether [any] matter is worth pursuing. It must be remembered that the Houses of the Oireachtas have given a Tribunal a mandate to enquire. [The Tribunal] is not obliged to consider whether the evidence is more or less likely to bear out any particular proposition.

In this case, I have weighed whether to embark on this matter and as to where same might lead me. The answer is all too obvious. There has been an application that seeks to call evidence unrelated to my terms of reference. This leaves me in a position where to call that evidence, and such as might contradict it, as urged by the Garda Commissioner, would be going completely outside my terms of reference. As a result of the two Tribunals of Enquiry Acts of 1998, an amendment is now possible to a term of reference but within the express terms of section 1A of the Tribunals of Enquiry (Evidence) Act, 1921, which now reads:

(1)  An instrument to which this section applies…shall be amended, pursuant to a Resolution of both Houses of the Oireachtas, by a Minister of the Government, where

(a)the Tribunal has consented to the proposed amendment, following consultations between the Tribunal and the Attorney General on behalf of the Minister, or

the Tribunal has requested the amendment and is satisfied that such amendment would not prejudice the legal rights of any person who has co-operated with or provided information to the Tribunal under its terms of reference.

Subsection (2) provides that without prejudice to the generality of subsection (1), the Tribunal shall not consent to or request an amendment to an instrument… where it is satisfied that such amendment would prejudice the legal rights of any person who has co-operated with or provided information to the Tribunal under its terms of reference. I do not believe that such subsection applies here as the Tribunal has not sought to investigate the terrorist outrages mentioned in Mr Dorian’s letter. I have gathered no information on such outrages because they are not relevant to what I have to decide and in respect of what I have to decide I am satisfied that I have ample and extensive evidence of a sufficient kind. Were I minded to consider any further collateral enquiry, such as that urged in Mr Dorian’s letter, I would be obliged to seek an amendment of the terms of reference of this Tribunal. To do so would be to open up an entirely new hearing as to certain infamous terror attacks in Northern Ireland, as to who had caused them and as to whether they should have been anticipated and thereby been prevented. That is not relevant to the term of reference and nor is it relevant to the business of this Tribunal.