Summary Of Conclusions:
Chapter 16
BRIARGATE
16-01 Mr Burke did not purchase his home at Briargate Malahide Swords from Oakpark Developments Ltd in 1973 in a normal commercial transaction.
16-02 The consideration (if any) passing between Mr Burke and the directors of Oakpark Developments Ltd, Mr Tom Brennan and Mr Jack Foley, for the dwelling house and lands at Briargate did not represent the open market value of the property.
16-03 The assignment of Briargate by Oakpark Developments Ltd to Mr Burke conferred a substantial benefit upon him which, in the opinion of the tribunal, was given in order to ensure that he would act in the best interests of Oakpark Developments Ltd's director, Mr Tom Brennan, and his associates, when performing his public duties as a member of Dublin County Council and a member of Dáil Éireann.
16-04 The tribunal has been unable to discover what actions Mr Burke performed for Mr Tom Brennan or his associates in return for the benefit provided to him. It is the opinion of the tribunal and the tribunal concludes that the benefit which was conferred upon Mr Burke was conferred in circumstances which gave rise to a reasonable inference that the motives for making and receiving this benefit were connected with the public office held by Mr Burke.
16-05 In the opinion of the tribunal the transfer of Briargate to Mr Burke amounted to a corrupt payment to him from Mr Tom Brennan and his associates.
OFFSHORE BANK ACCOUNTS
16-06 The accounts opened for Mr Burke at AIB Bank (Isle of Man) Ltd in the name of Mr P.D. Burke in 1982, and at Hill Samuel & Company (Jersey) Ltd in the name of Caviar Ltd in 1984, were opened in order to receive payments from Mr Tom Brennan and his associates, which were not the proceeds of political fundraising activities or political donations from Mr Tom Brennan, but were payments made to Mr Burke in order to ensure that he would continue to act in the best interests of those who had paid him when performing his public duties as a member of Dublin County Council and as a member of Dáil Éireann.
16-07 The payment of £50,000 sterling by Kalabraki Ltd to the account of Mr P.D. Burke at AIB Bank (Isle of Man) Ltd on December 21st, 1982, was a corrupt payment made by Mr Tom Brennan to Mr Burke.
16-08 The payment of £35,000 sterling to the account of Caviar Ltd at Hill Samuel & Company (Jersey) Ltd per Allied Irish Bank on April 19th, 1984, was a corrupt payment to Mr Burke, probably made by Mr Tom Brennan and his associates.
16-09 The payment of £60,000 sterling to the account of Caviar Ltd by Canio Limited on November 21st, 1984, was a corrupt payment to Mr Burke which was funded to an amount of £25,000 sterling each by Mr Tom Brennan and Mr Joseph McGowan, and to an amount of £10,000 sterling by Mr John Finnegan.
16-10 The payment of £15,000 sterling to the account of Caviar Ltd by Canio Ltd on April 19th, 1985, was a corrupt payment to Mr Burke which was funded jointly by Mr Tom Brennan and Mr Joseph McGowan.
16-11 The tribunal has been unable to discover what specific action Mr Burke took to advance the interests of those who had paid him these monies which were lodged to his offshore accounts at AIB Bank (Isle of Man) Ltd and at Hill Samuel & Company (Jersey) Ltd, but is satisfied, on the balance of probabilities, that he acted in their interests in the performance of his public duties.
CENTURY RADIO
16-12 The ministerial directive obliging RTÉ to provide its facilities to Century, issued by Mr Burke as minister for communications on March 14th, 1989, was issued to advance the private interests of the promoters of Century and not to serve the public interest.
16-13 The payment of £35,000 to Mr Burke by Mr \ Barry on May 26th, 1989, was a corrupt payment made in response to a demand for £30,000 cash by Mr Burke, and was not intended by Mr Barry to be a political donation to Mr Burke or to Fianna Fáil.
16-14 In proposing legislation which would have had the effect of curbing RTÉ's advertising, altering the format of 2FM, and diverting broadcasting licence fee income from RTÉ to independent broadcasters, Mr Burke was acting in response to demands made of him by the promoters of Century and was not serving the public interest.
16-15 The payment of £35,000 to Mr Burke by Mr Barry ensured that he was available to serve the interests of Century's promoters, as is evidenced by his willingness to meet with their bankers and to give them assurances that he would take steps, including, if necessary, the introduction of legislation which would be to Century's financial benefit.
PAYMENT TO MR BURKE AT BRIARGATE, SWORDS, IN THE WEEK PRIOR TO JUNE 15TH, 1989
16-16 The meeting at Mr Burke's home at Briargate, Swords, Co Dublin, in the week prior to June 15th, 1989, was specifically arranged by Mr Michael Bailey and Mr Burke so as to allow for the payment of money to be made to Mr Burke.
The meeting was not arranged in order to receive a political donation, but was arranged for the purpose of paying Mr Burke money to ensure his support, and his influence over others, so as to achieve the alteration of the planning status of the Murphy company's North Dublin lands, described as lots 1-6 in Mr Bailey's letter of June 8th, 1989, addressed to Mr Gogarty.
16-17 The parties present at the meeting were Mr Burke, Mr Michael Bailey, Mr Joseph Murphy jnr, and Mr James Gogarty.
16-18 The Murphy executives present at the meeting believed that the JMSE payment, which was passed in a closed envelope by Mr Joseph Murphy jnr to Mr Burke, was being matched by an equal payment from Mr Michael Bailey contained in an envelope which they observed being passed by Mr Michael Bailey to Mr Burke.
16-19 The meeting took place with the prior knowledge of Mr Joseph Murphy snr, Mr Frank Reynolds, and Mr Roger Copsey, each of whom was aware that it was intended to pay Mr Burke £80,000 in order to ensure his support in achieving the intended changes in the planning status of the Murphys' north Dublin lands, which were at that time the subject of a participation proposal, which, if concluded, would have resulted in Mr Michael Bailey receiving a 50 per cent interest in the Murphys' north Dublin lands.
16-20 Mr Joseph Murphy snr was the ultimate decision-maker when it came to either selling the lands or entering into the participation proposal with Mr Bailey.
16-21 On a date subsequent to July 3rd, 1989, and prior to July 10th, 1989, Mr Joseph Murphy snr decided not to enter into the participation proposal envisaged by Mr Michael Bailey, but to sell the lands outright.
16-22 The role of Mr James Gogarty was that of a functionary only, and all actions taken by him in connection with the sale of the lands, the participation proposal, and the attendance at Mr Burke's home, were taken by him at the request of Mr Joseph Murphy snr.
16-23 Mr Burke assured those present at the time of the payment of monies to him that he understood that the payment was being made in connection with the proposal to alter the planning status of the Murphy lands, and further assured those present that he would honour his commitment to do so.
16-24 The payment received by Mr Burke amounted to a corrupt payment and all present at the meeting were aware that it was such.
Chapter 17
Co-operation with the tribunal
17-01 All parties from whom the tribunal legitimately sought information had an obligation to provide such information truthfully and expeditiously.
The provision of misleading information or the withholding of relevant information has the capacity to hinder and obstruct the tribunal, and inevitably leads to delay. The conduct of a statutory public inquiry is a complex and costly exercise, and this tribunal has endeavoured to carry out its statutory functions with expedition and as economically as possible, so as to comply with the express wishes of the Oireachtas, contained within its terms of reference.
17-02 This tribunal continues its work more than 4½ years after its inception, not only because of the multiplicity and complexity of matters which it is obliged to investigate under its terms of reference, but also because of the failure of persons who have been required to provide information to the tribunal, either documentary or otherwise, to provide such information expeditiously or, in some instances, at all.
17-03 Any person duly summoned to do so who gives evidence to the tribunal which is material to its inquiry, which that person wilfully knows to be false or does not believe to be true, or who, by act or omission, obstructs or hinders a tribunal in the performance of its functions, commits a criminal offence.
17-04 There is an obligation upon every witness called to the tribunal to give a truthful account of the matters upon which they are questioned, and failure to do so can amount to a failure to co-operate with the tribunal, which can have serious consequences both as regards costs and otherwise.
In its review of the evidence proffered to the tribunal in the modules in which the tribunal has heard evidence to date, the tribunal has concluded that the following persons and corporate entities have hindered, obstructed or not co-operated with the tribunal to the extent set out here-under.
The findings made against Mr Joseph Murphy snr and Mr Joseph Murphy jnr apply pari passu to the companies within the Murphy Group to whom legal representation was granted, including Joseph Murphy Structural Engineers Ltd, Lajos Holdings Ltd, the Grafton Construction Company Ltd, Reliable Construction (Dublin) Ltd, Barrett Developments Ltd (in liquidation), Turvey Estates Ltd, Finglas Industrial Developments Ltd (in Liquidation), Helmdale Ltd (in liquidation), Gaiety Stage Production Ltd, Gaiety Theatre (Dublin) Ltd, Finglas Industrial Estates Ltd and Wexburn Ltd.
The findings made against Mr Michael Bailey, Mr Tom Bailey and Mrs Caroline Bailey apply equally to Bovale Developments Ltd.
BRENNAN & MCGOWAN MODULE
Mr Ray Burke
17-05 The tribunal is satisfied that Mr Burke obstructed and hindered the tribunal by:
(a) failing to provide the tribunal with a truthful account of the circumstances in which he came to acquire ownership of the property known as Briargate, Malahide Road, Swords, Co Dublin;
(b) furnishing an account as to how he had financed the acquisition of the property which he knew to be false;
(c) failing to provide the tribunal with a truthful account as to why he had opened offshore bank accounts in the Isle of Man and in Jersey, Channel Islands;
(d) falsely maintaining that the offshore accounts opened by him were opened to receive the proceeds of political fundraising events in the United Kingdom when he knew that this was not the true source of the funds so deposited;
(e) falsely representing that a sum of £15,000, lodged to his Jersey account in April 1985 was a relodgement of funds earlier withdrawn from the same account at a time when he knew this to be false;
(f) colluding with Mr Tom Brennan and Mr Joseph McGowan to give false accounts as to how the funds lodged to his offshore accounts had been paid into his accounts and as to the source of these funds; and
(g) failing to give a truthful account of the real purposes for which these monies were paid by Mr Brennan, Mr McGowan, Mr Finnegan and companies related to them.
Mr Tom Brennan and Mr Joseph McGowan
17-06 The tribunal is satisfied that these two witnesses colluded in their evidence, and that the evidence of each was adopted as accurate by the other. The tribunal believes that these witnesses obstructed and hindered the tribunal by:
(a) failing to give the tribunal a truthful account of the circumstances in which their monies were paid to Mr Burke outside the jurisdiction;
(b) falsely maintaining that the monies paid to Mr Burke were the proceeds of fundraising activities in the UK at a time when they knew this not to be the case;
(c) failing to give the tribunal a truthful account of the real purpose for which these monies were paid to Mr Burke;
(d) colluding with Mr Burke to give a false account as to how these funds were raised so as to prevent the tribunal from establishing the true source and purpose for such payments;
(e) failing to give the tribunal a truthful account as to the real purpose for which offshore corporate entities were maintained by them from which monies were paid to Mr Burke;
(f) failing to give the tribunal a truthful account of the nature and extent of their dealings with Bedell Cristin Advocates;
(g) failing to provide the tribunal with a truthful account of their relationship with Mr John Finnegan and the land transactions which resulted in £2,661,875.96 being sent to Jersey.
Mr John Finnegan
17-07 The tribunal is satisfied that Mr John Finnegan obstructed and hindered the tribunal by: (a) failing to provide a truthful account of the circumstances in which £10,000, from a fund beneficially owned by him, was paid to Mr Ray Burke in November 1984;
(b) falsely maintaining that the £10,000 payment to Mr Burke was a sum which was intended to be paid to a fund for the provision of future expenses by Canio Ltd at a time when he knew this to be false;
(c) failing to give a truthful account of the circumstances in which Canio Ltd was formed, or of the nature and extent of his dealings with Mr Tom Brennan Mr Joseph McGowan and their related companies;
(d) failing to make proper discovery of documents to the tribunal;
(e) failing to provide the tribunal with a truthful account of the purposes for which the Amber Trust and Foxtown Investments Ltd had been formed.
Mr John Caldwell
17-08 The tribunal is satisfied that Mr Caldwell, the legal adviser to Mr Tom Brennan and to Brennan and McGowan related companies from the 1980s, was in a position to provide information which could have assisted the tribunal in establishing the nature and extent of Brennan and McGowan activities in the Channel Islands. The tribunal is satisfied that Mr Caldwell failed to co-operate with the tribunal by:
(a) failing to provide a proper Affidavit of Discovery in compliance with an Order for Discovery and Production made against him on April 4th, 2001;
(b) failing to comply with an Order for Discovery made against him on August 10th, 2001; and
(c) failing to comply with a witness summons requiring his attendance at a public session of the tribunal on September 27th, 2001.
Mr Hugh V Owens
17-09 Mr Owens was an accountant and adviser to Messrs Brennan and McGowan. The tribunal is satisfied that he failed to co-operate with the tribunal by failing to provide a full explanation of the schemes which he had devised for Messrs Brennan and McGowan in relation to the land transactions with which they were involved with Mr Finnegan and which resulted in funds being distributed in Jersey from which Mr Burke received £60,000 sterling in November 1984.
THE CENTURY RADIO MODULE
Mr Ray Burke
17-10 In relation to this module the tribunal is satisfied that Mr Burke obstructed and hindered the tribunal by:
(a) failing to give a truthful account of the circumstances and considerations which led to his issuing a directive pursuant to Section 16 of the Radio and Television Act, 1988, on March 14th, 1989, fixing the level of transmission charges to be paid to RTÉ by Century;
(b) failing to give a truthful account of the circumstances which led to the payment to him of a sum of £35,000 by Mr Oliver Barry in May 1989; and
(c) failing to give a truthful account as to the circumstances and
considerations which led to the introduction by him of legislation to curb RTÉ's advertising revenue in 1990.
Mr Oliver Barry
17-11 The tribunal is satisfied that Mr Oliver Barry obstructed and hindered the tribunal by:
(a) failing to provide a truthful account as to why he had paid Mr Burke £35,000 in May 1989;
(b) failing to provide the tribunal with a truthful account of the role played by him and Mr Stafford in ensuring that Mr Burke issued a directive in March 1989 to RTÉ concerning transmission charges;
(c) failing to give a truthful account of the role played by him and by Mr Stafford in ensuring that Mr Burke would introduce legislation to cap RTÉ's advertising income, to redistribute RTÉ's licence fee income and to change the role of 2FM;
(d) failing to provide a truthful account of the reimbursement to him of the £35,000 paid to Mr Burke in May 1989; and
(e) failing to comply with the tribunal's Order for Discovery within the time limited for so doing or within a reasonable time thereafter.
Mr James Stafford
17-12 The tribunal is satisfied that Mr Stafford obstructed and hindered the tribunal by:
(a) failing to give a truthful account of his knowledge of the payment of £35,000 made by Mr Barry to Mr Burke;
(b) failing to give the tribunal a truthful account as to why Mr Barry had paid Mr Burke £35,000;
(c) failing to give a truthful account of the role played by him and by Mr Barry in ensuring that Mr Burke would introduce legislation to cap RTÉ's advertising income, to redistribute RTÉ's licence fee income and to change the role of 2FM;
(d) failing to provide a truthful account of the reimbursement to Mr Barry of the £35,000 paid to Mr Burke in May 1989; and
(e) giving a false account as to how the Century figures of £375,000 for transmission charges were calculated.
Mr P.J. Mara
17-13 The tribunal is satisfied that Mr P.J. Mara failed to co-operate with the tribunal by:
(a) failing to provide the tribunal with details of an account in the name of Pullman Ltd, operated by him at Royal Bank of Scotland in the Isle of Man, when swearing his Affidavit of Discovery made pursuant to an order of the tribunal requiring him to discover, inter alia, any such account.
THE GOGARTY MODULE
Mr Ray Burke
17-14 The tribunal is satisfied that Mr Burke obstructed and hindered the tribunal in this module by:
(a) failing to give the tribunal a truthful account of the circumstances in which he came to receive monies from JMSE at his home in June 1989;
(b) falsely maintaining that Mr Joseph Murphy jnr was not present at such a meeting when he knew this to be untrue;
(c) offering in evidence an account of events as to what occurred at the meeting at his home with Mr Gogarty when he knew this to be untrue; and
(d) failing to give a truthful account of the nature of his relationship with Mr Michael Bailey and the purposes for which the meeting at his home had been arranged by Mr Bailey.
Mr Joseph Murphy snr
17-15 The tribunal is satisfied that Mr Joseph Murphy snr obstructed and hindered the tribunal by:
(a) failing to give a truthful account of the circumstances in which the Murphy north Dublin lands came to be sold;
(b) failing to give a truthful account of the circumstances in which Mr James Gogarty came to attend the meeting at Mr Burke's home in June 1989, at which Mr Burke was paid money by JMSE;
(c) failing to give a truthful account as to the circumstances in which JMSE's money came to be paid to Mr Burke on his instructions and with his authority;
(d) failing to provide proper discovery to the tribunal in breach of an Order for Discovery made against him;
(e) falsely claiming that he had no bank accounts in Ireland from 1976 onwards when he knew this to be untrue; and
(f) colluding with Mr Joseph Murphy jnr, Mr Frank Reynolds, and Mr Roger Copsey to give a false account of the role played by Mr James Gogarty in connection with the Murphys' north Dublin lands and his knowledge of the participation proposal advanced by Mr Michael Bailey in relation thereto.
Mr Joseph Murphy jnr
17-16 The tribunal is satisfied that Mr Joseph Murphy jnr obstructed and hindered the tribunal by:
(a) failing to give a truthful account of the circumstances in which he came to attend a meeting at the home of Mr Burke in June 1989, at which he handed to Mr Burke a sum of not less than £30,000;
(b) failing to give a truthful account of his dealings with Mr Michael Bailey with regard to the participation proposal, in which it was envisaged that Mr Michael Bailey would receive 50 per cent of the value of the Murphys' north Dublin lands in return for procuring planning permission and building bye-law approval in respect thereof;
(c) giving a false account of the involvement of Mr James Gogarty in the sale of the Murphy lands and the role played by him in connection with the payment of JMSE monies to Mr Burke;
(d) giving a false account of his dealings with Mr Michael Bailey subsequent to the publication of the Sunday Business Post articles; and
(e) falsely constructing an alibi which was untrue.
Mr Roger Copsey
17-17 The tribunal is satisfied that Mr Roger Copsey obstructed and hindered the tribunal by:
(a) giving a false account of his involvement in the assembly of the funds paid by JMSE to Mr Burke;
(b) falsely attributing a role to Mr Gogarty in the payment of monies to Mr Burke, which Mr Gogarty had not exercised;
(c) failing to give a truthful account of his dealings with Mr Joseph Murphy snr, Mr Joseph Murphy jnr, and Mr Frank Reynolds in relation to the payment of JMSE's monies to Mr Burke; and
(d) failing to provide the tribunal with a true explanation for the accounting entries made in the books of JMSE and Grafton in relation to the monies paid to Mr Burke.
Mr Frank Reynolds
17-18 The tribunal is satisfied Mr Frank Reynolds obstructed and hindered the tribunal by:
(a) failing to give a truthful account of his involvement in the assembly of funds which were paid to Mr Burke by JMSE;
(b) falsely ascribing to Mr Gogarty a role in the payment of monies to Mr Burke which he knew to be untrue;
(c) failing to give a truthful account of his dealings with Mr Michael Bailey;
(d) failing to give a truthful account of the steps taken by him subsequent to the publication of the Gogarty allegations in the Sunday Business Post editions of March 30th and April 6th, 1996; and
(e) colluding with Mr Joseph Murphy snr, Mr Joseph Murphy jnr, and Mr Roger Copsey to present a false account to the tribunal of the role played by Mr James Gogarty in the payment of JMSE monies to Mr Ray Burke.
Mr Tim O'Keeffe
17-19 The tribunal is satisfied that Mr O'Keeffe obstructed and hindered the tribunal by:
(a) failing to give a truthful account of his knowledge of the payment of monies by JMSE to Mr Burke; and
(b) giving an explanation for his accounting entries and the preparation of the "Grafton/Reliable cash balance" document which he knew to be false.
Mr John Bates
17-20 The tribunal is satisfied that Mr John Bates obstructed and hindered the tribunal by:
Failing to give a truthful account of his reasons for treating the payment of £30,000 of the funds of Grafton Construction Company Ltd, to Mr Burke, as payments involving land enhancement expenditure in the documents prepared by him in connection with the annual returns of Grafton Construction Company Ltd to the year ended May 31st, 1990.
Mr Michael Bailey
17-21 The tribunal is satisfied that Mr Michael Bailey hindered and obstructed the tribunal by:
(a) giving a false account of the circumstances surrounding the meeting attended by him at the home of Mr Burke in June 1989;
(b) falsely claiming that he had paid Mr James Gogarty a sum of £162,000 in respect of a finder's fee connected with the sale of the Murphy north Dublin lands to Mr Bailey's company;
(c) failing to respect the confidentiality of documents provided to him by the tribunal - on terms that they would only be considered by him and his legal advisers - by disclosing the contents thereof to Mr Jody Corcoran, a journalist with the Sunday Independent, with the intention that the integrity of the tribunal would thereby be damaged;
(d) claiming that he was unable to co-operate fully with the tribunal due to a fear that his communications with the tribunal would be leaked to the media at a time when he was a person responsible for leaking information to the press;
(e) failing to make proper discovery of the financial accounts and records which had been sought from him and his company by the tribunal;
(f) providing false explanations for accounting entries in the financial records provided to the tribunal;
(g) failing to provide the tribunal with a truthful account of what he had given to Mr Burke at the meeting attended by Mr James Gogarty at Mr Burke's home in June 1989; and
(h) Colluding with his brother, Mr Tom Bailey, to give a false account of his dealings with Mr James Gogarty.
Mr Tom Bailey
17-22 Mr Tom Bailey obstructed and hindered the tribunal by:
(a) colluding with his brother, Mr Michael Bailey, to give a false account of his dealings with Mr James Gogarty;
(b) falsely alleging that £50,000 in cash and two cheques were given to Mr James Gogarty at the Royal Dublin Hotel in November 1989;
(c) failing to give a truthful account of his financial dealings; and
(d) failing to provide to the tribunal all financial records that were the subject of Orders for Discovery made against him and his companies.
Mrs Caroline Bailey
17-23 Mrs Caroline Bailey obstructed and hindered the tribunal by:
(a) failing to comply with Orders for Discovery made by the tribunal;
(b) failing to provide a truthful account as to the existence of bank accounts held in her name at Bank of Ireland, Phibsboro, and Bank of Ireland, Swords;
(c) preparing a notebook, said to record payments to Mr James Gogarty, which she knew to be a false document; and
(d) failing to inform the tribunal that cheque journals provided by her to the auditors of Bovale Developments Ltd were subsequently altered, prior to being sent to the tribunal on foot of an Order for Discovery.