HEARING OF THE TRIBUNAL OF INQUIRY INTO COMPLAINTS CONCERNING SOME GARDAI IN THE DONEGAL DIVISION HEARD BEFORE THE HONOURABLE MR. JUSTICE FREDERICK MORRIS ON TUESDAY, 16TH JANUARY 2007 - DAY 547 (MODULE 6) ARREST AND DETENTION OF FRANK McBREARTY JUNIOR I hereby certify the following to be a true and accurate transcript of my shorthand notes. _____________________ Stenographer INDEX WITNESS EXAMINATION PAGE NO'S MR. FRANK McBREARTY JUNIOR CROSS - MR. BIRMINGHAM 3 - 37. CROSS - MS. QUINN 38 - 43. CROSS - MR. T. MURPHY 45 - 141. 1 THE TRIBUNAL RESUMED, AS FOLLOWS, ON TUESDAY, 2 16TH JANUARY 2006 AT 10A.M: 3 4 MR. T. MURPHY: Mr. Birmingham. 5 CHAIRMAN: I beg your pardon. Yes, 6 Mr. Birmingham. 7 MR. BIRMINGHAM: Thank you, sir. 8 9 10 MR. FRANK McBREARTY JUNIOR WAS THEN CROSS-EXAMINED, 11 AS FOLLOWS, BY MR. BIRMINGHAM: 12 13 1 Q. MR. BIRMINGHAM: Mr. McBrearty, you will 14 recall yesterday that the 15 Chairman and Counsel for the Tribunal indicated that 16 they felt it would be appropriate that we should put 17 to you in greater detail the circumstances in which 18 you came to sign the confession? 19 A. I didn't sign a confession. 20 2 Q. Pardon? 21 A. I didn't sign a confession. 22 3 Q. I understand fully...(INTERJECTION) 23 A. Well first of all I am going to tell you what I think 24 of you and I don't care what the Chairman says. 25 You're the Government's lapdog, that's what you are. 26 That's what you exactly are. You're the Government's 27 lapdog. Michael McDowell, you've protected Michael 28 McDowell, but you won't be able to protect him for 29 much longer let me tell you, Mr. Birmingham. How you 3 1 can sit there knowing that a conflict of 2 interest...(INTERJECTION) 3 4 Q. CHAIRMAN: Mr. McBrearty, you must not 4 engage in this sort of 5 abuse. 6 A. Hold on a minute. The Garda Commissioner was 7 excluded from my High Court proceedings and you're 8 sitting there representing the guards. 9 5 Q. CHAIRMAN: Mr. McBrearty, I must ask 10 you to stop. 11 A. Look what you done in the Dean Lyons case. You're 12 the white collar, you're 30 pieces of silver, that's 13 what you are. 14 6 Q. CHAIRMAN: Mr. McBrearty, I must ask 15 you to stop there. 16 A. I won't. I'll tell him what I think of him. 17 7 Q. CHAIRMAN: Mr. McBrearty 18 ...(INTERJECTION) 19 A. That's what you are, you're a Government's lapdog, 20 Mr. Birmingham. I'm not your lapdog. 21 8 Q. CHAIRMAN: Would you turn off 22 Mr. McBrearty's microphone. 23 Mr. McBrearty, I must ask you to observe the ordinary 24 courtesies and I will not...(INTERJECTION) 25 A. Why would you pay me 1.5 million, Mr. Birmingham, if 26 I made a confession. 27 9 Q. CHAIRMAN: I will not tolerate you 28 going on like this, abusing 29 counsel. 4 1 A. The largest amount of a settlement ever paid by the 2 Irish Government, why did you agree to pay 1.5 3 million? 4 10 Q. CHAIRMAN: I am going to rise now and 5 I will continue when 6 Mr. McBrearty pulls himself together. 7 A. Lapdog. You see I'm not Dean Lyons, Mr. Birmingham. 8 I'm not a heroin addict. 9 10 11 SHORT ADJOURNMENT 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 5 1 THE TRIBUNAL RESUMED, AS FOLLOWS, AFTER THE SHORT 2 ADJOURNMENT 3 4 CHAIRMAN: Mr. Birmingham, will you 5 try and put your questions 6 to Mr. McBrearty please. 7 11 Q. MR. BIRMINGHAM: Yes, sir. Mr. McBrearty, I 8 was explaining that at the 9 request for Counsel for the Tribunal and the Chairman 10 I am simply going to put to you formally the 11 circumstances in which you came to sign the 12 confession. 13 A. I didn't sign a confession. 14 12 Q. There is no point in us getting into an argument 15 about that? 16 A. You're saying I said I signed a confession, I'm 17 telling you I didn't. 18 13 Q. Well factually the position is...(INTERJECTION) 19 A. No, there's no factuals, there's no evidence that I 20 signed a confession. 21 14 Q. There's the evidence of umpteen handwriting experts 22 that...(INTERJECTION) 23 A. Page two, Mr. Birmingham, on page two my signature, 24 not on page one. And if you look at the laws of 25 evidence, there's no caution, proper caution or 26 initial on that statement. 27 15 Q. In any event...(INTERJECTION) 28 A. Do you know the law, Mr. Birmingham, because that's 29 the what the guards are supposed to do, caution you 6 1 and initial the statement before they take it. 2 16 Q. Mr. McBrearty, I am going to put to you the 3 circumstances in which you came to sign that 4 document? 5 A. Hurry up and do it. 6 17 Q. I am going to suggest, Mr. McBrearty, that the 7 signature of that document, the ultimate production 8 of that document had its origin in an interview that 9 he occurred between 5.01 and 6.10, which was 10 conducted by my client, Detective Sergeant Melody, 11 who was accompanied by Detective Garda Fitzpatrick. 12 I am suggesting to you that towards the end of that 13 session that they said to you, you should think about 14 telling us the truth about what happened that night, 15 the facts are that Richie Barron died as a result of 16 one or more blows to the head, either you or Mark 17 McConnell hit him on the top of the head with 18 something, we don't know what it was, only you and 19 Mark can tell us that. And that to 20 that...(INTERJECTION) 21 A. No, that's a lie because all day the theory was that 22 I hit Richie Barron with an iron bar. The whole day. 23 18 Q. Mr. McBrearty...(INTERJECTION) 24 A. No, I'm telling you that's a lie. 25 19 Q. Mr. McBrearty, would you let me finish the question? 26 A. That's a lie because I did not say in any interview 27 that I would go back to the cell and think about what 28 I have got to say, because that's bullshit, 29 Mr. Birmingham. 7 1 20 Q. Mr. McBrearty...(INTERJECTION) 2 A. That's a lie. That's a lie concocted up by four 3 officers who are experts at planting evidence and 4 planting statements on people. 5 21 Q. Mr. McBrearty...(INTERJECTION) 6 A. That's exactly what happened. They planted a 7 statement on me to try and convict me for a crime I 8 didn't commit. 9 22 Q. Mr. McBrearty, will you please listen to the question 10 you're being asked? 11 A. I'm telling you that's a lie what you're saying. 12 23 Q. CHAIRMAN: Please, Mr. McBrearty, 13 would you ever just hear 14 the question? 15 A. He's telling lies. 16 24 Q. CHAIRMAN: Please just listen to me 17 for a moment. I have no 18 doubt you're going to deny what Mr. Birmingham puts 19 to you but it is in fairness to you, it's right that 20 you should get an opportunity of denying it if that 21 is what you want to do. 22 A. Fairness, Chairman, there's no fairness in here 23 because I don't have a legal team to cross-examine 24 them. 25 25 Q. CHAIRMAN: Please don't start arguing. 26 This is the procedure now. 27 Would you listen to the question and...(INTERJECTION) 28 A. We all know the procedure for the last four years. 29 26 Q. CHAIRMAN: Can you listen to the 8 1 question please and if you 2 want to deny it, please do so. 3 A. I'm denying everything because I didn't make a 4 confession. Simple as that. 5 27 Q. MR. BIRMINGHAM: Mr. McBrearty, I'm 6 suggesting to you that the 7 Gardaí made that remark to you and that you made no 8 response at that stage? 9 A. That's totally untrue because I constantly, the whole 10 day, from the moment I was in that Garda station 11 until the moment I was released, protested my 12 innocence. So at no stage in that Garda station did 13 I make no comment. Because I gave them as good as 14 what they gave me. And I didn't do it in a violent 15 manner. I did it protesting my innocence. 16 Protesting my innocence, which I'm doing here after 17 ten years. And where you, Mr. Birmingham, paid made 18 me 1.5 million in the High court. 19 28 Q. Mr. McBrearty...(INTERJECTION) 20 A. Did you not pay me 1.5 million? 21 29 Q. CHAIRMAN: Please, Mr. McBrearty. 22 A. Did you not pay me 1.5 million? 23 MR. BIRMINGHAM: Can I make an observation, 24 sir. 25 CHAIRMAN: Yes. 26 MR. BIRMINGHAM: The position yesterday is 27 that Mr. Cush concluded his 28 cross-examination. A cross-examination that had been 29 rendered all but meaningless as a result of 9 1 Mr. McBrearty's behaviour. But he concluded his 2 observation. Mr. McDermott requested that we would 3 formally put the circumstances in which Mr. McBrearty 4 came to sign the confession. You indicated that you 5 regarded that as appropriate. And, sir, that's what 6 I you am trying to do at the request of Mr. McDermott 7 and you, sir, but Mr. McBrearty...(INTERJECTION) 8 A. Well that's fine, carry on, Mr. Birmingham. 9 30 Q. If Mr. McBrearty doesn't want this, I am perfectly 10 happy to sit down? 11 A. I will sit here until kingdom come. 12 31 Q. It's our desire to comply with the advice or 13 directions of you, sir, and of Counsel for the 14 Tribunal? 15 A. That's fine, you ask the questions and I'll answer 16 them. 17 32 Q. CHAIRMAN: Mr. McBrearty, will you 18 listen to me for a moment. 19 What Mr. Birmingham is doing is, not trying to pick 20 an argument with you. 21 A. He's trying to get his clients off the hook, 22 Chairman. 23 33 Q. CHAIRMAN: Not trying to annoy you, 24 not trying to stir you up. 25 What he's doing is, he's going to outline for you 26 what the various guards are going to say when they 27 come to give evidence. The purpose of this is to 28 allow you to comment on it if you wish. Not in an 29 argumentative way but if you wish to deny it, then 10 1 that's your right. Now, if you don't want him to do 2 that, then we won't do it. 3 A. I want him to do it. I want to thrash it out. 4 34 Q. CHAIRMAN: All right, we'll go through 5 this procedure but I must 6 ask you first of all to listen to the question and to 7 answer it in an un-argumentative way, if you please. 8 35 Q. MR. BIRMINGHAM: Now, I'm suggesting to you 9 that after that observation 10 was made to you, to which you made no reply, that the 11 Gardaí then said you should consider telling us the 12 truth and make a written statement about what 13 happened that night, do you understand. And I'm 14 suggesting to you that you responded by saying, I'll 15 think about it. 16 A. That's totally untrue. 17 36 Q. I understand that's your position. I'm suggesting to 18 you that at that stage the notes of that interview 19 were read over, you were asked if they were correct, 20 you acknowledged that they were correct? 21 A. Totally untrue. No notes were read over to me 22 because if they had been read over to me I would have 23 said that's not correct. 24 37 Q. All right? 25 A. And I mean why would I say...(INTERJECTION) 26 38 Q. Mr. McBrearty, I have your position on that? 27 A. Why would I sign a custody sheet, the release sheet, 28 sign a permission slip giving permission to search my 29 house to Niall Coady and make two statements, one I 11 1 was at my work and one I already made a statement, 2 and not sign the memo of interview? That doesn't 3 make sense? 4 39 Q. I am suggesting to you...(INTERJECTION) 5 A. You see, Mr. Birmingham, I have nothing whatsoever to 6 hide. If the interview note was read to me and it 7 was correct, I would have signed it. And I would 8 have complained about it not being correct if it 9 wasn't correct. So there was no interview notes. 10 There possibly could have been writing, they could 11 have been writing all day, I can't remember. But I 12 can tell you this much, I was never asked to sign a 13 memo of interview written by any of those officers. 14 40 Q. CHAIRMAN: Mr. McBrearty, could you 15 just clarify this for me? 16 Are you saying at that no stage were you ever asked 17 to sign notes? 18 A. None whatsoever. 19 41 Q. CHAIRMAN: And in particular not on 20 this occasion? 21 A. Yes. Well I don't know -- I don't even know what 22 particular incident he's talking about because my 23 recollection is that I was abused constantly, 24 physically and mentally and I was told at that stage 25 do them a favour, hang myself in the cells because I 26 was going to get shagged in Mountjoy, that's what 27 they told me. 28 42 Q. CHAIRMAN: All right. I think could 29 you pass on to the next 12 1 then. 2 A. So that doesn't correspond from what I remember the 3 times I was taken to the cell. 4 43 Q. MR. BIRMINGHAM: I'm suggesting to you that 5 you refused to sign and I'm 6 suggesting to you that...(INTERJECTION) 7 A. That's not true. 8 44 Q. That that happened at about 6.10p.m., and the 9 significance of is that is that a conference had been 10 scheduled for six o'clock and because of the fact 11 that at the end of the session you were contemplating 12 the possibility of making a statement, that they were 13 late to the conference, late to the scheduled 14 conference? 15 A. I can't speak for them being late to the conference. 16 That is totally untrue, the scenario you are putting 17 to me. Because I remember specifically the two times 18 I was put to the cells that I was told to hang myself 19 on one of the occasions and on the other occasion, do 20 us a favour, you'll be shagged in Mountjoy. That's 21 what they told me when I was being taken to the 22 cells. 23 45 Q. CHAIRMAN: Mr. McBrearty, would you 24 list on to me again please, 25 this is what they say happened...(INTERJECTION) 26 A. I'm telling you what I say happened when I was taken 27 to the cells. 28 46 Q. CHAIRMAN: That's exactly what I am 29 going to ask you. 13 1 A. He's saying to me. 2 47 Q. CHAIRMAN: Please, would you just 3 listen to me. That's what 4 they are saying happened, now what do you say 5 happened, just before the break what happened? 6 A. You see the thing about it, I didn't have a watch or 7 I didn't have any... 8 48 Q. CHAIRMAN: I know but the break 9 happened. Do you remember 10 the break happening? 11 A. I remember the break happening. 12 49 Q. CHAIRMAN: All right. They're 13 saying...(INTERJECTION) 14 A. I remember a guard coming in and saying it's time for 15 a meal break. 16 50 Q. CHAIRMAN: Let's one of us talk at a 17 time. Do you remember 18 before the break, do you remember anything of 19 outstanding importance happening. They say you were 20 asked to make a statement and you said you would 21 consider it. Now do you remember before the break? 22 A. Total lies because I'll tell you something now, 23 Mr. Birmingham. 24 51 Q. CHAIRMAN: What do you say happened. 25 A. If you don't know me by now. 26 52 Q. CHAIRMAN: What do you say happened 27 before the break? 28 A. Before I was taken to the cells, and I don't know 29 which occasion it was, I was told, this was I would 14 1 say halfway through the day, I was told on one of the 2 occasions I was being taken to the cells do us a 3 favour and hang yourself down there because they were 4 getting nowhere with me, Mr. Birmingham, and that's 5 why they said it. They were getting nowhere with an 6 innocent man. You see, because an innocent man will 7 protest his innocence until the day he dies. 8 53 Q. CHAIRMAN: We're at about ten past six 9 now in the evening? 10 A. Chairman, you're putting to me times. 11 54 Q. CHAIRMAN: Please? 12 A. Chairman. 13 55 Q. CHAIRMAN: Please? 14 A. No, but you have to understand. 15 56 Q. CHAIRMAN: Yeah. 16 A. I was in a room. 17 57 Q. CHAIRMAN: I know that. 18 A. I didn't know what time it was. 19 58 Q. CHAIRMAN: You hadn't a watch and you 20 didn't know the time. 21 A. No, all I know it was dark. 22 59 Q. CHAIRMAN: Please listen to me, I'm 23 trying to straighten this 24 out, there's a conflict between the two of you, 25 that's what they say happened, have you any knowledge 26 of what happened? 27 A. None -- that's a total lie what they are telling, 28 they've told lies for ten years. 29 60 Q. CHAIRMAN: That's a lie. But do you 15 1 have any recollection of 2 anything happening? 3 A. No, I never admitted to anything in that station 4 because how could I admit to something I didn't do. 5 61 Q. CHAIRMAN: Sorry, I don't know if you 6 are understanding me. 7 A. But you don't understand me. How can I admit -- he's 8 suggesting, he's suggesting that I said to the four 9 officers or to the two officers, whatever, whoever 10 was in the room with me. 11 62 Q. CHAIRMAN: Yeah. 12 A. That I would think about telling the truth. I was 13 telling the truth. I didn't have to say that. They 14 have made that up to suit their confession. 15 63 Q. CHAIRMAN: Don't get aggressive again, 16 please. 17 A. I'm not being aggressive, I'm angry. 18 64 Q. CHAIRMAN: Don't get angry then. 19 A. And there's a difference between aggressive and 20 angry, if you want me to bring in a psychiatrist to 21 tell you the difference is. 22 65 Q. CHAIRMAN: Don't get angry. Please, 23 would you tell me this: 24 Have you any recollection of anything happening 25 before the break? 26 A. I told you what happened, I was told to hang myself 27 in the cells. 28 66 Q. CHAIRMAN: That's earlier in the day? 29 A. No it's not, I would estimate it was that period. 16 1 67 Q. CHAIRMAN: This was just at the time 2 when they say you made the 3 statement, that was the time that they told you to go 4 and hang yourself is? 5 A. No. 6 68 Q. CHAIRMAN: Is that right? 7 A. No, he's saying, Chairman, he's saying the period 8 before they say that I made the confession that I 9 said when I went back to the cells -- 10 69 Q. CHAIRMAN: Yeah. 11 A. -- I said I would think about coming back and telling 12 them the full truth. 13 70 Q. CHAIRMAN: Yeah, that's right. 14 A. That's totally untrue, that never happened. 15 71 Q. CHAIRMAN: All right. But do you 16 remember anything that did 17 happen? 18 A. Yes, I remember that I got into a confrontation with 19 Fitzpatrick, he told me he would fuck me through the 20 window, and how I know is because it was dark 21 outside. Because there was a window in the room. I 22 could take you into the station, Chairman, and I can 23 show you the room I was in. 24 CHAIRMAN: Right, Mr. Birmingham, what 25 is the next thing. 26 A. I was told, Mr. Birmingham, that I was going to be 27 fucked through the window. 28 72 Q. MR. BIRMINGHAM: Mr. McBrearty, we're 29 moving on. 17 1 A. Hold on a minute, you want to know what happened 2 during that period. I was told I was going to be 3 fucked through the window...(INTERJECTION) 4 73 Q. Mr. McBrearty, I put to you what 5 happened...(INTERJECTION) 6 A. And I said to Fitzpatrick if you are going to fuck me 7 through the window you're coming along with me. 8 74 Q. Sir, I really have to say I just think this is a 9 pointless exercise at this stage...(INTERJECTION) 10 A. No, it's not pointless. 11 75 Q. And as far as I am concerned the cross-examination is 12 at an end? 13 A. You've got your clients off the hook. 14 76 Q. CHAIRMAN: Mr. McBrearty, I had hoped 15 that we might be able to do 16 this in an orderly way. Now you see what's happened 17 because you won't conduct the...(INTERJECTION) 18 A. I'm doing my best, Chairman. I'm trying to think 19 about -- I don't know, I didn't have times or 20 estimations of what was in the room. 21 77 Q. CHAIRMAN: No. 22 A. But the scenario he put to me is totally false. That 23 never happened. 24 78 Q. CHAIRMAN: You see Mr. McBrearty, I'm 25 not critical of you now, do 26 you understand me. But if you would only answer the 27 questions that you are asked. 28 A. Well that's fine then, if Mr. Birmingham wants to ask 29 me again I'll change my manner. 18 1 CHAIRMAN: Let's try. 2 MR. BIRMINGHAM: I accept that. 3 79 Q. CHAIRMAN: Mr. McBrearty, can I say 4 this, and please I'm trying 5 to do this in everybody's interests 6 now...(INTERJECTION) 7 A. But you've no idea, Chairman, what...(INTERJECTION) 8 80 Q. CHAIRMAN: Please, would you listen to 9 me. 10 A. What this has done to me. 11 81 Q. CHAIRMAN: Don't try and talk me down? 12 A. I'm not talking you down. I'm pleading with you, I'm 13 telling you. You've no idea what this has done to me 14 and my family. 15 82 Q. CHAIRMAN: Now, let's all try and do 16 this in an orderly way, if 17 you would answer the questions and not make 18 accusations against anybody. 19 A. I'm not making accusations. I'm telling the truth. 20 CHAIRMAN: Now, Mr. Birmingham, 21 please. 22 83 Q. MR. BIRMINGHAM: Mr. McBrearty, will we move 23 on to the session that 24 commenced at 7.05 and can I suggest to you that that 25 commenced with the administration of the traditional 26 caution. In other words that you were told that you 27 didn't have to say anything unless you wished to do 28 so but that anything you did say would be taken down 29 in writing and might be given in evidence. Do you 19 1 accept that you were cautioned? 2 A. No, that's totally false. 3 84 Q. All right. I am suggesting to you that at that stage 4 you were asked if you were willing to make a 5 statement, which was obviously a follow on to the 6 expression of interest on your part in the earlier 7 session, and that you responded by saying that you 8 were. I'm suggesting to you that at that stage 9 Detective Sergeant Melody began to write out the 10 heading of the statement, including the words of the 11 caution and that that was proffered to you and that 12 you refused to sign or initial the caution? 13 A. Totally untrue. 14 85 Q. I am suggesting to you that even as he was writing 15 the words of the heading and the caution that you 16 went off, effectively, on a tangent discussing a 17 number of other issues, do you recall 18 discussing...(INTERJECTION) 19 A. Totally untrue, because my 20 recollection...(INTERJECTION) 21 86 Q. All right, Mr. McBrearty, we have that. I am 22 suggesting that in particular the other issues that 23 you were raising at this stage were your relationship 24 with local people and the problems that you were 25 experiencing there, the difficulties that you were 26 experiencing and the problems you were having with 27 your father and your relationship with the local 28 Gardaí; you don't accept that? 29 A. Totally untrue and I'll tell you why it is totally 20 1 untrue. That is the profile that Detective Garda 2 Michael O'Malley, the false profiles that was created 3 to create a character of our family which was totally 4 untrue, that is not something said by me, something 5 that was told to the four officers from Dublin by the 6 detective branch in Letterkenny, not by me because I 7 have no problem with people in Raphoe. The only 8 problem I have with people in Raphoe is a very small 9 number who have been before this Tribunal who told 10 lies and helped the Gardaí try to frame me for 11 murder. 12 87 Q. Thank you, Mr. McBrearty. Now...(INTERJECTION) 13 A. I didn't say no such thing. 14 88 Q. Thank you, I have that. 15 A. It's them that put that in, whatever they wrote down 16 that's what they were told by the Letterkenny guards. 17 89 Q. Now I'm suggesting to you that as you went off on 18 this tangent that you were interrupted and asked are 19 you going to make a statement? 20 A. Totally false. 21 90 Q. And that you responded by saying, yes, I'll tell you 22 what happened? 23 A. Totally false. 24 91 Q. And that that indeed explains the first line of the 25 statement with its reference to, listen, I'll tell 26 you what happened? 27 A. That's a lie. Because the experts who have given 28 evidence here who are not the proper experts in 29 logistics and document examination have given 21 1 evidence here -- said that the first page and the 2 second page of that statement was free flowing. How 3 did it take from seven o'clock till 25 past eight to 4 write one page of a statement? 5 92 Q. Mr. McBrearty...(INTERJECTION) 6 A. When it was written free flowing. 7 93 Q. Mr. McBrearty, I am asking a question, I'm not 8 inviting a speech in response to it? 9 A. I'm giving you my answer. 10 94 Q. I am suggesting to you that as the statement began to 11 be taken that you constantly went off on tangents and 12 that you were constantly speaking about other issues? 13 A. No. That's totally false. I made no statement. 14 That scenario is totally untrue. 15 95 Q. That you specifically went off speaking about one of 16 the three issues that I mentioned just a moment ago? 17 A. Could you tell me what the three issues are. 18 96 Q. Certainly. Your problems with the local people? 19 A. I had no problems with the local people. 20 97 Q. Your problems with your father and your relationship 21 with the local Gardaí? 22 A. No, I had no problem with the local Gardaí. 23 98 Q. All right, thank you. 24 A. I had no problems with my father. 25 99 Q. All right. 26 A. I might have had work related problems with my father 27 but I never told them that. Where in a family 28 business you have arguments. You think that I would 29 tell a stranger about personal business, you must be 22 1 joking. That's exactly what Mick O'Malley put into 2 his false reports where he was -- made up these false 3 profiles about my family and the evidence is here in 4 this Tribunal to prove it. 5 100 Q. Mr. McBrearty...(INTERJECTION) 6 A. And obviously the guards...(INTERJECTION) 7 CHAIRMAN: Mr. Birmingham, fair is 8 fair, I think that 9 Mr. McBrearty is entitled to say it's not true, I 10 didn't say all this to the guards and I'll 11 demonstrate why I wouldn't. 12 MR. BIRMINGHAM: I absolutely accept that, 13 sir. 14 101 Q. CHAIRMAN: [TO WITNESS] So what did 15 you want to say about that. 16 Do I...(INTERJECTION) 17 A. The profiles prove that the Dublin guards were 18 informed of the lies that were created by the 19 Letterkenny Detective Branch headed by Superintendent 20 John McGinley and pursued by Mick O'Malley. Because, 21 Mr. Birmingham, as you will learn in my father's High 22 Court case in due course where we'll be introducing 23 evidence from a person who gave false information in 24 Raphoe to Mr. Mick O'Malley, you'll soon learn in the 25 High Court about all the false profiles that were 26 created about me and my family by Detective Garda 27 Michael O'Malley who obviously informed the Dublin 28 guards which enabled them to write down things and 29 make it out that I said them. 23 1 CHAIRMAN: Yeah. Very good, I 2 understand. 3 MR. BIRMINGHAM: Sir, can I just make this 4 observation, and I entirely 5 accept your ruling that he is of course not confined 6 to saying I disagree, he's entitled to say I disagree 7 and for this reason. But I respectfully suggest, 8 sir, that he's not entitled to make a speech in 9 response to every question and that I shouldn't be 10 put in the position on behalf of my clients of 11 effectively having to provide opportunities for 12 constant speeches by Mr. McBrearty. 13 A. But your clients will be okay, Mr. Birmingham, 14 because I don't have barristers in here to 15 cross-examine them. 16 CHAIRMAN: Mr. McBrearty, 17 Mr. Birmingham and I are 18 talking about this. I think that it is perfectly 19 reasonable for Mr. McBrearty to say I didn't say this 20 and I will demonstrate where they got that 21 information, it's from what he describes as the false 22 report by Garda O'Malley. I don't see anything wrong 23 with that. 24 MR. BIRMINGHAM: No, no, we're absolutely ad 25 idem on that, sir. 26 CHAIRMAN: Yes. 27 MR. BIRMINGHAM: But I would 28 respectfully suggest that 29 he has at least a tendency to go somewhat beyond 24 1 that. 2 CHAIRMAN: I accept that. But just on 3 the incident that we're 4 talking about now I'm one hundred percent on 5 Mr. McBrearty's side. 6 MR. BIRMINGHAM: Very good, sir 7 CHAIRMAN: But could I -- having said 8 that, Mr. McBrearty, could 9 you confine your answers -- 10 A. Okay, Chairman. 11 CHAIRMAN: -- to any way consistent 12 with justice that you feel 13 appropriate. 14 A. Right, thank you. 15 102 Q. MR. BIRMINGHAM: Now I'm suggesting to you 16 that as you went off on 17 these tangents that you were brought back to the 18 subject matter of the statement and that on a number 19 of occasions the line that had last been written, as 20 it were, was re-read to you to put things in context 21 and to allow you find your place. 22 A. Totally untrue. 23 103 Q. Okay? 24 A. Because I didn't make a confession. 25 104 Q. I'm suggesting to you that on occasions a degree of 26 clarification was sought from you as to what exactly 27 you were saying, that for example at one stage you 28 had mentioned Mark and you were asked to clarify that 29 that was Mark McConnell your cousin, do you recall 25 1 that? 2 A. Totally untrue. 3 105 Q. All right? 4 A. Because I told them all day that from my recollection 5 I didn't remember seeing Mark McConnell and that was 6 my theme the whole day because I still to this day 7 don't remember seeing Mark McConnell. And that's 8 what I told them. 9 106 Q. I'm suggesting that so far as the issue in relation 10 to your father is concerned that you were asked by 11 Detective Sergeant Melody whether you wanted to 12 include a reference to that in the statement and you 13 indicated that you did and Detective Sergeant Melody 14 indicated that he would remind you of that topic 15 before the statement concluded? 16 A. Totally untrue and I'll...(INTERJECTION) 17 107 Q. Very good? 18 A. No, I have to explain this. I was defending my 19 father because the guards were saying that my father 20 had intimidated witnesses and I says my father 21 intimidated nobody. And I was so angry at the fact 22 that they were accusing my father of intimidating 23 witnesses. I don't know if it was Melody or 24 Fitzpatrick or McGrath or O'Grady but I signed the 25 statement with the words to that effect on it, but I 26 did not sign a confession. Because if you look at 27 the confession, page one incriminates me and page two 28 is defending my father. If you look at the way the 29 statement was written, Mr. Birmingham, you will see 26 1 that somebody was in a room practicing all day, 2 trying to cramp in the first page, where you see the 3 lines at the end of the sentences where such words as 4 and at could have been put into the statement? 5 108 Q. CHAIRMAN: Mr. McBrearty 6 ...(INTERJECTION) 7 A. They were practicing all day. 8 109 Q. CHAIRMAN: Mr. McBrearty, can you help 9 me with this please? 10 A. They were practicing all day in a room beside where I 11 was being interrogated, so they could cramp in what 12 they wanted to cramp in in order to plant a statement 13 on me. 14 110 Q. CHAIRMAN: Mr. McBrearty, could you 15 help me with this: Did I 16 understand you to say that you did make a statement 17 and signed a statement to the effect that your father 18 would not bribe witnesses on your behalf? 19 A. That's correct. That's what I have always told the 20 Tribunal that. 21 111 Q. CHAIRMAN: Yeah? 22 A. And I was so angry at the fact that they were 23 accusing my father of bribing 24 witnesses...(INTERJECTION) 25 112 Q. CHAIRMAN: Do you remember signing 26 that statement? 27 A. You see this is the format. 28 113 Q. CHAIRMAN: Do you remember signing 29 that statement? 27 1 A. I remember signing something to that effect. 2 114 Q. CHAIRMAN: Did you sign it for these 3 two? 4 A. I don't know if it was them two or the other two. 5 115 Q. CHAIRMAN: Yeah. 6 A. Because I was so angry my family was being accused of 7 a crime we had nothing whatsoever to do with. 8 116 Q. CHAIRMAN: What did you actually say 9 in the one that you signed? 10 A. I don't know. 11 117 Q. CHAIRMAN: Give us an idea. 12 A. They were saying to me, we know your father was 13 intimidating witnesses and I said, my father never 14 intimidated nobody. 15 118 Q. CHAIRMAN: Right. That's the bones of 16 what you said in the 17 statement you signed? 18 A. I have said a lot more verbally, I fucked them out of 19 it. 20 119 Q. CHAIRMAN: I know but in the statement 21 you signed that's what you 22 said? 23 A. Mm-hmm. 24 120 Q. CHAIRMAN: Is that right? 25 A. That's what I believe I signed. But I didn't sign 26 the first page and if you see the second page, you'll 27 see that it's defending my father, which is a total 28 negative to the first page. 29 121 Q. CHAIRMAN: Am I understanding you 28 1 correctly, Mr. McBrearty, 2 what your belief is...(INTERJECTION) 3 A. I'll tell you what I was told by retired members of 4 the Garda force. 5 122 Q. CHAIRMAN: Let me see if I have it 6 right first and correct me 7 if I am wrong. What you think is that that 8 statement, my father wouldn't intimidate witnesses? 9 A. Mm-hmm. 10 123 Q. CHAIRMAN: You signed that and then 11 they turned it over and 12 wrote...(INTERJECTION) 13 A. No, my belief is that the second page with my 14 signature on it, it has been proven to be my 15 signature and I said I would accept it is my 16 signature when it was proven. What I don't accept, 17 Chairman, is, page one of that statement was not 18 written in my presence. What they did was, from 19 information that I have been told by members of the 20 Garda force, this is how these officers plant 21 statements. 22 124 Q. MR. BIRMINGHAM: Sir, it's hard to see how 23 this arises from my 24 question? 25 A. Hold on a second, Chairman, I have to explain this 26 because this is what I have been told. This is where 27 the expert says that the statement was written on two 28 different surfaces. They went away after practicing 29 all day, cramping in the first page of the statement, 29 1 went away after they got my signature on page two, 2 went into another room, wrote out the statement and 3 when I was released out of the Garda station they 4 said right, look boys, we've got a statement. They 5 didn't have any statement from me because I didn't 6 make a confession. That is how they fabricated a 7 statement of confession against me. Because they 8 knew that I was so angry and I was so determined to 9 prove that my family was totally innocent, I was so 10 hurt from the things they were saying about my 11 family, I was defending my family and as an Irish 12 citizen I was doing my duty, telling them that my 13 father didn't intimidate any witnesses. 14 125 Q. CHAIRMAN: All right can I ask you 15 this, Mr. McBrearty, just 16 to clarify it? 17 A. That's what they done and there's evidence to 18 prove...(INTERJECTION) 19 126 Q. CHAIRMAN: Mr. McBrearty, please let 20 me ask the question. You 21 say they were practicing all day you think? 22 A. Sure John McGinley, didn't he gave evidence in here 23 that he signed my name 40 times that day. 24 127 Q. CHAIRMAN: I heard all that evidence. 25 A. The nine points are totally right through the first 26 page. 27 128 Q. CHAIRMAN: Would you ever let me ask 28 you a question? 29 A. Yes, Chairman. 30 1 129 Q. CHAIRMAN: Is it your belief that they 2 were practicing the first 3 page to fit it into the...(INTERJECTION) 4 A. Yes, that's my belief. 5 130 Q. CHAIRMAN: Have you any evidence to 6 support that? Did you see 7 them doing it? 8 A. No, I didn't see them doing it. 9 131 Q. CHAIRMAN: That's just your theory; is 10 that right? 11 A. No, see I didn't sign anything with a confession on 12 it. That's how I know I didn't sign it. 13 132 Q. CHAIRMAN: All right. Okay. 14 A. The bottom line is that that is the theory that John 15 McGinley put to Roisin McConnell four and a half 16 hours earlier to this statement allegedly been taken, 17 nine points right through the first page of the 18 statement. 19 133 Q. CHAIRMAN: Right, very good. 20 Mr. Birmingham, it's only 21 fair to say that all of that was generated by my 22 question to Mr. McBrearty. So he shouldn't be in any 23 way criticised for that? 24 134 Q. MR. BIRMINGHAM: Yes. Just to bring this 25 towards the end. Detective 26 Sergeant Melody had indicated to you earlier that he 27 would remind you of your desire to include a 28 reference to your father and the issue about 29 intimidation of witnesses, and he did remind you and 31 1 you indicated that you wanted to say something on 2 that account? 3 A. Totally untrue and it's pure proof that Mr. Melody 4 fabricates documents because he came down on the 13th 5 and only recently that this Tribunal learned that the 6 memo of interview, the original copy of it, so he 7 says, he left in Letterkenny Garda Station and he 8 went to Dublin from his psychic memory and made a new 9 memo of interview. So the proof of the pudding is 10 there, Mr. Birmingham, that he came down to finish 11 off my father after planting a statement on me. And 12 you see the Letterkenny guards didn't want to have 13 nothing to do with this statement and that's why they 14 sent for these two officers to come down, back down 15 from Dublin, because they didn't want to dirty their 16 hands on this statement because the guards knew that 17 Frank McBrearty Senior would die fighting to clear 18 his family's name. I'll tell you that, my father has 19 done what he said he would do. That's why those two 20 officers were brought back up to Dublin, from Dublin 21 on 13th December because the Donegal Gardaí didn't 22 want their hands dirtied on the confession that they 23 manufactured and planted on me on 4th December 1996. 24 135 Q. CHAIRMAN: Mr. McBrearty, I have heard 25 what you to say there and 26 that's a theory but have you anything to back it up, 27 have you any facts to back it up? 28 A. That is the facts. You only have to see -- why would 29 they have to be called when the detective branch in 32 1 Letterkenny are every bit as capable of questioning 2 my father as they are. 3 136 Q. CHAIRMAN: Yeah I 4 know...(INTERJECTION) 5 A. They're experienced officers along the border, 6 dealing with subversives, interviewing subversives 7 who are very hard to interview and don't tell me that 8 the Donegal Gardaí wouldn't be able to interview my 9 father, that it would take the two Dublin guards. 10 The two Dublin guards were brought down because the 11 Donegal guards didn't want their hands dirtied on 12 this confession because they knew that Frank 13 McBrearty Senior would die fighting to clear his 14 family's name. 15 CHAIRMAN: All right. Thanks 16 Mr. McBrearty. Yes. 17 137 Q. MR. BIRMINGHAM: Just taking up from that, 18 if your father was so 19 anxious to clear his name, why, when he was told in 20 the course of his interviews that you had made a 21 confession, would he not raise that topic with you? 22 A. Because my father knew that I didn't make any 23 confession. My father raised me, he brought me up 24 from I was a little boy. He taught me how to box. 25 138 Q. Is there a father in the...(INTERJECTION) 26 A. Brought me to athletics, brought me to football and 27 my father knows me. 28 139 Q. Is there a father in the country who would behave in 29 that fashion? 33 1 A. Pardon? 2 140 Q. Is there a father in the country who would behave in 3 that fashion? 4 A. What are you accusing my father of? My father has 5 acted with dignity for a long, long time. 6 CHAIRMAN: I'm aware of the point 7 you're making, 8 Mr. Birmingham? 9 A. My father did not tell me about a confession because 10 he didn't believe it. Simple as that. He didn't 11 believe it. 12 141 Q. MR. BIRMINGHAM: Now...(INTERJECTION) 13 A. Because my father knows his son as I know my father 14 and I know my son, he knows that nobody in this 15 country could make me make a statement about 16 something I didn't do. 17 CHAIRMAN: It's all right, we'll pass 18 from that now. 19 142 Q. MR. BIRMINGHAM: Now, having been invited to 20 return as it were to the 21 topic of your father, you then made observations 22 about him not having intimidated any witnesses. As 23 Detective Sergeant Melody wrote down what you were 24 dictating, you inserted into it, as it were, the 25 formula that he first had the words, to my knowledge, 26 that he hadn't intimidated anyone to my knowledge? 27 A. I don't know. All I know is that I defended my 28 father that he didn't intimidate witnesses. 29 143 Q. I am suggesting to you that you were then asked if 34 1 you had anything else to say and you said no. That 2 the statement was then read over to you and you were 3 asked if it was correct. You acknowledged that it 4 was correct by saying aye, it's correct or words to 5 that effect? 6 A. No, totally false. Total lies. 7 144 Q. The statement...(INTERJECTION) 8 A. I did not make any confession or a confession read 9 over to me. Total lies. 10 145 Q. The statement was then passed over to you by 11 Detective Sergeant Melody, who also proffered you his 12 pen and he asked you to sign it. You took it, you 13 turned it over and appeared to read both the first 14 and the second page? 15 A. Total lies. 16 146 Q. And you then signed it? 17 A. No, I did not sign a confession. 18 147 Q. You were asked to initial the first page and also the 19 correction that appears on the second page, which is 20 the insertion of the word not? 21 A. Totally untrue, Mr. Birmingham. 22 148 Q. All right. And that you thought about that request 23 for a moment and then you said, that's it? 24 A. That doesn't make sense because two other officers 25 came into the room and asked me to make another 26 statement. So they say. 27 149 Q. Yes? 28 A. Totally untrue. Mr. Birmingham, all I can tell you 29 is that scenario is a scenario that they have used to 35 1 try and escape from the fact this they planted a 2 statement on me. I am not the first person they have 3 done it to. An expert gave evidence here that he 4 would need ten to 15 statements taken by Mr. Melody 5 to compare those statements to the style of writing 6 that is in the confession. 7 150 Q. Mr. McBrearty, you thought about it for a moment and 8 you then said that's it, that in those circumstances 9 John Melody signed the statement, that signature was 10 witnessed by John Fitzpatrick and it was timed and 11 dated? 12 A. Totally untrue because how does it take an hour and 13 25 minutes, Mr. Birmingham. 14 151 Q. I am suggesting to you...(INTERJECTION) 15 A. To take a one page statement. 16 152 Q. I am suggesting to you formally that throughout your 17 dealings with my clients you were treated in a proper 18 and professional manner? 19 A. Totally untrue. 20 153 Q. I am suggesting to you that your manner -- 21 A. Shown photographs. 22 154 Q. -- your manner of behaviour certainly meant that it 23 was an extremely difficult occasion for them but that 24 they conducted themselves absolutely properly? 25 A. Totally untrue. They abused me physically and 26 mentally. 27 CHAIRMAN: Maybe tell us what was 28 Mr. McBrearty's manner of 29 behaviour at this time. Was he, without giving 36 1 offence to anybody, was he being objectionable and 2 boisterous or otherwise? 3 MR. BIRMINGHAM: Essentially, yes, and 4 throughout the day. 5 A. And to the very minute I was released, protesting my 6 innocence. Vehemently. 7 CHAIRMAN: All right. 8 A. And I still don't understand how it takes an hour and 9 25 minutes to take a page of a statement free 10 flowing. Because that's what an expert has said here 11 in this Tribunal. That that statement was written 12 free flowing which from my understanding of English 13 means that it was written constantly. So it took 14 probably five minutes to write. 15 155 Q. CHAIRMAN: Mr. McBrearty, can you tell 16 me this, this statement 17 that you made in relation to that your father 18 wouldn't intimidate witnesses, what time of the day 19 was that done? 20 A. As I told this Tribunal from my recollection I made 21 two statements, one I was at my work and one I wasn't 22 making no more statements. Just shortly before I was 23 released, and I was not released until 20 minutes to 24 ten. The custody record says 9.18 but it took Martin 25 Leonard I would say roughly ten to 15 minutes to get 26 me out of the station. 27 28 END OF CROSS-EXAMINATION OF MR. FRANK McBREARTY 29 JUNIOR BY MR. BIRMINGHAM 37 1 2 MS. QUINN: Mr. Chairman, I appear for 3 Sergeant Hannigan. 4 CHAIRMAN: Yes. 5 6 7 MR. FRANK McBREARTY JUNIOR WAS THEN CROSS-EXAMINED, 8 AS FOLLOWS, BY MS. QUINN: 9 10 156 Q. MS. QUINN: Mr. McBrearty, for the 11 purposes of this 12 cross-examination I appear only for Sergeant 13 Hannigan, okay, -- 14 A. He's the main man that tried to frame us. 15 157 Q. -- so we're clear on that? 16 A. He's the number one conspirator. He's the person who 17 started the ball rolling at framing our family. 18 158 Q. Mr. McBrearty, I have a small number of questions to 19 ask you and if you could reply to me we'll be through 20 things more quickly. Sergeant Hannigan disputes your 21 assertion that when he was arresting you he looked 22 into your car where your children were and shouted 23 your Daddy is a murderer? 24 A. He's a liar. Because my son -- evidence was given to 25 this Tribunal that my children were, I don't know 26 what member of the guard gave it, who was at the 27 scene that morning, gave evidence to say that my son 28 was shouting about tell them my Daddy is not a 29 murderer. How would my son say that unless that was 38 1 said to me and said to him. 2 159 Q. Mr. McBrearty, if you'll stop I will respond to you. 3 To say that your son said that is not the same as 4 saying that Sergeant Hannigan shouted it into the car 5 your Daddy is a murderer? 6 A. I know -- I've given evidence in this Tribunal. I 7 know -- I heard Sergeant Hannigan. You see -- what 8 is your name, dear? 9 CHAIRMAN: Ms. Quinn. 10 A. Ms. Quinn. You see, I know Sergeant Hannigan and I 11 knew him for six years and never had a problem with 12 him and many a night on the street we saved the 13 guards from getting -- intervened and settled rows 14 along with the guards. And Sergeant Hannigan knew 15 that I was a person if somebody offered me on in a 16 fight that I was a person who could defend myself 17 very capably. And what he did, and he knew, he 18 thought that by provoking me as much as he possibly 19 could that he would get me to assault one of the 20 guards. But what Sergeant Hannigan didn't realise is 21 that I wasn't the person...(INTERJECTION) 22 MS. QUINN: Mr. McBrearty, I think 23 you're going into making a 24 speech now. 25 A. But sure that's what he done. He shouted into the 26 car when he knew -- when he seen that he wasn't 27 getting me provoked in front of my children, do you 28 know your Daddy's a murderer. That's what he done. 29 The school buses, and all the children were getting 39 1 on school buses, it's very funny that the Garda 2 investigations never went around all those mothers 3 and all those children who witnessed me being 4 arrested in front of my children. 5 160 Q. Mr. McBrearty, I require a point of clarification 6 from you. Are you saying that you witnessed Sergeant 7 Hannigan doing this or are you 8 saying...(INTERJECTION) 9 A. I heard Sergeant Hannigan say to my children into the 10 car do you know your Daddy is a murderer. 11 161 Q. Mr. McBrearty, Sergeant Hannigan is supported in his 12 recollection, and this is evidence from day 521 at 13 question 81 by Tina Fowley, Garda Tina Fowley, you 14 recall her being there at your arrest? 15 A. But sure she told lies in this Tribunal as well. 16 162 Q. Mr. McBrearty, what she said at question 81: 17 18 "Q. Did anyone shout into the car in which the children were about their 19 father being a murdering bastard." 20 21 22 And her answer is...(INTERJECTION) 23 A. I can't answer for Tina Fowley. 24 163 Q. Mr. McBrearty, if you would let me continue: 25 26 "A. No that was not shouted into the car. The only thing that was done that 27 morning that I had any, I suppose annoyance or disapproval over, was that 28 the siren was put on in the car and I was just disgusted that it was put on." 29 40 1 2 Now, that is Garda Tina Fowley's evidence on day 521. 3 You yourself on day 515 cited with approval Tina 4 Fowley's evidence before this Tribunal when you said 5 at question, I'm sorry, I will get a number here, 6 it's at page 30 of day 515. These are your words, 7 Mr. McBrearty, and this is about John McGinley: 8 9 "He is a totally discredited witness..." 10 11 12 Sorry, that's about John O'Dowd: 13 14 "The same as John McGinley sat in this box and has admitted now committing 15 perjury. And Tina Fowley witnessed him, along with Brendan Roache, who 16 verified her story." 17 18 19 Now, that is you citing with approval Tina Fowley as 20 being a person who came to this 21 Tribunal...(INTERJECTION) 22 A. I'll give credit where credit is due, Ms. Quinn. 23 164 Q. Let me just finish...(INTERJECTION) 24 A. I'll given credit where credit is due and I'll stand 25 over what I said about Tina Fowley standing up and 26 saying about John McGinley practicing my signature. 27 But as this Tribunal and the Chairman -- or not the 28 Chairman, but the legal team for this Tribunal, they 29 will tell you what I have said about Tina Fowley and 41 1 what she did to my children that morning. And I will 2 not retract it. 3 165 Q. Mr. Chairman, that was the only question I wanted to 4 address in respect of Sergeant Hannigan with 5 Mr. McBrearty? 6 A. The facts are that Tina Fowley along with other 7 officers who were at the scene of my arrest helped 8 abuse my family and she told lies in here in this box 9 about my wife which we will deal with when my wife 10 comes here to give evidence. 11 166 Q. CHAIRMAN: Mr. McBrearty, the point 12 that you made there first, 13 and I just want to confirm this with you, the point 14 you made was that there were your children repeating 15 words tell them my Daddy isn't a murder? 16 A. Mm-hmm. 17 167 Q. CHAIRMAN: And your point is they 18 picked up that from 19 something said to them at the scene? 20 A. They couldn't help but not hear it. 21 168 Q. CHAIRMAN: I have your point; have I? 22 A. The guards were shouting get him handcuffed. 23 169 Q. MS. QUINN: There you are, 24 Mr. McBrearty, they 25 couldn't help but not hear, because you were standing 26 outside the car, Sergeant Hannigan was telling you 27 what he was arresting you for, they were inside the 28 car and they he could hear that. Now, I think it's a 29 very likely scenario...(INTERJECTION) 42 1 A. I seen Sergeant Hannigan, I heard him and seen him 2 bend into the car and say do you know your Daddy's a 3 murderer. I know what I heard and I am not going to 4 retract it because I heard it and he did it 5 specifically to provoke me but you see it didn't 6 work. 7 CHAIRMAN: There's the conflict, 8 Ms. Quinn. 9 MS. QUINN: There's the conflict, 10 Chairman. 11 A. It did not provoke me until I got into the Garda 12 station because I would not show my children in front 13 of the guards how angry I was in the manner in which 14 I was arrested. But I showed it in the Garda 15 station. 16 170 Q. Mr. Chairman, there is the conflict, and my 17 suggestion is...(INTERJECTION) 18 A. I did it in a protesting manner that I was innocent. 19 Which I was entitled to do. 20 CHAIRMAN: Is there something else you 21 wanted to ask? 22 MS. QUINN: No. 23 CHAIRMAN: Very good. 24 A. The bottom line is we have the evidence to prove what 25 Sergeant Hannigan has done trying to frame my family. 26 27 END OF CROSS-EXAMINATION OF MR. FRANK McBREARTY 28 JUNIOR BY MS. QUINN 29 43 1 CHAIRMAN: All right. Mr. Murphy you 2 want to ask questions. 3 MR. T. MURPHY: Mr. McBrearty 4 ...(INTERJECTION) 5 A. Can I go to the toilet. 6 CHAIRMAN: Pardon me? 7 A. I need to go to the toilet. 8 CHAIRMAN: Yes sure, we'll rise for 9 five minutes. 10 11 SHORT ADJOURNMENT 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 44 1 THE TRIBUNAL RESUMED, AS FOLLOWS, AFTER THE SHORT 2 ADJOURNMENT: 3 4 CHAIRMAN: Now, Mr. Murphy. 5 6 MR. FRANK McBREARTY JUNIOR WAS THEN CROSS-EXAMINED, 7 AS FOLLOWS, BY MR. T. MURPHY: 8 9 171 Q. MR. T. MURPHY: Mr. McBrearty, I act for 10 retired Detective Garda 11 John Fitzpatrick and I want to ask you a few 12 questions if you wouldn't mind. I want to deal with 13 the issues as separate issues. The first one I want 14 to deal with is the issue of the allegations of abuse 15 made against my client. Insofar as Mr. Cush has 16 dealt with it, I don't really want to repeat anything 17 he said, so we can shorten the matter. 18 19 Firstly, my client denies that you were abused in any 20 interview in which he was part of. He denies the 21 allegations of slapping the ears, the allegation that 22 he allegedly threatened to throw you out the window, 23 the allegation that he pinned you to a wall and that 24 you responded by putting him over a desk and the 25 allegation of kicking in the shins and all of the 26 verbal abuses that you have outlined. All of that is 27 denied by my client. It didn't happen 28 29 In relation to that, you say that you complained to 45 1 Dr. McColgan about the abuse but he ignored you; is 2 that correct? 3 A. That's correct. 4 172 Q. Okay. Did you speak to him about it since? 5 A. Pardon? 6 173 Q. Did you speak to Dr. McColgan about it since? 7 A. Never spoke to Dr. McColgan. 8 174 Q. Never spoke to him? 9 A. Apart from when he seen me at my second arrest, the 10 guards had we medically examined on my second arrest, 11 on 4th February. 12 175 Q. You didn't raise it with him either? 13 A. Pardon? 14 176 Q. You didn't raise it with him then either? 15 A. Yes, I did. 16 177 Q. Did you challenge him about the...(INTERJECTION) 17 A. No I didn't. I don't think the first arrest was in 18 my mind on my second arrest. 19 178 Q. Okay? 20 A. When I had been people telling me I was going to 21 confess to the death of Richie Barron. I think the 22 first arrest was the last thing on my mind. The only 23 thing that was on my mind on my second arrest was 24 getting home safe. 25 179 Q. Right. Did your solicitor write to him? 26 A. Pardon? 27 180 Q. Did your solicitor write to him? 28 A. Why would he write to him? 29 181 Q. To say that a complaint had been made. Can you tell 46 1 us about it? 2 A. Pardon? 3 182 Q. To ask him whether or not he remembered you making a 4 complaint? 5 A. Well... 6 183 Q. You were suing the State, weren't you? 7 A. Yes, and I did it successfully. 8 184 Q. Fine. In that process did your solicitor write to 9 Dr. McColgan? 10 A. No he didn't because it's not our grounds to -- it's 11 the grounds for the State to prove that I was telling 12 lies, which they didn't do. Not for me to write to 13 their witnesses. He's not my witness. He's a Garda 14 doctor. 15 185 Q. Did you complain to the Medical Council? 16 A. Pardon? What for. 17 186 Q. Did you complain to the Medical Council about him? 18 A. Why would I complain to medical counsel? 19 187 Q. Because he didn't protect you. 20 A. Sure it's not his job to protect me. It's the job of 21 the custody guard to protect me, which didn't happen. 22 188 Q. Did you tell Mr. Sweeney everything about what 23 happened? 24 A. Oh yes, most definitely I told Mr. Sweeney. 25 189 Q. All right? 26 A. On what occasion, the first arrest or second arrest? 27 190 Q. Tell me this...(INTERJECTION) 28 A. I don't understand the question, Mr. Murphy. You've 29 asked me did I tell Mr. Sweeney everything. 47 1 191 Q. That's a fair question? 2 A. Which occasion? 3 192 Q. That's a fair question. You may take it, 4 Mr. McBrearty, I won't be asking you any questions 5 about your second arrest. I have no interest in it, 6 I'm not concerned about it and I won't be asking you 7 any questions about it. So any question that I 8 address to you in relation to any arrest is about 4th 9 December 1996? 10 A. That's fine. 11 193 Q. And I you hope you'll agree with that? 12 A. Whatever suits you. 13 194 Q. All right, fair enough. You have given evidence 14 about a number of assaults, which one of them do you 15 think was the most significant? 16 A. Pardon? 17 195 Q. Which assault impressed you most? 18 A. Assault. All the assaults. 19 196 Q. Was it the threat to throw you out the window? 20 A. Everything done to me that day. Specifically, you're 21 wrong on one aspect about my evidence. I said John 22 Melody kicked me in the shins all day, not John 23 Fitzpatrick. 24 197 Q. Oh well if John Fitzpatrick had observed 25 that...(INTERJECTION) 26 A. How could he observe it when Melody was sitting 27 beside me here and John Fitzpatrick was the other 28 side. 29 198 Q. If John Fitzpatrick had been aware that you were 48 1 interfered with physically, he would have had an 2 obligation to report it and to stop it and I'm saying 3 insofar as that allegation is made...(INTERJECTION) 4 A. Why didn't he do it when I complained to Melody about 5 kicking me, if you don't stop kicking me in the shins 6 I'm getting up and leaving this room, which I tried 7 to do on several occasions. 8 199 Q. My point entirely is that it didn't happen? 9 A. It did happen. 10 200 Q. And that's why he didn't do it? 11 A. Well it did happen. I'm sorry to not to give you the 12 answer that you like but it did happen. 13 201 Q. To get back to my question...(INTERJECTION) 14 A. I mean why would Garda Martin Leonard give me tablets 15 if I wasn't thrown off my chair, because I complained 16 about being assaulted. 17 202 Q. To get back to my question, which do you think was 18 the most serious, the pinning up against the wall, 19 the threat to throw out the window, the kicking in 20 the shins, the slapping of the ears, which do you 21 think was the most serious? 22 A. Well sitting here today I would say the most serious 23 aspect for me now is the fact that the slapping on 24 the ear has caused me to have a nervous problem. I 25 have had numerous ear infections and I have actually 26 perforated my own eardrums picking my ears with a 27 nervous condition that has been attributed to the 28 fact that I was slapped in the ears in the Garda 29 station on two different occasions, on 4th December 49 1 and 4th February. 2 203 Q. On the day in question, which is the one? On the 3 day, on 4th December what was the one that caused you 4 most concern? 5 A. None of them caused me any concern. The concern that 6 I had was that I was being assaulted verbally and 7 physically. 8 204 Q. Well if you told Mr....(INTERJECTION) 9 A. I'm tell you what the worst for me was, after a 10 certain length of time having photographs shoved in 11 my face, where I threw the photographs across the 12 floor. I would probably say at the start it didn't 13 bother me but later on, after Fitzpatrick trying to 14 stick my head into the photographs, I would say that 15 was probably the worst because I could take the 16 physical abuse. 17 205 Q. Isn't that interesting now because when you gave the 18 interview to Mr. Flynn, which was in 1997 at some 19 time, you said to him in that interview, the 20 photographs didn't bother me at all? 21 A. No. 22 206 Q. Never bothered me? 23 A. No they don't bother me, to this day they don't 24 bother me because I have nothing to hide. 25 207 Q. All right? 26 A. What was bothering me was my head was getting stuck 27 into them, look what you did you murdering bastard. 28 Look what you did. Look at the mark. Look at the Y 29 laceration on top of the Richie Barron's head. Look 50 1 at his index finger. Look, he tried to save himself 2 and they were demonstrating look, he tried to save 3 himself when you hit him over the head with an iron 4 bar. And I was vehemently denying this. 5 208 Q. Right? 6 A. So I don't know, I mean if you were being accused of 7 hitting somebody over the head and being shown 8 postmortem photographs, Mr. Murphy, would you not be 9 upset? 10 209 Q. In any event...(INTERJECTION) 11 A. Because I've heard the explanation that Mr. Cush gave 12 here yesterday about the -- the denial about the 13 photographs. The bottom line is that I am the only 14 person in this Tribunal who has described in great 15 detail the photographs. 16 210 Q. That's incorrect? 17 A. That is not incorrect. 18 211 Q. It is incorrect? 19 A. Not the way I described them. 20 212 Q. Mrs. McConnell described them? 21 A. No, she wasn't able to describe them in the manner I 22 described them. I described them in detail, exactly 23 what was in the photographs. 24 CHAIRMAN: Look let's get back to the 25 question. The answer is, 26 now...(INTERJECTION) 27 A. Chairman, you have to agree with that point, 28 Chairman, that I have described those photographs in 29 great detail. 51 1 213 Q. CHAIRMAN: I understand the point you 2 make. Now, so far as the 3 worst incident is concerned, it now transpires that 4 your ears are giving you trouble so in that respect 5 they were the worst, but apart from the physical 6 assault having the photographs shoved in your face 7 was the worst you say? 8 A. No, my head being shoved down into the photographs 9 probably was. 10 214 Q. CHAIRMAN: All right? 11 A. There was a lot of incidents that were bad. 12 CHAIRMAN: What's the next question. 13 A. The abusing of my family and telling me that I didn't 14 care about my children and telling me that I have 15 used my -- my father abused me when I was a wee 16 fella, all these horrible things. I couldn't even 17 tell you what was the worst because as far as I'm 18 concerned the whole thing -- one's as bad as the 19 other. 20 215 Q. MR. T. MURPHY: The threat to throw you out 21 the window, the pinning up 22 against the wall? 23 A. It would be ludicrous for me to make up that 24 allegation, when I'm describing putting him over the 25 table, basically he could have me done for assault. 26 So why would I put myself in to that position, 27 because I have told the truth about what happened. 28 He pinned me up against the wall because I was 29 leaving the room because I wasn't going to have my 52 1 head shoved into photographs any longer. I says, you 2 think you're a tough guy and I threw him then over 3 the table. I have read his statement about his 4 medical condition but I don't see his medical 5 condition being brought in here. 6 216 Q. As you brought that up point up, you told us, with 7 great care, that you spent all of the day trying to 8 control yourself so as that you would not get into an 9 altercation with any of the guards so as you could 10 not be accused of assault and arrested for assault. 11 So which is it now? You're either defending yourself 12 or you're controlling yourself? 13 A. No, I did control myself, because I realised that it 14 was getting to a situation where me and him was 15 probably going to get into fisticuffs. 16 217 Q. So putting him across the desk then...(INTERJECTION) 17 A. No, I didn't put him across the desk, I threw him 18 across the desk. 19 218 Q. Okay well that's not an assault as far as you're 20 concerned? 21 A. I have admitted I did it, I threw him across the 22 desk, but I didn't assault him, it was self defence. 23 Do you understand, Mr. Murphy, what self defence is? 24 He pinned me against the wall when I was trying to 25 leave the room. 26 219 Q. The threat to throw you out the window, the pinning 27 up against the wall, the kicking in the shins, none 28 of those allegations were made to Mr. Sweeney and 29 they're not included in your Statement of Claim in 53 1 the High Court proceedings? 2 A. Would you care to bet on that? 3 220 Q. I would. 4 A. Do you want to he see the note of particulars. 5 221 Q. I have read what has been produced by the Tribunal? 6 A. Do you want to see the note for particulars? I'll 7 put a bet on now, Mr. Murphy, any amount of money you 8 want to bet because all my allegations are contained 9 in my High Court proceedings, every single one of 10 them. You'll have to go over to David Walley's 11 office and get the note to particulars. 12 222 Q. I'm talking about what the Tribunal have produced, 13 they've produced a Statement of 14 Claim...(INTERJECTION) 15 A. As you know, Mr. Murphy, every single thing doesn't 16 be put into a Statement of Claim at the start because 17 you have to keep certain things within your armoury 18 for under cross-examination. 19 223 Q. I will let the Chairman deal with that issue. He's a 20 much better lawyer than me? 21 A. My High Court case has got nothing whatsoever to do 22 with you, Mr. Murphy. 23 CHAIRMAN: What part do you say is not 24 in the notice for 25 particulars or particulars of injury. 26 A. He doesn't have knew notice for particulars, the 27 State have them. 28 CHAIRMAN: Mr. Murphy, I'm asking you. 29 MR. T. MURPHY: 54 1 2 "Whilst in custody the Defendant its servants or agents, the Plaintiff was 3 assaulted, threatened and intimidated by the Defendants their servants or 4 agents and in particular by Gardaí Melody, Cafferkey, Keating, 5 Fitzpatrick, McGinley among others for the purported purpose of obtaining 6 confessions for actions for which the Plaintiff had no involvement, liability 7 or knowledge. The said assaults and intimidation caused the Plaintiff 8 severe upset, distress and fear and furthermore, caused the Plaintiff 9 severe shock and grieve. The Plaintiff was inter alia repeatedly nudged and 10 poked in his ribs, he was pushed off his chair onto the floor, slapped in 11 the face, he was given three pain killing tablets as a result of 12 consequent pain in his back, he was continuously insulted and told he was a 13 wife beater, adulterer and murderer." 14 15 16 And that is what is said about 4th December. 17 224 Q. Well? 18 A. There's a possibility they were writing them in the 19 room. 20 225 Q. I you suggest to you that you were told that notes 21 were being taken and you were asked to sign them? 22 A. That's untrue. 23 226 Q. You also said, at day 513, it's question 141, and you 24 say: 25 26 "The bottom line is these notes are fabricated to stand up the confession." 27 28 29 So you are saying the notes are concocted and 55 1 fabricated? 2 A. Oh I definitely believe that. 3 227 Q. Okay? 4 A. Because there's things in those interview notes that 5 they have written that I didn't say. 6 228 Q. All right. I understood you to say and explain to 7 the Chairman that one of the reasons you were saying 8 the interview notes were concocted is, was the use of 9 language, that some of the language that was used in 10 the notes you'd never use; is that right? 11 A. Pardon, I didn't say that. I said they were slang 12 words. 13 229 Q. Fine. Well sorry, we don't disagree on the wording. 14 I'll take your word so that there are certain words 15 in there, slang words that you'd never used? 16 A. Well I'm a Donegal man, not a Dublin man. 17 230 Q. All right. You said, in answer to question 328 on 18 day 513, a reference was read out to you in which the 19 word "lads" was used and you said, that's Dublin 20 slang, I'd never use the word lads? 21 A. I know where you're coming from and Mr. McDermott 22 will verify what I told him after I said that, that I 23 had been thinking about this word "lads" and I 24 accidentally said it. I know what you're getting at, 25 Mr. Murphy. Mr. McDermott can verify that's what I 26 told him. 27 231 Q. Sorry...(INTERJECTION) 28 A. The reason I said it is because my brain was going 29 around after four days of cross-examination. That's 56 1 not a word, Mr. Murphy. You can say whatever you 2 like, that's not a word that I would use. 3 232 Q. Can I deal...(INTERJECTION) 4 A. After sitting in a box for four days and there was a 5 break directly after it I think, I told Mr. McDermott 6 or Mr. Barr, I'm not sure which one it was, I said 7 the word lads, they'll probably pick up on it, that 8 that's a word that I use, I said the reason I used it 9 is because I was thinking about a whole pile of 10 different things in my brain and that's why I used 11 it. 12 233 Q. Well...(INTERJECTION) 13 A. It's the only time I ever used it in this Tribunal. 14 234 Q. Okay. You said that that happened after four days of 15 evidence and you said that it happened immediately 16 prior to a break and immediately when that break 17 occurred you spoke to Mr. Barr or Mr. McDermott, you 18 don't know which, and said, I made a mistake. Is 19 that what you are saying? 20 A. No, what I said was I used the word lad. 21 235 Q. Fine? 22 A. Because I was thinking about the word lad. 23 236 Q. Okay, you used the word lad? 24 A. It's not a word I would use. 25 237 Q. You used the word lad, right. Now, why didn't you 26 tell the Chairman, listen, Chairman, I made a 27 mistake? 28 A. Well I told the legal team for the Tribunal. 29 238 Q. The Chairman deals with -- and he will forgive me for 57 1 saying this I hope? 2 A. Sure Mr. Murphy, I knew you were going to bring this 3 up. 4 239 Q. What's in that? 5 A. I don't care what's in it. Mr. Murphy, it's not a 6 word that I use. 7 240 Q. All right? 8 A. You've never heard me use it apart from that day. 9 241 Q. Well I heard...(INTERJECTION) 10 A. I had been cross-examined on it and that's why I was 11 thinking about it. 12 242 Q. Well Mr. McBrearty, first of all it wasn't said after 13 four days of you being in the box, it was said on the 14 first day you went into the box, it was said on 15 Monday, 23rd October 2006, the first day we sat in 16 Donegal. And you took no opportunity to correct the 17 record if you did think about it and if you did speak 18 to Tribunal Counsel in relation to it when you went 19 back...(INTERJECTION) 20 A. You will need to ask Mr. McDermott and Mr. Barr did I 21 say that to them. 22 243 Q. Well Mr. McBrearty, you had Monday, Tuesday, 23 Wednesday and I think Thursday to correct the record 24 and you didn't? 25 A. How did you expect me -- that's not the only thing 26 that was in my brain. I was being cross-examined for 27 four days. 28 244 Q. In any event, let's move on? 29 A. About a number of different things, back and forward 58 1 back and forward. 2 245 Q. Okay? 3 A. So you can say whatever you like, Mr. Murphy, I don't 4 use the word lads. 5 246 Q. At question 414 you said you would not use the word 6 "shite", that's Dublin slang. And lo and behold, 7 Mr. McBrearty, at question 458 you say: 8 9 "I wouldn't have used the words, the whole thing is shite." 10 11 12 A. I don't even know what you are talking about. 13 247 Q. I'm talking about the use of language. You're saying 14 you say one thing is Dublin slang and within a number 15 of questions -- a number of questions later you use 16 the very word you complain about. The theory about 17 the notes being fabricated and use of language is 18 rubbish? 19 A. You're the one that is rubbish, not me. 20 248 Q. Okay. 21 A. I mean if you are going to bring up -- you better 22 bring up all the notes and I'll point out every 23 single thing that I say. 24 249 Q. Because you repeated it the next day, that word, and 25 you said: 26 27 "this is the shite they were at." 28 29 59 1 Again you mention that word. 2 A. It's not a word I would have used at that time. 3 250 Q. You say that the memos of interview were fabricated 4 and the Chairman then asked you a question as to 5 whether or not the topics that were covered in the 6 interview notes were actually covered. He asks that 7 question, he goes on to say: 8 9 "Well did they speak about this thing, forget about what they wrote, was this 10 topic covered?" 11 12 13 And you agreed with him the topic was covered. 14 A. I don't even know what you are talking about, can you 15 explain to me what topic you're talking about. 16 251 Q. You can pick any topic you want. I don't want to go 17 through all of the interview notes? 18 A. But sure I mean, you'll have to go through them all 19 now because you've brought up this. I'll show you 20 now every single thing that I didn't say. 21 252 Q. Bear with me a second to see if I can put this in 22 context? 23 CHAIRMAN: No, Mr. Murphy, what's the 24 question. You say that I 25 asked the question, you don't agree with the notes 26 but were these topics covered and you say that 27 Mr. McBrearty said, yes they were. 28 MR. T. MURPHY: The question is 470, right, 29 and it's on day 513 and 60 1 it's on page 115. The Chairman interrupts and he 2 says -- sorry, the Chairman is asking you questions 3 and he: 4 5 "Oh sorry, can I just finish the question, maybe you don't remember that 6 well and I understand that? 7 A. No, that's what I remember. The bottom line is the way they were 8 written down, those topics were discussed but they weren't discussed in 9 that manner." 10 11 12 13 So the matters that were being written about in the 14 notes were discussed but you say you dispute how they 15 were written. Is that your position? 16 A. You'll have to go through the notes, I'll have to 17 show you what I didn't say and what they were saying. 18 253 Q. Well according to you, Mr. McBrearty, you didn't say 19 any of it? 20 A. Pardon? 21 254 Q. According to you, you didn't say anything that's in 22 the notes, you said the notes were fabricated? 23 A. What I'm saying to you is that no notes were written, 24 no notes were -- there was no notes put in front of 25 me and nobody asked me to verify if notes were 26 correct or if they were wrong, or was I asked to sign 27 any interview notes in my presence. That's my 28 evidence. 29 255 Q. So no interview notes were taken? 61 1 A. I didn't say that, what I said to you, Mr. Murphy, no 2 notes were shown to me or was I asked if any notes 3 were correct or if they were wrong during my 4 interrogation or was I asked, I was never asked at 5 any stage to sign any interview notes. That's my 6 evidence. 7 256 Q. So they're all fabricated? 8 A. Well I don't know, that's a question for them, not 9 for me. There is no interview notes -- I wasn't 10 asked to verify any interview notes. 11 257 Q. Well I suggest to you that...(INTERJECTION) 12 A. I know what you're going to suggest, you're going to 13 suggest that they were. 14 258 Q. Absolutely? 15 A. Let's go on to the next question. 16 259 Q. In relation to the statement, you've heard 17 Mr. Birmingham describe how the statement was taken 18 and I, or my client instructs me that he agrees that 19 that's how the statement was taken? 20 A. That's totally untrue because I didn't make a 21 confession. 22 260 Q. All right. A confession to what? 23 A. Pardon? 24 261 Q. You didn't make a confession to what? 25 A. I don't understand you. 26 262 Q. What did you not confess to? 27 A. I didn't confess to the death of Richie Barron. 28 263 Q. The statement doesn't say that or anything near it? 29 A. The statement indicates that I assaulted Richie 62 1 Barron. 2 264 Q. Yeah? 3 A. Simple as that. 4 265 Q. Absolutely? 5 A. What are you getting at, Mr. Murphy? Accuse me 6 whatever you are going to accuse me of, get on with 7 it, because I am well able to take you on. Accuse 8 me. Accuse me of murder or accuse me of assault, do 9 whatever you like because I didn't assault anybody. 10 266 Q. What I am saying, Mr. McBrearty...(INTERJECTION) 11 A. And I didn't admit to assaulting anybody. 12 267 Q. Well what I am saying to you is, 13 Mr. McBrearty...(INTERJECTION) 14 A. You can say whatever you like, Mr. Murphy, I can tell 15 you now that I didn't make a confession. You're 16 calling it something different now, it's been called 17 a confession now for past ten years. 18 CHAIRMAN: Let's hear what 19 Mr. Murphy's question is. 20 268 Q. MR. T. MURPHY: You have repeatedly said 21 that you never confessed to 22 the murder of Richard Barron? 23 A. So what does the statement -- that's saying I 24 murdered Richie Barron. 25 269 Q. It doesn't? 26 A. Sure I mean we're in a realistic world here, it says 27 that I assaulted Richie Barron and Richie Barron 28 died. What's that? Is that not murder? 29 270 Q. It says you assaulted Richie Barron? 63 1 A. Aye, is that not murder. In ordinary layman's terms 2 is that not murder? 3 271 Q. I wouldn't agree with it. 4 A. How wouldn't it be? If you hit somebody over the 5 head with a weapon that they describe in the 6 confession, is that not murder? 7 272 Q. How do you say...(INTERJECTION) 8 A. Is that not what the chief superintendent and Joe 9 Shelly and them said, we want him charged with 10 murder, not manslaughter. 11 273 Q. How do you say the statement came into being? 12 A. There was no statement so I don't know how it came to 13 be. 14 274 Q. All right? 15 A. Because I didn't make a confession. 16 275 Q. How do you say it happened? 17 A. It didn't happen. 18 276 Q. All right. Here's the second page, it's the back of 19 that page? 20 A. Can I have the original copy of the confession 21 please? I'll soon show you how it happened. 22 CHAIRMAN: While we're getting that, 23 Mr. Murphy, what is the 24 question? You're question is, how do you, 25 Mr. McBrearty, say the statement happened? What does 26 that mean? 27 MR. T. MURPHY: Sorry, can I have a 28 preliminary question for 29 that. 64 1 277 Q. You agree that you signed certain things in the Garda 2 station, is that right, you agree you signed 3 something? 4 A. I agree, aye, totally. 5 278 Q. You agree you signed something; is that right? 6 A. I agree I signed, I believe, five different 7 documents. 8 279 Q. Okay. One of them you say was a statement about what 9 you did on the night in relation to your work, when 10 you went in and all that? 11 A. That's true, that's definitely true. 12 280 Q. Okay. The other one then is you signed for McGrath 13 and...(INTERJECTION) 14 A. Mr. Durack, I didn't sign the questionnaire. I don't 15 know what you are whispering about there because 16 that's what you said. 17 281 Q. MR. T. MURPHY: Sorry, my understanding 18 also is that you signed -- 19 when you were dealing with Mr. Cush yesterday you 20 signed another document which was witnessed by 21 McGrath and O'Grady? 22 A. I said I didn't know if it was witnessed by McGrath 23 and O'Grady. 24 282 Q. Well you said you said something like what was in 25 that document? 26 A. Yes and I've said that all along to the Tribunal and 27 to my lawyers and to the Irish Government and to Jim 28 Higgins and to Michael McDowell and to John 29 O'Donoghue. 65 1 283 Q. Now, there have been handwriting experts which have 2 given evidence to the Chairman, who say - you have 3 this statement there in front of you, turn it over 4 onto the back - that that signature there, Frank 5 McBrearty Junior, is yours? 6 A. Yeah. 7 284 Q. Mr. Lynch put it beyond any doubt, Mr. Nash said that 8 he was confident it was yours but wouldn't put a 9 percentage on it. Mr. Kim Harry Hughes said that it 10 was yours, as did Mr. Radley, and Mr. Radley had no 11 doubt whatsoever? 12 A. Sure we know who Mr. Radley is. He's a man that was 13 sacked by the Home Office, who was involved in the 14 Birmingham Six case. 15 285 Q. In any event, they have said that it's yours. Is it 16 your signature? 17 A. Well the experts say that it's my signature. 18 286 Q. Is it, Mr. McBrearty, it's your signature? 19 A. The experts say it's my signature. 20 287 Q. What do you say? 21 A. If they say it's my signature, it's my signature. 22 288 Q. It's your signature. So you accept you signed it? 23 A. No I don't accept that I signed a confession. 24 289 Q. Sorry? 25 A. You said you wanted to bring me through this, so I'm 26 waiting for you to start. You wanted me to explain. 27 290 Q. Is that your signature? 28 A. I don't know, that's the truth. 29 291 Q. Mr. McBrearty, you said on one occasion previously 66 1 giving evidence...(INTERJECTION) 2 A. I said the experts have said it's my signature, I 3 said I will accept that, but I still don't know how 4 my signature got on a confession. 5 292 Q. So we can take it it's yours? 6 A. Page two, you're forgetting -- you're carefully 7 manipulating the fact that what is signed does not 8 incriminate me and what does incriminate me is 9 signed. And I mean there's writing experts who gave 10 evidence here but there's not documents experts who 11 have given evidence, and you'll see the statement 12 that it is totally on the left-hand side neatly 13 written like a ruler and you will see all the bits, 14 the spaces where words could be put in at the end of 15 each sentence of that confession you'll see that such 16 words like "I", there was room for "I" beside 96, so 17 on and so on right down through the statement. Which 18 proves if a document expert was examining this, would 19 prove that that statement had been written, practiced 20 on different occasions in the Garda station that day 21 in Donegal. 22 293 Q. Wonderful? 23 A. And finally when they knew that I was defending my 24 father vehemently and they had my signature on a 25 piece of paper where I had defended my father they 26 went into another room and took and copied and wrote 27 out free flowing writing of what they had been 28 practicing all day. Because you will see it there, 29 Chairman, you will see the spaces where words could 67 1 have been put in and the reason they did it was in 2 order to have the whole page full to the very bottom. 3 294 Q. So that's your theory? 4 A. There's no doubt about it. 5 295 Q. Right. You have hand...(INTERJECTION) 6 A. I mean I have asked, I am actually working at the 7 minute on a document expert who specialises in this 8 field, not handwriting expert. 9 296 Q. But sure you've had ten years to do that and you're 10 protesting your innocence for ten years. Where has 11 he been this document expert, why isn't he here? 12 A. I thought when the Tribunal was established that they 13 would appoint these experts but all that has been 14 done is a handwriting expert has been appointed to 15 verify if that's my signature, the bottom line is my 16 signature is not on the first page of that 17 confession, or a proper caution. I mean, Mr. Murphy, 18 does the guards not follow the rules when they're 19 taking statements off people? 20 297 Q. It's your reputation...(INTERJECTION) 21 A. Because that's not taken -- that piece of paper is 22 not written on a proper statement paper, it is not 23 properly cautioned, it's not initialed and even the 24 nots that's on the other side that was added in is 25 not initialed and why would I sign a confession and 26 not sign a piece of -- a word put in "not". Why 27 would I not put my initial to it? 28 298 Q. Mr. McBrearty...(INTERJECTION) 29 A. Hold on a second, you brought up the scenario I am 68 1 going to finish it. When they left the room after 2 getting my signature on the second page they said to 3 the other two boys right we've got him now, you'll 4 have to go in and try and get him to make another 5 statement, so this statement here that we've 6 practiced all day stands up that he made a 7 confession, you'll have to go in and get a proper 8 caution on another statement. 9 299 Q. Did you hear that? 10 A. That's what they done. 11 300 Q. Did you hear that? 12 A. Pardon? 13 301 Q. Did you hear that? 14 A. No, that's what they done. 15 302 Q. Did you hear that? 16 A. No, that's what they did. 17 303 Q. Did you hear it? 18 A. That's my belief what they did. 19 304 Q. Sorry, did you hear it? 20 A. I'm telling you that's my belief what they did. 21 305 Q. I asked you did you hear it? 22 A. That is my belief. 23 306 Q. It's a yes or no answer? 24 A. You see the thing about it, I have been denied in 25 this Tribunal to bring in statements that have been 26 fabricated by Melody, Fitzpatrick, McGrath and 27 O'Grady over the past 20 years in their career. 28 307 Q. Give me one case? 29 A. I have been denied. 69 1 308 Q. Give me one case? Name it? 2 A. I'll give you one case now. 3 309 Q. Name me one? 4 A. The Josie Dwyer case is number one. 5 310 Q. Where is your evidence? 6 A. That is a more recent one. 7 311 Q. Where is your evidence? 8 A. Well, I have is been denied those documents. 9 312 Q. Sorry, where is your evidence? 10 A. An expert Kim Harry Hughes gave evidence in this 11 Tribunal that he would need ten to 15 statements 12 written by John Melody to show if his writing 13 compares to the writing on this confession. The 14 other thing is, if that is free flowing written 15 without the pen being taken off the paper how did it 16 take an hour and 25 minutes, Mr. Murphy, for a 17 confession to be taken off of me. 18 313 Q. Well I have been at this for a half hour now, 19 Mr. McBrearty, and we've got very little distance? 20 A. What's that got to do with it. This is a statement 21 that has been written constantly and it has been 22 crammed in deliberately. 23 314 Q. Where is your evidence for that? 24 A. There it is. There it is in the statement. The 25 statement is not properly cautioned, the writing on 26 it is crammed in in order that there's no space at 27 the end of it and very conveniently I'm defending my 28 family and defending my father that he didn't 29 intimidate witnesses and my signature is on a piece 70 1 of paper where I'm defending my family. And the nine 2 points, we can't get away from the nine points, that 3 John McGinley, which are only through the front page 4 of this confession, the nine points are not in the 5 back page of the confession where I am defending my 6 family. 7 315 Q. The first time we heard of the theory about cramming 8 in was after Mr. Radley's evidence? 9 A. Mr. Radley's evidence? 10 316 Q. Yes? 11 A. It's what Kim Harry Hughes said, I haven't even -- I 12 haven't even properly read Dr. Radley's evidence 13 because of the fact of who he is. 14 317 Q. Is that a fact? 15 A. I've read Kim Harry Hughes what he said, that he 16 would not be able to tell unless he seen other 17 samples of statements taken by John Melody. But the 18 most important fact that you're getting away from 19 Mr. Murphy is nobody has shown what an actual murder 20 confession or assault confession -- they have not put 21 here in evidence from other police services around 22 the world from the information that I am being told 23 that if you admitted to an assault or admitted to a 24 serious crime such as murder there would be probably 25 30 pages and the normal procedure is that you would 26 be taken out, you would show them where the murder 27 weapon was and all this. They didn't do that because 28 they didn't get a confession from me. What they 29 decided to do was we'll plant one on him because the 71 1 Donegal Gardaí from the information that I've been 2 given were slagging him, you've got nothing out of 3 Frank McBrearty, you've got nothing out of him. 4 318 Q. Mr. McBrearty...(INTERJECTION) 5 A. And the evidence to this Tribunal, Mr. Murphy, from 6 guards, including Superintendent John Fitzgerald, he 7 didn't even believe that the statement was true and 8 Detective Garda Frain says that he didn't even know 9 anything about a statement and he says Frank 10 McBrearty left the Garda station in the manner he 11 went into it and the other thing the evidence was 12 given here Mr. Murphy to the fact that from experts 13 from across the water, Mr. Gudjonsson and a lady from 14 New Zealand, have given evidence that usually people 15 who admit to a crime such as this show remorse and 16 their attitude changes. My attitude did not change 17 from the time I got into the station until the time I 18 was released. So, you're all right in here, 19 Mr. Murphy, I've nobody to cross-examine your 20 witnesses but let me tell you I swear, I swear to the 21 day I die my lawyers are going to deal with the four 22 boys from Dublin in a different forum. 23 319 Q. All right. But, Mr. McBrearty, if you brought your 24 witnesses in here that you say can prove all of these 25 things I would love to cross-examine them? 26 A. I'm working on a witness, I'm working on somebody in 27 Great Britain, a lady, at the minute. She has said 28 she is willing to come and give evidence here and 29 she's willing to examine documents, but haven't told 72 1 the Tribunal because I thought the Tribunal after 2 discovering that it's my signature that they would 3 get an expert to prove how that document came about. 4 Because you can see that somebody wrote that 5 statement from a statement that had been practiced 6 during the day and we've heard evidence here that 7 John McGinley was practicing my signature 30 to 40 8 times that day. 9 320 Q. CHAIRMAN: Could I interrupt you 10 there, Mr. McBrearty, 11 because I'm interested in that point you just made. 12 What you said was you can see from the statement that 13 it is written from somebody who had been practicing 14 all day? 15 A. Yes. 16 321 Q. CHAIRMAN: Could you elaborate on 17 that? 18 A. Well you go through the statement -- can I take this 19 A1 off it? 20 322 Q. CHAIRMAN: Sorry? 21 A. Can I take this A1 -- because I don't want to touch 22 the statement. 23 323 Q. CHAIRMAN: I wouldn't do that if I 24 were you. 25 A. You can see the end of sentences where words such 26 as -- every sentence you will see, some of the 27 sentences there's large spaces at the end of them, 28 where they could have put in the words they wanted to 29 put in. 73 1 324 Q. CHAIRMAN: Right? 2 A. They went on to another line because they wanted to 3 make sure that there was no room at the bottom so 4 they could say they could turn over the statement. 5 325 Q. CHAIRMAN: So you say they spaced it 6 out? 7 A. Aye, they spaced it out. 8 326 Q. CHAIRMAN: By leaving large blanks at 9 the end of the line? 10 A. Yes, and the fact it's so neatly down the whole way 11 down the line you can see that it was deliberately -- 12 I mean, how does somebody write that right down 13 unless they were practicing all day. 14 327 Q. CHAIRMAN: Turn it around till I have 15 a look. Yeah, I see what 16 you mean. 17 328 Q. MR. T. MURPHY: You see, that's the 18 question, Mr. McBrearty. 19 You see, there was very limited time...(INTERJECTION) 20 A. You're saying that I was going off the head and I was 21 doing this, how could Melody write the statement so 22 neatly. 23 329 Q. CHAIRMAN: Let 24 Mr. Murphy...(INTERJECTION) 25 A. No, but how could Melody write a statement so neatly 26 if I was doing all the somersaults and all this that 27 they were saying I was doing. 28 330 Q. CHAIRMAN: Mr. McBrearty, let 29 Mr. Murphy ask the 74 1 question? 2 A. The bottom is line. 3 331 Q. CHAIRMAN: Please let 4 Mr. Murphy...(INTERJECTION) 5 A. I have asked for evidence to be introduced from 6 investigations that these officers were involved in 7 in order to defend my name properly and I was denied 8 it. 9 332 Q. CHAIRMAN: Now...(INTERJECTION) 10 A. The facts are they planted that statement on me and I 11 don't have any protection here in this Tribunal but, 12 Mr. Murphy, it's not over when the Tribunal is over 13 and you know that. 14 333 Q. CHAIRMAN: Now, would you ever let 15 Mr. Murphy ask the next 16 question? 17 A. Excuse me, Chairman, but I need to go to the toilet 18 again. 19 CHAIRMAN: All right. 20 21 22 SHORT ADJOURNMENT 23 24 25 26 27 28 29 75 1 THE TRIBUNAL RESUMED, AS FOLLOWS, AFTER THE SHORT 2 ADJOURNMENT: 3 4 334 Q. MR. T. MURPHY: Mr. McBrearty, you said 5 that Melody and Fitzpatrick 6 manufactured a memo of interview with your father, 7 that they put in a memo of interview that they told 8 your father about a statement and you said that was 9 untrue, that they told your father about a statement? 10 A. Pardon? 11 335 Q. In a memo of interview taken by Melody and 12 Fitzpatrick with your father, they say to your 13 father, Frank Junior made a statement? 14 A. Well you see, Mr. Murphy, that's what I believed 15 because my father never told me at any stage during 16 that period that he had been told that I had made a 17 confession. 18 336 Q. But in actual fact they didn't fabricate that, they 19 did tell your father, didn't they? 20 A. Pardon? 21 337 Q. They did not fabricate that? 22 A. Can you tell me how two people were in a room for two 23 minutes, right, with my father and ended up writing a 24 memo of interview that lasted for over -- I think 25 over 25 minutes. 26 338 Q. Let's deal with that...(INTERJECTION) 27 A. No, that's the point. How can you write something 28 that has been written over a 25-minute period, that's 29 what is being recorded. 76 1 339 Q. No, Mr. McBrearty? 2 A. Hold on a second, you've introduced a memo of 3 interview, and the Rules of Evidence, Mr. Murphy, has 4 to be adhered to because I'll tell you why: Melody 5 has made a new statement to the Tribunal stating that 6 the original copy of that memo was left in 7 Letterkenny Garda Station and subsequently had been 8 lost, has subsequently been lost, Mr. Murphy. So it 9 can't be relied on, it's hearsay evidence by 10 Mr. Melody. That's what it is. 11 340 Q. Forget the memo so? 12 A. Because there's no memo. 13 341 Q. Forget it, forget it so? 14 A. There is no memo. 15 342 Q. Forget it? 16 A. Because it was fabricated. The one he invented in 17 Dublin has been a fabrication to stand up -- you see 18 the thing about it, Mr. Murphy, it's a the fact that 19 you can't get away from, two officers from the 20 serious crime squad came back down to finish off me 21 and my father, that's what they done because the 22 Donegal guards didn't want their hands dirtied on the 23 false confession. You see the DPP was told about 24 this confession in September 1997, Mr. Niall Lombard 25 and Mr. McLoughlin, who was a Chief State Solicitor 26 at the time, were told about this so-called 27 confession and the DPP didn't do nothing about it. 28 343 Q. Okay. Now, let's forget the memo for a moment, 29 right, and just deal with the small bit of 77 1 information which my client says was given to your 2 father...(INTERJECTION) 3 A. No, if you are going to introduce -- to refresh my 4 memory, you will have to read out the first 5 statement, the first memo. 6 344 Q. CHAIRMAN: Please listen to the 7 question. 8 A. You see, Chairman, I have to see the memo. 9 CHAIRMAN: I don't know what the 10 question is first. What is 11 the question? 12 345 Q. MR. T. MURPHY: The question is, that your 13 father was told in that 14 interview that you had made a statement. He told 15 Mr. Sweeney that he was told that? 16 CHAIRMAN: Yes. 17 346 Q. MR. T. MURPHY: Right. So 18 now...(INTERJECTION) 19 A. He didn't tell me, I can't speak for my father. 20 347 Q. Your father, I think, and I will be corrected if I am 21 wrong, accepted that he told Mr. Sweeney about the 22 making of a statement? 23 CHAIRMAN: What is the question then? 24 348 Q. MR. T. MURPHY: What I am suggesting as a 25 result of that is, they 26 didn't fabricate anything, that was true and when it 27 was tested independently it was found to be true? 28 A. They fabricated a memo of interview against my 29 father, it's as simple as that. Because they can't 78 1 even produce -- it's like the undated statement and 2 undated memos of interview, which would be thrown out 3 in any court in this country, including the district 4 court. 5 349 Q. As against that, Mr. McBrearty...(INTERJECTION) 6 A. There's no memo. 7 350 Q. Your father lied about it for ten years? 8 A. How dare you call my father a liar, because that's 9 one thing my father is not. 10 CHAIRMAN: That, Mr. Murphy, is really 11 nothing to do with 12 Mr. McBrearty. 13 A. You fucking asshole, that's what you are. 14 CHAIRMAN: Nothing to do with 15 Mr. McBrearty Junior. 16 MR. T. MURPHY: Fair enough. 17 A. How dare you call my father a liar. 18 CHAIRMAN: Please stop that, that is 19 disgraceful, to be using 20 language like that. Stop that. 21 A. Do not call my father a liar. How would you like me 22 to call your father a liar. What kind of boy is your 23 father. 24 CHAIRMAN: We must put a stop to this. 25 what is the next question, 26 Mr. Murphy, please. 27 351 Q. MR. T. MURPHY: You say that rumours were 28 circulating about you in 29 Raphoe in relation to whether or not you had an 79 1 involvement in the death of Mr. Barron; is that 2 right? 3 A. The way you phrased that, Mr. Murphy, whether, are 4 you insinuating that I had something to do with the 5 death of Mr. Barron. 6 352 Q. Oh Mr. McBrearty, it's not my concern. Were there 7 rumours about you in Raphoe? 8 A. The way you first started off the question, 9 Mr. Murphy, you've said whether. 10 353 Q. Okay? 11 A. It is not a fact that this Tribunal exonerated me in 12 the death of Richie Barron. 13 354 Q. Sorry. Were there rumours about you in Raphoe? 14 A. I think that's the evidence I gave here to this 15 Tribunal. 16 355 Q. All right. Okay. When did they start and for how 17 long did they go on? 18 A. Sure they're still going on till this day. 19 356 Q. All right? 20 A. The Barron family are constantly calling us 21 murderers. 22 357 Q. All during that time did you speak to your father 23 about the rumours? 24 A. Pardon? 25 358 Q. Did you speak to your father about the rumours about 26 you? Sorry, first of all were you concerned about 27 it? 28 A. What year? What period? What time did I speak to my 29 father? 80 1 359 Q. Any time in the last ten years? 2 A. I probably did. 3 360 Q. You probably did? 4 A. Aye, well I can't specifically tell you what dates 5 and times or what year. 6 361 Q. I'm not asking for that. In all that time, when you 7 might have been speaking to him about rumours, he 8 never mentioned anything about the statement, never 9 said a word to you? 10 A. He's never said to me and I know now the reason why 11 he never said it to me because he knew that I would 12 be so angry and I would be upset. That's the reason 13 he didn't tell me. 14 362 Q. By the way, Mr. Sweeney...(INTERJECTION) 15 A. You see my father knew I was innocent. 16 363 Q. All right. Mr. Sweeney was your solicitor at this 17 time, was he? 18 A. Yes, that's correct. 19 364 Q. All right. So Mr. Sweeney knew about the statement? 20 A. Pardon? 21 365 Q. Mr. Sweeney knew about the statement? 22 A. Mr. Sweeney never told me about the statement. 23 366 Q. He didn't? 24 A. No. 25 367 Q. Even though you were making serious complaints about 26 the guards? 27 A. Never ever did James Sweeney ever tell me about the 28 confession or did I ever tell him that I made a 29 confession because I think if I came out of a Garda 81 1 station after admitting...(INTERJECTION) 2 368 Q. Can I ask you this: Were you contemplating at that 3 time taking an action against the State? 4 A. We didn't take action until I think it was February 5 1997. 6 369 Q. Okay, February '97? 7 A. Mr. Murphy, what was on my mind foremost was, I had 8 meetings with Peter Murphy, who is now sick, and 9 Peter Murphy and us were discussing how we were going 10 to defend if we were charged with murder. 11 370 Q. And in the middle of all of that nobody said to you, 12 God, Frank, there's a statement there you should be 13 worried about? 14 A. But sure the guards, we wrote to the Garda station 15 asking for the statement that I made about my 16 movements. 17 371 Q. That's not the question? 18 A. And they never confirmed anything. 19 372 Q. That's not the question, Mr. McBrearty. 20 A. I didn't know about a confession, Mr. Murphy. 21 373 Q. So nobody mentioned it to you? 22 A. No nobody, including my lawyers. 23 374 Q. Even though you were preparing a possible 24 defence...(INTERJECTION) 25 A. You'll have to ask Mr. Sweeney that because I'm 26 telling you now that my lawyers never once mentioned 27 to me about a confession. 28 375 Q. Even though you were preparing a defence to a 29 possible charge of murder, nobody said anything about 82 1 a confession? 2 A. Because we didn't know anything about a confession. 3 376 Q. But Mr. Sweeney did? 4 A. It was all this hearsay. 5 377 Q. No, no, Mr. Sweeney knew about it? 6 A. He didn't tell me. 7 378 Q. Your father knew about it? 8 A. He didn't tell me. 9 379 Q. All right? 10 A. Is that my fault, they didn't tell me. 11 380 Q. Oh no, I'm not blaming you for anything? 12 A. I'm not Frankie. Let's get one thing on the record 13 here, I have been called Frankie and Frankie by 14 certain people in this room, I have never been called 15 Frankie in my life. Only by members of the guards 16 and only by people representing the guards. I have 17 always been known as Frank McBrearty Junior, or as my 18 aunts and uncles always me young Frank or wee Frank, 19 don't call me Frankie again. 20 381 Q. Insofar as that may have caused offence, I apologise. 21 Mr. McBrearty in future. Just bear with me a second? 22 A. You lost your train of thought. 23 382 Q. Don't worry about that? 24 A. I'm not one bit worried. Do I look worried? 25 383 Q. Now, just look at the statement again, we'll go back 26 to that please if you don't mind? 27 A. I thought you threw in the towel. 28 384 Q. Well Mr. McBrearty, let's go back to it just once 29 more. 83 1 A. You think it's funny do you, fabricating a statement 2 against somebody. 3 385 Q. You say...(INTERJECTION) 4 A. Aye, it's funny, isn't it, ha, ha, ha. 5 386 Q. You say that at the time you signed that there was 6 nothing there; is that what you're saying? 7 A. Nothing, no I didn't say that, that's where you're 8 wrong, you're trying to put words into my mouth. 9 What I said was that I was vehemently defending my 10 family and my recollection that I did sign something 11 to the effect that my father didn't intimidate any 12 witnesses. 13 387 Q. Okay. Well if that's the case then 14 so...(INTERJECTION) 15 A. Sure how do you explain -- how do you explain from 16 page one...(INTERJECTION) 17 388 Q. CHAIRMAN: No, please. 18 A. He's putting this scenario to me and I'm giving him 19 the facts. 20 389 Q. CHAIRMAN: Listen to the question. 21 A. How do you explain that all of a sudden, at the very 22 end of that statement, the scenario completely 23 changes from one of an assault to one of defending 24 your family? How do you explain that, Mr. Murphy? 25 That is a trick that is used by the Special Branch 26 and by the Serious Crime Squad in planting statements 27 on people. I think it's known as a planting of verbs 28 in the High Court, I think that's what it is known 29 as. 84 1 390 Q. CHAIRMAN: Can you listen to the 2 question now please? 3 A. That is the simple facts. That statement was planted 4 on me because I didn't make a confession. 5 391 Q. CHAIRMAN: Maybe you would list on to 6 the question now, would you 7 please, Mr. McBrearty. What is the question? 8 392 Q. MR. T. MURPHY: Mr. Radley gave evidence, 9 he's an expert, as I 10 understand it, in the examination of documents and as 11 I understand his evidence, he says that when my 12 client, Mr. Fitzpatrick, signed there, there was 13 writing there (indicating)? 14 A. There's other experts said that they couldn't tell. 15 393 Q. Where are they? 16 A. Pardon? 17 394 Q. Where are they? 18 A. Could you say that again, I didn't catch that. 19 395 Q. Where are they, the other experts? 20 A. No, I'm talking about the Tribunal's experts. They 21 said that they couldn't tell which side of the 22 statement was written first. 23 396 Q. Insofar as evidence has been given in relation to it 24 to the Tribunal, Mr. Radley has said that that 25 writing was there before Mr. Fitzpatrick signed 26 there. Now, I want to deal with that? 27 A. Right. What you're saying is -- is this what you're 28 saying, you're saying that John Fitzpatrick's 29 signature was put on the statement, on that piece of 85 1 paper there, if you get me right, after this first 2 page was written. 3 397 Q. Well, yes? 4 A. How come no expert here has been able to tell if John 5 Melody's signature was there. 6 398 Q. As I understand it Mr. Radley explains that and it's 7 because Mr. Melody writes so lightly...(INTERJECTION) 8 A. The thing about it, I dispute Mr. Radley because I'll 9 tell you why, if you go to the Law Society and look 10 at how many times he has given evidence in court over 11 the past 18 months to three years, you will see that 12 he's a person that is used by prosecutions to stand 13 up cases. I don't have anybody in here, expert in 14 here to stand up my side of the story. 15 399 Q. Why not? 16 A. Because I can't tell the Tribunal what so do, I have 17 asked the Tribunal. 18 400 Q. CHAIRMAN: Sorry, Mr. Murphy, excuse 19 me a second now. Did you 20 read Mr. Radley's evidence? 21 A. No, I didn't. 22 401 Q. CHAIRMAN: Can I tell you now in a 23 nutshell...(INTERJECTION) 24 A. What he's saying basically, Chairman, he's not able 25 to tell if Mr. John Melody's 26 signature...(INTERJECTION) 27 402 Q. CHAIRMAN: Please Mr. McBrearty, will 28 you please listen. I am 29 going to tell you what I believe he said. All right. 86 1 He said that you can have various grades of certainty 2 as to whether things are written. One is limited 3 evidence, one is conclusive, one is very strong and 4 one is strong. All right. Now, he says there is 5 limited evidence to support the view that there was 6 writing on the back of the page before 7 Mr. Fitzpatrick wrote his name. We asked him what 8 does limited evidence means and he says that it's 9 beyond the balance of probabilities. 10 11 So, for what it's worth and I am taking in to account 12 what you say about the witness, his evidence is that 13 on the balance of probabilities there was writing on 14 the back of the page before Mr. Fitzpatrick wrote his 15 name. Now, what I am asking you to do is, do you 16 want to deal with that or not? 17 A. I'll deal with it but I don't understand this. I 18 mean John Melody is supposed to have signed this 19 statement as well, he's not able to tell whether John 20 Melody's signature was written...(INTERJECTION) 21 403 Q. MR. T. MURPHY: Well...(INTERJECTION) 22 A. Just let me finish first. He's not able to tell if 23 John Melody's signature was written after that page. 24 404 Q. CHAIRMAN: No, he's not? 25 A. Aye. Well that means that John Fitzpatrick wasn't in 26 the room when I signed that statement then. 27 405 Q. CHAIRMAN: No, sorry...(INTERJECTION) 28 A. That's what it means, isn't it, Mr. McDermott. I'm 29 confused here because I'm not an expert in 87 1 handwriting or anything else, but it's obvious that 2 on two different occasions that those two signatures 3 were taken. 4 406 Q. CHAIRMAN: Please listen to me for a 5 moment. He 6 says...(INTERJECTION) 7 A. Why did he write with different pens? 8 407 Q. CHAIRMAN: Mr. McBrearty, please 9 listen to me for a moment? 10 A. Don't point at me telling me what to do, Mr. Murphy. 11 408 Q. MR. T. MURPHY: Listen to the Chairman? 12 A. I'll listen to the Chairman but you won't tell me 13 what to do. 14 409 Q. CHAIRMAN: Listen to me for a moment 15 if you would please. What 16 he says in his evidence is that Mr. Fitzpatrick 17 writes with a heavy hand, right, and that he thinks 18 is why it came through? 19 A. That's not conclusive. 20 410 Q. CHAIRMAN: I'm only tell you so you 21 know? 22 A. That's not conclusive. 23 411 Q. CHAIRMAN: I'm only telling you so you 24 will know, so that if you 25 want to address it...(INTERJECTION) 26 A. That doesn't prove anything. I would like Counsel 27 for the Tribunal to explain to me about this, I 28 honestly now am -- this is the first time I've 29 learned about this, that there is one signature on 88 1 the page -- well there's two, there's mine and 2 Melody's and they can't tell whether it was written 3 first or last but they can tell if Melody's signature 4 was put on -- it was definitely put on after the 5 first page was written. 6 412 Q. MR. T. MURPHY: When did you understand 7 that? 8 A. I'm just after finding it out now. 9 413 Q. Now? 10 A. Mm-hmm. 11 414 Q. I dispute that, Mr. McBrearty, because when I said to 12 you about John Fitzpatrick's signature, you 13 immediately riposted and what about Melody's? 14 A. That's what I said, aye. 15 415 Q. Absolutely. So you knew then, before you said that, 16 in saying that, that Mr. Radley had said something 17 about...(INTERJECTION) 18 A. No I did not. What I'm saying, I'm coming to a 19 conclusion that -- what I said was -- and it's 20 obvious now that he's not able to tell whether 21 Melody's and my signature was written after the first 22 page. Honestly, I am kind of -- I am very confused 23 now altogether because this is the first time I have 24 learned about this. 25 416 Q. Mm-hmm. 26 A. How would my signature and Melody's signature -- why 27 can it not be -- 28 417 Q. CHAIRMAN: Mr. McBrearty, please 29 listen to me for a moment? 89 1 A. -- examined to prove whether my signature was written 2 after the first page? 3 418 Q. CHAIRMAN: Mr. McBrearty, would you 4 listen? 5 A. I don't understand that because I sign my signature 6 pretty heavy. 7 419 Q. CHAIRMAN: Just listen to me for a 8 moment? 9 A. Was my signature examined to see whether my signature 10 is heavy. No it wasn't, was it. 11 420 Q. MR. T. MURPHY: It was. In actual fact it 12 was? 13 A. My signature has been analysed. 14 421 Q. It was actually. What Mr. Radley says about that, 15 and the Chairman will correct me if I am wrong 16 because he was about to tell you this, that 17 Mr. Radley, as I understand, did say, that your 18 signature on that occasion was extremely light also 19 and was not amenable to any...(INTERJECTION) 20 A. You're not listening to me. I gave samples, did 21 Mr. Radley examine the samples to see whether my 22 writing was heavy? 23 422 Q. He did examine all samples given to him, up to 20 as 24 I understand it? 25 A. What did he say about the samples? 26 423 Q. He said he had sufficient samples to make the 27 conclusions that he drew for the Chairman? 28 A. That's not the question I asked. What I asked is, 29 did Mr. Radley say -- did Mr. Radley say did I write 90 1 heavy. 2 424 Q. CHAIRMAN: No, he said you wrote 3 light? 4 A. That couldn't be. Because I am very heavy handed. 5 MR. T. MURPHY: It's a pity Mr. Radley 6 wasn't cross-examined? 7 425 Q. CHAIRMAN: Mr. McBrearty, more 8 correctly what he said was 9 that he could attribute Mr. Fitzpatrick's signature 10 coming through because he wrote heavy. Now he didn't 11 make a comment directly on whether you wrote 12 lightly...(INTERJECTION) 13 A. He wrote heavy because he was planting the statement 14 on me because he knew down the wrote that this was 15 going to be examined and they had to be able to prove 16 -- this is the way I see it now, they had to prove 17 that the first page was written first. Because the 18 ESDA test -- they knew when it would be ESDA tested 19 they wouldn't be able to tell which page had been 20 written first. 21 426 Q. CHAIRMAN: Do you see, Mr. McBrearty, 22 nobody is trying to put you 23 in a corner here? 24 A. I'm in a corner here. 25 427 Q. CHAIRMAN: Will you listen to me 26 please? 27 A. I don't have any lawyers to protect me. 28 428 Q. CHAIRMAN: Please? 29 A. Stuff is being put to me that I have no idea about. 91 1 That I haven't -- nobody has explained to me anything 2 about what these reports are about. 3 429 Q. CHAIRMAN: I am trying to do that if 4 you would let me speak? 5 A. Pardon? What did you say, Mr. Murphy? 6 MR. T. MURPHY: I don't wish to interrupt 7 the Chairman, let the 8 Chairman speak. 9 430 Q. CHAIRMAN: That's exactly what I'm 10 trying to say to you now. 11 You're not a handwriting expert...(INTERJECTION) 12 A. As far as I am concerned from the 13 information...(INTERJECTION) 14 431 Q. CHAIRMAN: Please let me speak, 15 Mr. McBrearty? 16 A. Told by Radley. 17 432 Q. CHAIRMAN: It's only fair you should 18 be told all this to give 19 you an opportunity to address it if you want to? 20 A. Why wasn't I told about this before this. 21 433 Q. CHAIRMAN: But sure you have all the 22 transcripts? 23 A. I don't have any transcripts. 24 MR. T. MURPHY: They're on the web. 25 A. I have tried to print them off and I can't get them 26 printed off. I haven't been -- I think three 27 transcripts have been delivered to me in the past 28 year. 29 CHAIRMAN: Can we pass to the next 92 1 question now. 2 MR. T. MURPHY: We can. 3 A. He says I have all the transcripts. I don't have any 4 transcripts. 5 434 Q. Okay. Mr. Radley says, I am just going 6 to...(INTERJECTION) 7 A. No, why don't you say what Mr. Kim Harry Hughes says. 8 435 Q. Mr. McBrearty, I will conduct the cross-examination 9 now if you wouldn't mind. You can deal with it 10 whatever way you wish once it's done. My clients 11 took that statement...(INTERJECTION) 12 A. They took no statement off me. Simple as that. 13 436 Q. And...(INTERJECTION) 14 A. I did not make a confession. 15 437 Q. And it was completed at 8.20? 16 A. 8.20? You don't even know what time they are saying 17 they completed it. 18 438 Q. 8.25? 19 A. 8.25. 20 439 Q. They completed it at 8.25. At the time it was 21 completed they left the room and there was Messrs. 22 McGrath and O'Grady entered the room, and as I 23 understand what the evidence is going to be when they 24 were coming into the room...(INTERJECTION) 25 A. Well that's not the evidence that I heard at the 26 Tribunal. 27 440 Q. Melody and Fitzpatrick...(INTERJECTION) 28 A. They're supposed to have talked out in the corridor 29 before they came in. 93 1 CHAIRMAN: Let Mr. Murphy speak, 2 please. 3 441 Q. MR. T. MURPHY: If you would only allow me 4 to -- I was going to come 5 to that. On the change over as they are going into 6 the room Melody and Fitzpatrick speak to them and say 7 they have taken a statement. Then Melody and 8 Fitzpatrick go off in search of Mr. McGinley, 9 Mr. Shelly and Mr. Fitzgerald, the superintendent, 10 and there's a discussion in the corridor between 11 those three gentlemen and at least Mr. Melody, if not 12 Melody and Fitzpatrick, at which point the statement 13 is read. Mr. Fitzgerald, as I understand it, makes a 14 copy or two of the statement. He puts the statement, 15 the original in an envelope and puts it in the safe 16 and there's a conference at 9p.m. At that 17 conference...(INTERJECTION) 18 A. Is this a question or a speech. 19 442 Q. At that conference the statement is read and that's 20 my understanding of what the evidence is? 21 A. Evidence by guards here they didn't know anything 22 about a statement. 23 443 Q. Well it was read at the conference because Garda 24 Fowley says it was read at the conference, Sergeant 25 Roache says it was read at the conference, the 26 officers say it was read at the conference and you're 27 saying that Mr. Melody had time between 8.25 and 28 9p.m. to do all of that and get it right the first 29 time he tried it? 94 1 A. Well that's not what I said, I said they had been 2 practicing all day. 3 444 Q. How did they practice all day on that page if you had 4 signed there? 5 A. Pardon? 6 445 Q. How did they practice all day on that page if you had 7 signed that? 8 A. No that's not what I said. I said they were 9 practicing taking a statement and putting on what 10 they wanted and copied from another statement what 11 they wanted to copy. That's my theory. 12 446 Q. He had to fabricate that, a very serious matter, 13 under pressure, he had to get it right, he could 14 only...(INTERJECTION) 15 A. What was he under pressure for, sure he wasn't under 16 investigation. 17 447 Q. He could only do it once and you say he succeeded in 18 doing it first time round with the only opportunity 19 he had, that's a remarkable feat? 20 A. But sure the expert has given evidence here that that 21 was written free flowing. 22 448 Q. Absolutely because he wrote it as you spoke it? 23 A. That is fucking bullshit. Total bullshit. 24 449 Q. It's the only way it can be explained, Mr. McBrearty? 25 A. Let's read it out. Let's read it out. 26 450 Q. It's the only way it can be explained? 27 A. No, you read it out now and see how long it takes you 28 to read it. You read it out, you have put the 29 scenario on the table here. You now read it out. 95 1 451 Q. I will not? 2 A. And see how long it takes you to read it. 3 452 Q. I will not? 4 A. You're just after saying in evidence there, you're 5 just after putting a thing to me that I said it while 6 he wrote it. Isn't that what he said, Chairman. 7 453 Q. He wrote it while you said it? 8 A. Aye, so how did it take an hour and 25 minutes to 9 right. 10 454 Q. Because...(INTERJECTION) 11 A. Because what? 12 455 Q. You were going off on tangents? 13 A. We heard evidence here at this Tribunal that that 14 there front page of that statement was written free 15 flowing. 16 456 Q. Now? 17 A. How would I know all these scenarios if -- how would 18 I be able to put all these things down on this piece 19 of paper when I didn't know anything about the death 20 of Richie Barron, can you explain that Mr. Murphy? 21 The scenario you are making out is we must have 22 discussed Frank we want you to say this, and Frank we 23 want you to say that, Frank we want you to say this. 24 There's a scenario on a piece of paper that I knew 25 nothing whatsoever about. Are you saying that the 26 Chairman is wrong in the fact that I have been 27 exonerated in the death of Richie Barron. Because 28 you're more or less saying that I have gave detail in 29 a one page statement that I knew everything about the 96 1 death of Richie Barron. That's what you are saying. 2 457 Q. Right. You knew -- you said in your evidence that 3 you made some statement to Melody and Fitzpatrick. 4 It was a statement about your work, you say? 5 A. No I didn't say that. I said -- what I said was I 6 believed and I still believe to this day but I don't 7 know if I am a hundred percent right, that I believe 8 that I made a statement that I was at my work to 9 McGrath and O'Grady, that's what I said. 10 458 Q. Okay? 11 A. From my recollection I said that I felt that it was 12 Melody and Fitzpatrick who I wasn't making any other 13 statements to because of the fact that they were the 14 worst out of the four. 15 459 Q. All right? 16 A. That's what I said. 17 460 Q. You said to Mr. Cush yesterday that when he spoke to 18 you about the O'Grady and McGrath statement he said 19 to you, he asked you about that, he said to you that 20 the experts had said that it was your signature and 21 eventually I think you accepted that you said 22 something like that to McGrath and O'Grady? 23 A. I didn't accept anything. What I said from day one 24 is that I did sign something to the effect that my 25 father wasn't intimidating witnesses and I have said 26 that from the very start of the establishment of this 27 Tribunal. 28 461 Q. Well at page 51, question...(INTERJECTION) 29 A. So don't be saying things that I said that I didn't 97 1 say. 2 462 Q. Well, let's see. At page 51, question 221, of 3 yesterday's transcript, if I can find it. Yes, I 4 have it here. Mr. Cush puts a quotation to you: 5 6 "I have already made a statement to the other two Gardaí, I cooperated with 7 them, I told them the truth about what happened." 8 9 10 A. You see, that's planted there, you see "what 11 happened". That was to back up the false confession 12 and that is why, whatever officers took it, why they 13 did it and why they said they initialed the caution 14 and all this, it was in order to back up the 15 confession that they had manufactured against me. So 16 the four of them colluded collectively to frame me 17 for a crime I didn't commit. 18 463 Q. Interesting enough, Mr. McBrearty...(INTERJECTION) 19 A. You see, the thing about it, Mr. Murphy, this is 20 ludicrous what you are suggesting because I didn't 21 know anything about the death of Richie Barron and I 22 protested my innocence the whole day. So how could I 23 dictate to two officers how I killed Richie Barron? 24 Can you answer that? 25 464 Q. Interestingly...(INTERJECTION) 26 A. Because I don't understand how I can say how Richie 27 Barron died. 28 465 Q. Interestingly enough, Mr. McBrearty...(INTERJECTION) 29 A. Because Mick Carroll gave evidence in this Tribunal, 98 1 right, that in the very first week that he was up in 2 his frog gear up the burren looking for an iron bar. 3 I have been constant in what I have said that I was 4 constantly accused of hitting Richie Barron over the 5 head with an iron bar, but in this confession I think 6 it's a stick, is it, they say I hit him with. 7 466 Q. A piece of wood, yeah? 8 A. A piece of wood. 9 467 Q. Okay? 10 A. So how would Mick Carroll, how does he not know 11 that...(INTERJECTION) 12 468 Q. When Mr. Cush put that statement to you or that 13 section of the statement to you your answer was: 14 15 "Yes I recollect I made a statement to that effect." 16 17 A. What effect? 18 469 Q. Sorry, he read out: 19 20 "I have already made a statement to the other two Gardaí. I cooperated with 21 them. I told them the truth about what happened." 22 23 24 And your answer was: 25 26 "Yes, I recollect I made a statement to that effect." 27 28 29 A. No, you're taking out of context what I said, 99 1 Mr. Murphy. 2 470 Q. Sure, I'm reading what's on the page? 3 A. My recollection is that I was defending my father, 4 the fact that he didn't intimidate witnesses, and 5 that I made a statement outlining my movements the 6 night Richie Barron was killed. 7 471 Q. And that question then was pursued, right, and 8 Mr. Cush was asking you questions, the Chairman asked 9 you some questions...(INTERJECTION) 10 472 Q. CHAIRMAN: Sorry, I want to get 11 Mr. McBrearty's answer to 12 that. Would you give me that answer again. Could I 13 put the question to you? 14 A. Yes, Chairman. 15 473 Q. CHAIRMAN: And I want your answer to 16 that because it's 17 important, do you understand. What Mr. Cush put to 18 you was that you made a statement: 19 20 "I have already made a statement to the other two guards. I cooperated with 21 them. I told them the truth about what happened." 22 23 24 That's what Mr. Cush said to you? 25 A. Put to me, yeah. 26 474 Q. CHAIRMAN: And your reply was: 27 28 "Yes, I recollect I made a statement to that effect." 29 100 1 2 A. No, but if you read the whole evidence of my evidence 3 yesterday you will see that I brought up the 4 scenario, you will see it in the transcript. What I 5 was trying to explain was I do remember making a 6 statement that I wasn't making any more statements 7 and I had already made a statement about my 8 movements. 9 475 Q. CHAIRMAN: But, sorry...(INTERJECTION) 10 A. It's in the transcript somewhere. 11 476 Q. CHAIRMAN: No this is very 12 clear...(INTERJECTION) 13 A. Ask the legal team for the Tribunal. 14 477 Q. CHAIRMAN: This is very clear what 15 Michael Cush is talking 16 about? 17 A. That's what I'm talking about. He's trying to 18 pinpoint an issue that had been dealt with in great 19 detail through the day the fact that I have said from 20 the very first day that I have made a statement to 21 two officers, I don't know who they were out of the 22 four, that I had already made a statement about -- 23 478 Q. CHAIRMAN: Exonerating your father. 24 A. Aye. About my movements the night Richie Barron was 25 killed. 26 479 Q. CHAIRMAN: Mr. McBrearty 27 ...(INTERJECTION) 28 A. Because the statement that I made that day in the 29 barracks was what time I went to work, what time I 101 1 got home, what my duties were and all those type of 2 things, that's the statement that I made. 3 480 Q. MR. T. MURPHY: For the purposes of this 4 exercise and this may 5 assist the Chairman if you wouldn't mind, for the 6 purpose of this exercise...(INTERJECTION) 7 A. The purpose -- you want to know...(INTERJECTION) 8 481 Q. CHAIRMAN: Please, 9 Mr. McBrearty 10 ...(INTERJECTION) 11 A. What is added in at the very end. 12 482 Q. MR. T. MURPHY: I'm trying to help you. 13 A. You're not trying to help me, Mr. Murphy. 14 483 Q. In this I am. For the purpose of 15 this...(INTERJECTION) 16 A. At the very end of the second statement it's added 17 in, that is added in the statement in order to get me 18 convicted on the confession. 19 484 Q. Listen? 20 A. I have already told the truth. 21 485 Q. Regardless of...(INTERJECTION) 22 A. Any schoolchild at primary school would know that the 23 words at the end of that statement I have already 24 told the truth to the other two boys, the other two 25 boys are saying that I made a confession. 26 486 Q. Sorry...(INTERJECTION) 27 A. So that's backing up, they have colluded in 28 fabricating a statement against me. 29 487 Q. Let's not disagree about the words that are used in 102 1 the statement. Let's forget that for the moment, 2 right. You made a statement...(INTERJECTION) 3 A. Chairman, you put it like this, in the situation I 4 was in and people accusing my family in the wrong. 5 488 Q. CHAIRMAN: Yes? 6 A. I was in a very hostile situation, I was defending my 7 family and I had nothing whatsoever to hide and by 8 not signing a statement they were saying to me well 9 have you something to hide then you will have no 10 problem signing this, I said I have no problem I told 11 them the truth. That's what happened. I didn't make 12 a confession. 13 489 Q. CHAIRMAN: Mr. McBrearty, let me talk 14 for a moment because it's 15 important; would you. What you go on to say after 16 that is: 17 18 "What I was referring to was my movements on the night that Richie 19 Barron was killed." 20 21 22 A. Yes. 23 490 Q. CHAIRMAN: So is the situation that 24 there's a bit of a 25 confusion here? When you said aye, I made a 26 statement to that effect, what you were referring to 27 was in fact the statement of your movements? 28 A. Yes. Whatever two officers took that statement off 29 me about would you make another statement. 103 1 491 Q. CHAIRMAN: Yes? 2 A. I told them I already made a statement and I was 3 making more statements and I had told them where I 4 was and what I had done that night. 5 492 Q. MR. T. MURPHY: For the purpose of this 6 exercise...(INTERJECTION) 7 A. That's exactly what happened. 8 493 Q. For the purpose of this exercise that I want to 9 do...(INTERJECTION) 10 A. You want to cover up for your client. 11 494 Q. CHAIRMAN: Ah no, please, would you 12 ever listen. Honestly it's 13 impossible if you won't allow the questions to be put 14 to you? 15 A. They can question me all they want, that's why I'm 16 sitting here. 17 495 Q. MR. T. MURPHY: For the purpose of this 18 exercise I'm not really 19 concerned about the content of the 20 statement...(INTERJECTION) 21 A. Why? That should be the most important part. I'm 22 supposed to admit to something that didn't even 23 happen. 24 496 Q. In pursuing the matter Mr. Cush -- you said to 25 Mr. Cush I made a statement to that effect, right, 26 and Mr. Cush said fine if you made a statement to 27 that effect you were saying to O'Grady and McGrath I 28 made the statement to the other two guards, right, 29 and the other two guards were Fitzpatrick and Melody, 104 1 my client, and you accepted that by saying at 2 question 231 well naturally, if it wasn't O'Grady and 3 McGrath it was Melody and Fitzpatrick. Is that okay? 4 A. But you see the conversation I was having with the 5 two officers, whoever they were, was the fact that I 6 had already made a statement outlining my movements, 7 why do you want another statement. That was the 8 general conversation was. Well it probably was more 9 in an argumentative way. 10 497 Q. Okay. Taking it that you did make a statement to 11 Melody and Fitzpatrick? 12 A. I didn't make a statement to Melody and Fitzpatrick. 13 498 Q. Did you or didn't you? 14 A. No I didn't make a confession. 15 499 Q. Sorry, did you make a statement to them? 16 A. I honestly to tell you the truth I don't know what I 17 made to who now at this stage. 18 500 Q. Okay. Did you make two statements fairly close to 19 each other? 20 A. Directly after each other. 21 501 Q. Absolutely. Right? 22 A. Just about I would say 15 minutes before I was 23 released. 24 502 Q. All right. 25 A. So how does that correspond from seven o'clock to 26 8.25. 27 503 Q. Sorry, Mr. McBrearty, I am trying to examine what you 28 are saying as opposed to what anybody else is saying 29 and I understand from you that you're saying you made 105 1 two statements on the night, one to Melody and 2 Fitzpatrick and another one to the other two who are 3 McGrath and O'Grady; is that right? Regardless of 4 what is in them now? 5 A. That's correct, that's what I believe. 6 504 Q. Okay. Now, in the statement to Melody and 7 Fitzpatrick, this is very short and it's saying your 8 father didn't intimidate anybody, right, okay, was 9 that in it? 10 A. What I'm trying to tell you is I don't know at this 11 stage because I do remember defending my father when 12 they were accusing him at the end of the day about 13 intimidating witnesses. 14 505 Q. All right. But you do agree that you were defending 15 your father in all interviews including an interview 16 with Fitzpatrick and Melody; is that right? 17 A. I don't know. I don't know if it was McGrath or 18 O'Grady or Melody and Fitzpatrick. 19 506 Q. In all interviews, regardless of who was doing the 20 interview. Ever interview you...(INTERJECTION) 21 A. I defended my family. 22 507 Q. You defended your family? 23 A. I defended my family to the very hilt. I'll tell you 24 a story, Chairman. My wife told me last night that 25 my youngest daughter said to her is Daddy okay and my 26 other daughter said to her don't be stupid Daddy's up 27 trying to clear his name, do you not know that. 28 That's why I'm here, and I will stay here, 29 Mr. Murphy, till the day I die, you'll never ever get 106 1 me to admit that I made a confession? 2 CHAIRMAN: All right. It's time we 3 rose for lunch, it's been a 4 long morning. 5 MR. T. MURPHY: Fine. What time, Chairman? 6 Two o'clock? 7 CHAIRMAN: Two o'clock if that suits 8 everybody. 9 10 11 THE TRIBUNAL THEN ADJOURNED FOR LUNCH 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 107 1 THE TRIBUNAL RESUMED, AS FOLLOWS, AFTER LUNCH: 2 3 CHAIRMAN: Now, Mr. Murphy. 4 508 Q. MR. T. MURPHY: Now, Mr. McBrearty, just 5 before lunch we were 6 talking about the statement that you made to Messrs. 7 Melody and Fitzpatrick. I think we had established 8 that you had made some statement to them. You 9 disagree with what the statement is, but you had made 10 some statement; is that correct? 11 A. That's correct. 12 509 Q. Okay. Did they ask you to sign it? 13 A. Pardon? 14 510 Q. Did they ask you to sign it? 15 A. I don't recall at this stage. 16 511 Q. Well you signed that? 17 A. You've told me that about 20 times. How many times 18 do you want to tell me? 19 512 Q. Because you told Mr. Flynn in the interview that 20 whenever you signed anything you read it not once but 21 twice? 22 A. That's correct. 23 513 Q. Okay. So if you signed something and you read it 24 twice, I take it you would know what was on it; isn't 25 that right? 26 A. Well after ten years now I can't tell you exactly 27 word for word what was on it. 28 514 Q. Well Mr. McBrearty, now...(INTERJECTION) 29 A. I can tell you this much, that I didn't sign any 108 1 document with what is in that confession. 2 515 Q. Forget...(INTERJECTION) 3 A. That's what you are suggesting. Get to the point, 4 Mr. Murphy. 5 516 Q. Forget that for the moment? 6 A. But that's what you are suggesting. I'm telling you 7 no you now for the last time that I did not sign a 8 document with that writing on the back of it. 9 517 Q. Okay? 10 A. Simple as that. Don't ask me the question again 11 because I'm not going to answer it. 12 518 Q. You signed some document with some writing on it; is 13 that correct? 14 A. Pardon? 15 519 Q. You signed some document with some writing on it, 16 from Melody and Fitzpatrick; is that correct? 17 A. That's what I already told the Tribunal. 18 520 Q. Fine. And you told Mr. Flynn and you've accepted 19 that you told Mr. Flynn and repeated in the Tribunal 20 that everything you signed you read twice? 21 A. Yes, that's correct. 22 521 Q. Okay. I am putting it to you that if you read any 23 document, whatever the document was, twice you would 24 know what was on the document? 25 A. Aye, that's what I have said in this Tribunal, words 26 to the effect that my father didn't intimidate 27 anybody. 28 522 Q. Okay? 29 A. That's the best I can put it. 109 1 523 Q. Then you gave no statement...(INTERJECTION) 2 A. I read no statement twice convicting myself of a 3 crime that I didn't commit. 4 524 Q. But how does that square then with you giving a 5 statement to Melody and Fitzpatrick about what you 6 did at your work? 7 A. I didn't say that. 8 525 Q. But you did? 9 A. No, I said to someone of the four officers. 10 526 Q. Oh yeah, we went through that yesterday with Mr. Cush 11 and he established...(INTERJECTION) 12 A. That's my evidence. 13 527 Q. Sorry, he established and you accepted that if you 14 were talking to O'Grady and McGrath about the other 15 two, you were talking about Melody and Fitzpatrick? 16 A. No, I said what my belief was and it still is my 17 belief to this day, that I believed that I made a 18 statement to McGrath and O'Grady about my movements 19 and about being in work, and that because out of the 20 four Melody and Fitzpatrick was the worst out of the 21 four, that I believe that they asked me would I make 22 another statement and I told them that I already made 23 a statement. 24 528 Q. Okay? 25 A. I am possibly wrong in that because of the fact that 26 the situation was so hostile. 27 529 Q. Well let me ask you this then so...(INTERJECTION) 28 A. I don't honestly know at this stage, after ten years. 29 But I know this much, I didn't make a confession. 110 1 530 Q. All right. 2 A. Because you can't detail out a crime that you had 3 nothing whatsoever to do with. 4 531 Q. Okay. Can I ask you this then so: Do you accept 5 that you said something to Melody and Fitzpatrick 6 like, my father never intimidated anyone, he never 7 offered to my knowledge money to anyone not to give 8 evidence against me, I think it is. Do you say you 9 said something like that to Fitzpatrick? 10 A. No, the only way I can explain this, and you can take 11 it whatever way you like, they were shouting and 12 roaring at me that I was a murdering bastard and they 13 were going to send me down the road for 20 years, and 14 that my father was intimidating witnesses. They were 15 swearing and they said, we fucking know you and your 16 father and we know you's have bullied people in 17 Raphoe for the last ten -- that's the kind of stuff 18 they were putting to me. I was defending my father 19 vehemently. That's not true. 20 532 Q. Okay? 21 A. That is totally untrue. I said, bring in witnesses 22 and show if I have done anything wrong. 23 533 Q. All right? 24 A. They kept tell me he about all these witnesses and I 25 says, well they're tell lies. That's the gist of it. 26 I didn't make a confession, Mr. Murphy. 27 534 Q. All right? 28 A. And you can go on from here to kingdom come. 29 535 Q. Mr. McBrearty...(INTERJECTION) 111 1 A. Mr. Murphy, I have other forums to deal with you and 2 the people you represent, later on after this 3 Tribunal is over. 4 536 Q. That's grand? 5 A. And I will deal with them. 6 537 Q. Okay? 7 A. Because I have rights as European citizen. You have 8 asked me now, I don't know how many times, did I make 9 a confession, that's what you have asked me more or 10 less in a roundabout way, you have asked me about 20 11 times and I have told you 20 times that I didn't make 12 a confession. Obviously you don't understand 13 English. Maybe you should go back to school. 14 538 Q. CHAIRMAN: Mr. McBrearty, the question 15 Mr. Murphy asked you is: 16 Did you say to Mr. Melody and Mr. Fitzpatrick words 17 to the effect that my father wouldn't bribe anybody? 18 A. Chairman, you're not even listening. I have already 19 told you. 20 539 Q. CHAIRMAN: Look it...(INTERJECTION) 21 A. No. I have already told you, Chairman, that -- 22 sitting here today, I have already told the Tribunal 23 over the last six days of my evidence that I made a 24 statement to some one of the four that my father 25 wasn't intimidating witnesses. 26 540 Q. CHAIRMAN: All right so the answer 27 is...(INTERJECTION) 28 A. So he's asked me now 20 times the same question, did 29 you say this to Melody and Fitzpatrick. I don't 112 1 know. 2 541 Q. CHAIRMAN: Bear with me, 3 Mr. McBrearty. Is the 4 answer this: I made such a statement to one of the 5 pairs but I don't know which, is that the answer? 6 A. I don't know what the answer is, that's the truth. 7 542 Q. CHAIRMAN: You don't know what the 8 answer is? 9 A. I honestly -- all I know is that I defended my father 10 when they were accusing him of intimidating witnesses 11 and from my recollection I signed a statement with 12 that on it. 13 MR. T. MURPHY: All right, okay. 14 543 Q. CHAIRMAN: But the answer is you don't 15 know which you signed it 16 to; is that correct? 17 A. I don't know at this stage. 18 CHAIRMAN: That's all right. 19 544 Q. MR. T. MURPHY: Okay, that's grand. So you 20 say that...(INTERJECTION) 21 A. There's a big difference between defending you father 22 and the first page of that statement where it 23 incriminates me. 24 545 Q. Forget the first page for a minute now, I'm just 25 dealing with the second page. At page 411 in the 26 interview to Mr. Flynn, on the third paragraph down, 27 it's in Volume 1, it starts with page two: 28 29 "My father never intimidated anyone, he never offered to my knowledge money to 113 1 anyone not to give evidence against me, them words I never said to any guard 2 ever." 3 4 5 What's the truth? 6 A. Pardon? 7 546 Q. What is the truth? 8 A. What do you mean? 9 547 Q. Well are you telling Mr. Flynn the truth or are you 10 telling the Chairman the truth, because they're 11 different, what you're saying? 12 A. What do you mean? 13 548 Q. You're saying different things to Mr. Flynn and to 14 the Chairman. I want to know whether or not that 15 statement to Mr. Flynn is true or what you have just 16 said to the Chairman in the last two minutes is true? 17 A. What am I supposed to have said to Mr. Flynn? 18 549 Q. That you never said to any guard ever, Melody and 19 Fitzpatrick, O'Grady, McGrath, those words that are 20 contained on that page in that statement? 21 A. What's the words in the statement? 22 550 Q. I read them out. 23 24 "My father never intimidate anyone. He never offered to my knowledge money to 25 anyone not to give evidence against me. Them words there I never said to any 26 guard ever." 27 28 A. No, neither I did. The words what I said, my father 29 never intimidated anybody. They have worded it in 114 1 English, in English writing in such a way that it 2 incriminates me. 3 551 Q. We established you signed it. You read it twice? 4 552 Q. CHAIRMAN: Sorry, Mr. McBrearty, look? 5 A. I'm tell you now, I'm getting fucking sick of this 6 now at this stage. I'm telling you now, I'm telling 7 you where I'm going to go now, Chairman, I'm going 8 down to High Court to seek assistance. Because I'm 9 taking no more fucking bullshit in here about me 10 making a statement of confession, simple as that. 11 I'll tell you something now, if yous want a fight 12 I'll give you one in the High Court. 13 553 Q. MR. T. MURPHY: Can we not just do it here? 14 A. No, we'll do it in the High Court where I have a 15 legal team. 16 554 Q. My client is waiting for a long time to have it out 17 here? 18 A. Your client is what? 19 555 Q. Waiting a long time to have it out here now. Let's 20 have it out here now. 21 A. What are you saying, Mr. Murphy? 22 556 Q. Don't go to any High Court, sit here and answer my 23 questions? 24 A. You don't tell me what to fucking do, right. I'll 25 walk out of here now if I want. You'll not tell me 26 what to fucking do. You make me sit down. Come on. 27 557 Q. I won't? 28 A. Make me sit down. 29 558 Q. I won't? 115 1 A. Make me. Don't you ever fucking point your finger at 2 me. 3 559 Q. Let's have it now? 4 A. You're not my fucking boss. 5 560 Q. Let's have it now? 6 A. Let's have what? 7 561 Q. Sit down and let's have it? 8 A. Have what? 9 562 Q. Let's have it out. Answer my questions? 10 A. I'm not going to take this. You do whatever the fuck 11 you like. I'm not going to be subjected to the fact 12 that I have been accused of killing Richie Barron in 13 here. That is the bottom line. And I've had no 14 protection in here from this Tribunal whatsoever. 15 You're accusing me of killing Richie Barron, that's 16 what you are doing, that's what you're basically 17 doing. 18 563 Q. Take your seat? 19 A. That's the last time you tell me what to fucking do. 20 564 Q. CHAIRMAN: Mr. McBrearty, will you 21 listen to me before you go? 22 A. That's the last time he -- I'm telling you where I am 23 going now, I'm going to get -- 24 565 Q. CHAIRMAN: Mr. McBrearty? 25 A. -- the High Court to stand over my constitutional 26 rights. 27 566 Q. MR. T. MURPHY: Can my client defend 28 himself? 29 A. Your fucking client tried to frame me for murder and 116 1 you can't get out of the fact of it. 2 567 Q. CHAIRMAN: Mr. McBrearty, I'm asking 3 you would you sit down 4 there for a moment? 5 A. I'll be back, Chairman, tomorrow when the High Court 6 -- I'm going down to see if they can assist me. 7 568 Q. CHAIRMAN: Don't mind the High Court. 8 A. You are not going to fucking accuse me of killing 9 Richie Barron. 10 569 Q. CHAIRMAN: Would you ever just listen 11 to me for a moment? 12 A. Are you allowing me to go down and seek assistance 13 from the High Court. 14 570 Q. CHAIRMAN: Look...(INTERJECTION) 15 A. Is a man not entitled to do that. 16 571 Q. CHAIRMAN: Would you ever listen for a 17 moment? 18 A. I'm asking you now, Chairman, are you allowing me to 19 adjourn here now and come back here tomorrow morning. 20 I have to seek assistance from the High Court. 21 572 Q. CHAIRMAN: Mr. McBrearty 22 ...(INTERJECTION) 23 A. Because I'm being accused of the most serious crime 24 humanity can be accused of. 25 573 Q. CHAIRMAN: Would you listen to me for 26 a moment, please, would 27 you? 28 A. I'm asking you for assistance. 29 574 Q. CHAIRMAN: I'm asking you to listen to 117 1 me for a moment and I'll 2 give you all the assistance I can, I guarantee you. 3 Would you listen to me for a moment? 4 A. I'm not going to be dictated by him to sit down, he's 5 not my teacher. 6 575 Q. CHAIRMAN: Would you listen to me now 7 like a good man. We're 8 going through your evidence here, and Mr. Murphy 9 is...(INTERJECTION) 10 A. Strike out all my evidence, I don't care. 11 576 Q. CHAIRMAN: Would you listen to me, 12 please. Mr. Murphy has a 13 job to do, and that is to represent the 14 people...(INTERJECTION) 15 A. He's not going to accuse me of killing Richie Barron. 16 577 Q. CHAIRMAN: Would you listen to me, 17 please? Would you listen 18 to me? It will only take a minute. He has a job to 19 do and his job includes making out that you're not 20 telling the truth and he's entitled to do that? 21 A. Well I'm entitled to defend myself. 22 578 Q. CHAIRMAN: All right. You are 23 entitled...(INTERJECTION) 24 A. I don't have anybody here to defend me. 25 579 Q. CHAIRMAN: Of course you're entitled 26 to defend yourself. Now, 27 would you ever, like a good man, continue your 28 evidence -- 29 A. No, I'm asking you now, Chairman...(INTERJECTION) 118 1 580 Q. CHAIRMAN: -- and get rid of it. 2 A. I'm asking you now, are you going to adjourn here now 3 today till I go down to High Court before it closes 4 today. 5 581 Q. CHAIRMAN: No I'm not? 6 A. Why not? You're denying me my right to go to the 7 High Court. 8 582 Q. CHAIRMAN: Because nothing has been 9 said to you that infringes 10 any of your rights? 11 A. But sure I mean he's saying I made a confession. I 12 have to live in the town of Raphoe, where there's 13 2,000 people. 14 583 Q. CHAIRMAN: Mr. McBrearty, he's 15 entitled to do that? 16 A. But sure I mean he has his opportunity in the High 17 Court. 18 584 Q. CHAIRMAN: No, no, forget about the 19 High Court? 20 A. What you're basically -- you're denying me. That's 21 fine, I'll deal with it tomorrow morning, I'll go to 22 High Court tomorrow morning, but I'm telling you I 23 will go to High Court. You've denied me the access 24 to the High Court. 25 585 Q. CHAIRMAN: So we'll continue your 26 evidence for the moment? 27 A. I'm telling you now, Murphy, don't accuse me again of 28 killing Richie Barron. I'll tell you that now. 29 586 Q. CHAIRMAN: There's no question of 119 1 anyone accusing you of 2 killing Richie Barron. No one has done that? 3 A. People are saying I made a confession, what's that? 4 587 Q. CHAIRMAN: But look 5 it...(INTERJECTION) 6 A. Do you not understand English? 7 588 Q. CHAIRMAN: Mr. McBrearty, there are a 8 number of guards that are 9 going to come in here and say you signed that? 10 A. I signed no statement of confession. 11 589 Q. CHAIRMAN: And you're saying no. Now 12 I'm entitled to hear both 13 sides and I'm entitled to make up my mind who is the 14 correct one? 15 A. You have made up your mind a long ago. 16 590 Q. CHAIRMAN: Have I? 17 A. You have not assisted me at any time in the Tribunal. 18 591 Q. CHAIRMAN: Have I not? 19 A. I am unrepresented. 20 592 Q. CHAIRMAN: In what way have I made up 21 my mind? 22 A. You've made up your mind that I made that confession. 23 593 Q. CHAIRMAN: Have I? 24 A. Well that's my belief. 25 594 Q. CHAIRMAN: When did I do that? 26 A. That's my belief, in the manner in which you have 27 allowed me to sit in this Tribunal unaided by lawyers 28 on a representation par as Garda Commissioner. 29 595 Q. CHAIRMAN: Mr. McBrearty, you would 120 1 want to be very careful 2 about the allegations that you make about people? 3 A. The only conclusion I can come to, Chairman, I have 4 no redress to cross-examine them on the serious 5 allegations they are putting against me. 6 596 Q. CHAIRMAN: Of course you have? 7 A. I don't have. 8 597 Q. CHAIRMAN: They will be coming up here 9 into the witness 10 box...(INTERJECTION) 11 A. I can't cross-examine those people, I'm too 12 emotionally involved. 13 598 Q. CHAIRMAN: If you don't choose to 14 15 cross-examine...(INTERJECTION) 16 A. I won't be cross-examining anybody because I'm not a 17 professional, I'm not a barrister. 18 599 Q. CHAIRMAN: Will you continue your 19 cross-examination please? 20 A. I'm not a barrister and I won't be cross-examining 21 anybody. 22 600 Q. CHAIRMAN: Now Mr. Murphy, you were 23 saying that he said to 24 Mr. Flynn that he never made any of those statements 25 to any guard ever? 26 MR. T. MURPHY: Ever. 27 601 Q. CHAIRMAN: And that's what you want an 28 answer to. Now, do you 29 understand that, Mr. McBrearty? 121 1 A. Well at that time I was giving the statement to Billy 2 Flynn, I honestly believed that there was no way I 3 made a confession and that was the context of the 4 questioning Billy Flynn was putting to me did I make 5 a confession. 6 602 Q. MR. T. MURPHY: No, that's 7 not...(INTERJECTION) 8 A. That is the context that Billy Flynn was putting to 9 me. 10 603 Q. No, that's not right? 11 A. That is right. 12 604 Q. That's not right? 13 A. That is what is on the confession, at the end of the 14 confession. 15 605 Q. If could we have that page on the screen, please? He 16 specifically refers to page two and only page two and 17 you address page two on its own. You say page two -- 18 to start off that answer and you say you never said 19 that to any guard ever. I want you to explain that 20 statement. 21 A. That's what I'm just after saying to you, I didn't 22 say it in the words that are written on that 23 confession. 24 606 Q. Okay. Now, I want you now to explain to me how you 25 could have said that to Mr. Flynn, right, when it has 26 been established -- sorry, that's my word, when 27 evidence has been given by a handwriting expert that 28 that's your signature and you said you read 29 everything twice. You must have read that before you 122 1 signed it. You must have read those precise words 2 before you signed it? 3 A. You're accusing me of making that confession. Can 4 you prove that I made that confession? 5 607 Q. In actual fact, Mr. McBrearty...(INTERJECTION) 6 A. You can't fucking prove anything. 7 608 Q. Sorry, in actual fact, Mr. McBrearty, when I first 8 started out this cross-examination I addressed this 9 document as not being a confession at all? 10 A. What do you mean? 11 609 Q. I said it didn't amount to a confession to the 12 killing of Richard Barron. That's what I said? 13 A. But sure what does it contain then? 14 610 Q. Far from accusing you, I take it that you might have 15 some defence on this? 16 A. Defence on what? 17 611 Q. In any event, let's move on, please? 18 A. No, no, no, you brought it fucking up. Let's get 19 into it. 20 612 Q. I'm not accusing you of anything? 21 A. You're accusing me, you're a fucking -- I'm telling 22 you you're accusing me of making a confession when I 23 didn't. I'm telling you now, Chairman, you better 24 get me a doctor in here because I'm ready to explode. 25 And I mean it. 26 613 Q. CHAIRMAN: Do you need a rest? 27 A. I'm telling you now, I won't be fucking responsible 28 for what I am going to do in here today. 29 614 Q. CHAIRMAN: If you need a 123 1 rest...(INTERJECTION) 2 A. You can fucking laugh all you fucking want, Murphy. 3 615 Q. Listen...(INTERJECTION) 4 A. Don't you fucking laugh at me. 5 616 Q. You don't scare me. 6 A. You don't fucking scare me either or the Irish 7 Government doesn't scare me any more. All right. 8 Don't you fucking laugh in here at me because this is 9 not funny. I'll tell you something now, don't you 10 fucking push me because I'll tell you, I will do 11 something in here I am going to regret. 12 617 Q. CHAIRMAN: Mr. McBrearty, could I ask 13 you...(INTERJECTION) 14 A. I'm telling you now, I'm not going to be subject to 15 this any longer. 16 618 Q. CHAIRMAN: I know it's difficult for 17 you and I know that you're 18 under pressure? 19 A. I am not under pressure. I am anything from under 20 pressure. I am not ready to crack what you think I 21 am. I'm telling you now, Murphy, don't you fucking 22 accuse me again of making a confession. 23 619 Q. CHAIRMAN: And please...(INTERJECTION) 24 A. Unless you can back it up in a court of law. 25 620 Q. CHAIRMAN: Please try and control 26 yourself? 27 A. No I won't. I have asked for a doctor. 28 621 Q. CHAIRMAN: What do you mean you have 29 asked for a doctor. 124 1 A. I have asked for a doctor because I don't feel well. 2 622 Q. CHAIRMAN: What is wrong with you? 3 A. I've got high blood pressure. I can feel if coming 4 on. 5 623 Q. CHAIRMAN: Do you want a rest? 6 A. No I don't want a rest. I want this over and done 7 with. I'm fucking telling you now, don't you fucking 8 accuse me ever agin of making a confession, because 9 I'll tell you now, I'm not fucking frightened of one 10 of you cunts in here I'll tell you. I'm sitting in 11 here with no lawyers or nothing and no redress or 12 anything to cross-examine, I wouldn't have a problem 13 if I was allowed to cross-examine with the same legal 14 representation as the Garda Commissioner and the 15 Minister for Justice has. 16 CHAIRMAN: Mr. Murphy, I have heard 17 the point that you make, 18 the point you make is that Mr. McBrearty has denied 19 to Mr. Flynn that he said these and you say that he 20 has accepted here at the Tribunal that he did? 21 MR. T. MURPHY: Yes. 22 CHAIRMAN: Now, is there any more to 23 be made out of that? 24 MR. T. MURPHY: No. I will move on. 25 CHAIRMAN: All right. 26 624 Q. MR. T. MURPHY: And insofar 27 as...(INTERJECTION) 28 A. You have accused me for the last time of killing 29 Richie Barron anyway, I'll tell you that. 125 1 625 Q. Fair enough? 2 A. Don't you ever fucking tell me to sit down. 3 626 Q. In your interview with Mr. Flynn this page was put to 4 you and you said...(INTERJECTION) 5 A. I am answering no more questions about Billy Flynn. 6 That was 1997, I don't know what I said to Billy 7 Flynn. 8 CHAIRMAN: Will you tell me what the 9 question is please? 10 MR. T. MURPHY: Yes. In one of the answers 11 to Mr. Flynn, it's on page 12 357, if I get the reference correctly. Just bear 13 with me a second now. This document, I think, is the 14 document in which it is put to him and he says, I 15 didn't sign that. 16 A. What I meant, Mr. Murphy, and you can take whatever 17 way you like, I meant I didn't sign a confession. 18 627 Q. Well sorry now...(INTERJECTION) 19 A. Sure play the tape now. 20 628 Q. Sure it doesn't say that? 21 A. Play the tape. 22 629 Q. What the actual words say, it's at the very end of 23 the page, just about six or seven lines up. You're 24 looking at a document which...(INTERJECTION) 25 A. Could I have the full transcript of Billy Flynn's 26 interview please? 27 630 Q. CHAIRMAN: Well just let's hear the 28 question first? 29 A. No, I want to read it. I want to read it. 126 1 631 Q. CHAIRMAN: No, we'll hear the question 2 first? 3 A. I want to read the whole lot. 4 632 Q. CHAIRMAN: I know what you want. Now 5 let's see what I want? 6 A. What do you want? Tell me what do you want? 7 633 Q. CHAIRMAN: I want to know what the 8 question is? 9 A. What do you want? You want me to admit I made a 10 confession, that's what you want. So you can get an 11 easy way out. 12 634 Q. MR. T. MURPHY: The question is that you 13 said to Mr. Flynn you 14 didn't sign that and I you am asking you now why are 15 you saying something different now? 16 A. Pardon? 17 635 Q. Why are you saying something...(INTERJECTION) 18 A. I don't know, that was 1997 when I wasn't very well 19 at the time. 20 636 Q. So are you putting down this 21 interview...(INTERJECTION) 22 A. Hey, I'm not going to answer any more questions from 23 you. You can fuck off that's what you can do. 24 637 Q. That's all right? 25 A. All right. 26 638 Q. I'll ask them nonetheless. 27 A. I'm telling you now, yous have pushed me over the top 28 here now. 29 639 Q. Are you not going to answer that question? 127 1 A. No I'm not going to answer any more questions from 2 you. 3 640 Q. Are you not. Good man. We'll have another go? 4 A. No. No comment. I am protecting my rights here now 5 as an Irish -- from now I am using my right to 6 silence in this -- under your cross-examination, 7 because you're implicating me in a serious crime. 8 You're implicating me in a serious crime and I have 9 to defend myself. So no comment. 10 641 Q. Do you accept now that in relation to this document 11 you have told lies about it previously? 12 A. No comment. I am using my constitutional right to 13 silence. 14 642 Q. CHAIRMAN: Mr. McBrearty 15 ...(INTERJECTION) 16 A. Because I am being accused here of committing a crime 17 and I am using my right to silence. 18 643 Q. CHAIRMAN: And what is the crime? 19 A. Murder. 20 644 Q. CHAIRMAN: You're not? 21 A. I am. 22 645 Q. CHAIRMAN: You're not, Mr. McBrearty? 23 A. I am. 24 646 Q. CHAIRMAN: Well I can assure you 25 that...(INTERJECTION) 26 A. I'm telling you now you will have to take me to the 27 High Court. 28 647 Q. CHAIRMAN: What Mr. Murphy has asked 29 you is whether or not you 128 1 agree about what you told Billy Flynn on the one 2 hand...(INTERJECTION) 3 A. No comment. I am making no more comment until I get 4 proper legal advice. 5 MR. T. MURPHY: I may be able to assist you 6 in relation to this. 7 CHAIRMAN: Yes. 8 MR. T. MURPHY: I am almost finished, would 9 you ask whatever question 10 you want to ask. 11 MR. T. MURPHY: What I propose to do -- 12 with your permission, 13 Chairman, what I propose to do is make some 14 suggestions on behalf of my client to Mr. McBrearty 15 which he can respond to or not as he chooses and I 16 will then finish and if my client gives me further 17 instructions I will make another application to you 18 in relation to that. 19 CHAIRMAN: Then the position is you 20 want to make your 21 application and invite him if he wishes to do so to 22 reply. 23 MR. T. MURPHY: To reply. 24 CHAIRMAN: All right. 25 648 Q. MR. T. MURPHY: Then to conclude the 26 cross-examination and if my 27 client has some objection to that I'll come back and 28 tell you about it. He's not here in the room for me 29 to consult he's elsewhere. 129 1 Mr. McBrearty...(INTERJECTION) 2 A. I told you no comment. 3 649 Q. You have said on numerous occasions that my client, 4 Mr. Fitzpatrick, has been engaged in the fabrication 5 and the fitting up and framing up of many people 6 across the country and I now call on you to produce 7 whatever evidence you have to substantiate that 8 allegation. Do you have any evidence to substantiate 9 that allegation? 10 A. Well I have asked the Tribunal for confirmation of 11 every statement that they have ever taken in their 12 entire careers and have been refused it. 13 650 Q. Sorry, are you saying you have no such evidence, is 14 that what you are saying? 15 A. Pardon? 16 651 Q. Are you saying you have no such evidence, is that 17 what you are saying? 18 A. I am out of here. Because see you, Chairman, you 19 have not protected me once in this Tribunal. 20 652 Q. CHAIRMAN: Would you answer the 21 question? 22 A. I'm not answering it. 23 653 Q. CHAIRMAN: The question 24 is...(INTERJECTION) 25 A. I'm answering no more stupid questions because I 26 didn't make a confession. 27 654 Q. CHAIRMAN: Mr. McBrearty, you're 28 making a serious allegation 29 against Mr. Fitzpatrick? 130 1 A. What about the allegation that he's making against me 2 that I made a confession, does that not stand up for 3 anything here? What about the allegation he makes 4 against me. 5 655 Q. CHAIRMAN: Your shouting 6 and...(INTERJECTION) 7 A. But you're not listening to me. 8 656 Q. CHAIRMAN: Does not impress me in the 9 very slightest? 10 A. I don't care what impresses you, I am here trying to 11 defend myself. 12 657 Q. CHAIRMAN: You're being asked if you 13 have any 14 information...(INTERJECTION) 15 A. What about the allegation he is making to me, Mr. 16 McDermott? 17 658 Q. CHAIRMAN: Or evidence to offer and 18 you are being 19 ...(INTERJECTION) 20 A. You've not once said about the allegations they are 21 making against me that I made a confession, the most 22 serious allegation that has ever been made in this 23 Tribunal. 24 659 Q. CHAIRMAN: I am taking the answer that 25 you are giving is that you 26 have no evidence to offer? 27 A. I have plenty of evidence but I can't get it off of 28 you, Chairman, because you have denied me 29 documentation from all the investigations that those 131 1 officers have been involved in. 2 CHAIRMAN: Have you any more 3 questions, Mr. Murphy? 4 MR. T. MURPHY: You said in relation to 5 this statement here 6 that...(INTERJECTION) 7 A. There was actually a case in Donegal that he was 8 involved in where he tampered with documents. 9 660 Q. Where is the evidence of that? 10 A. But sure I mean I don't -- I can't get the documents 11 because the Chairman won't apply for them. 12 661 Q. That is a wild allegation that you are prepared to 13 make against my client and you're not prepared to 14 support it? 15 A. I am prepared to support it if you give me the 16 documents. 17 662 Q. In any event...(INTERJECTION) 18 A. Give me the documents and bring in the people who 19 they have interrogated over the last 30 years and put 20 them in the box and ask them to ask what way they 21 were treated in custody. 22 663 Q. You've said that the Gardaí in 23 Donegal...(INTERJECTION) 24 A. How many complaints have been made to the Garda 25 Complaints Board about your client? 26 664 Q. The Gardaí in Donegal, you say ...(INTERJECTION) 27 A. How many complaints have been made to the complaints 28 board about your client over his entire career? 29 665 Q. The Gardaí in Donegal you say...(INTERJECTION) 132 1 A. You're asking me to produce evidence. I mean, the 2 State won't give me the evidence that I'm seeking. 3 666 Q. The Gardaí in Donegal...(INTERJECTION) 4 A. How many complaints has your officer, the boy you're 5 representing, how many complaints have been made to 6 the Garda Complaints Board about him over his entire 7 career? 8 667 Q. He has in excess of 30 years unblemished service? 9 A. Unblemished? 10 668 Q. Unblemished. 11 A. Are you sure about that? 12 669 Q. Absolutely. 13 A. That's not what I was told. 14 670 Q. The Gardaí in Donegal you say wouldn't touch this 15 because they thought that it was all wrong; isn't 16 that right? 17 A. Well that's definitely, they didn't want nothing to 18 do with it. 19 671 Q. Right? 20 A. That's why they brought down those two officers to 21 frame up my father. 22 672 Q. Well, who told you that and what evidence do they 23 have to support that allegation? 24 A. Well that is what I believe myself, that's my theory 25 on it now. 26 673 Q. What's the evidence, forget your theories, what's 27 your evidence? 28 A. Everything I read. 29 674 Q. What guard in Donegal has told you...(INTERJECTION) 133 1 A. John Fitzgerald gave evidence here. 2 675 Q. Sorry? 3 A. And Joe Shelly and Superintendent McGinley and all 4 those officers they sent for these boys to come up 5 and interrogate my father. There's no other reason. 6 676 Q. So you have no guard, that's fine? 7 A. Pardon? What do you mean guard, I didn't say there 8 was a guard? 9 677 Q. Well you have no evidence to support the allegations 10 you're making. I have to suggest to you, 11 Mr. McBrearty, that quite the opposite to what you're 12 accusing my client of is actually the case because in 13 the one case in which a statement which he was 14 involved in the taking of...(INTERJECTION) 15 A. That's it. I can't take any more of it. 16 678 Q. Was scrutinised very closely by 17 experts...(INTERJECTION) 18 A. I'll tell you, Chairman, you better prepare for the 19 biggest fight in Irish history. 20 679 Q. By experts, the experts establish...(INTERJECTION) 21 A. I'm telling you now, I'm taking no more of this. 22 Without having a legal team to cross-examine them. 23 Not another thing -- I'm telling you now, yous are on 24 the wire now, you'll have to go right to the end with 25 it. You'll have to do now what you have to do. 26 680 Q. CHAIRMAN: Is that the original 27 statement you have there? 28 A. That's my copy. 29 681 Q. CHAIRMAN: That's all right. That's 134 1 all I wanted to know. 2 A. All right. Don't worry, I won't steal anything like 3 they do. 4 682 Q. CHAIRMAN: I wouldn't think for a 5 minute you would. 6 683 Q. MR. T. MURPHY: Mr. McBrearty 7 ...(INTERJECTION) 8 A. I'm telling you now you do now whatever you have to 9 do. But I'll tell you something now, I'll defend 10 myself to the very end, till I die. You mark my 11 words. I'm taking no more of this abuse. So good 12 luck to you, Mr. Murphy. We'll see yous all in the 13 High Court. 14 684 Q. CHAIRMAN: Mr. McBrearty, before you 15 go...(INTERJECTION) 16 A. And don't threaten me, don't threaten me, because I'm 17 not going to take your threats. 18 685 Q. CHAIRMAN: I'm not going to threaten 19 you in the slightest? 20 A. You've got a fight now in the High Court, I'm going 21 to give it to you. 22 686 Q. CHAIRMAN: Mr. McBrearty 23 ...(INTERJECTION) 24 A. You prosecute me and you try and take my assets off 25 me and you are in the biggest fight you are ever 26 going to be in. So there you are, Murphy, you got 27 what you wanted. 28 687 Q. CHAIRMAN: I think you should listen 29 to what I have to say 135 1 before you go? Very good. 2 3 MR. MCBREARTY LEAVES CHAMBER 4 5 CHAIRMAN: Who else wished to 6 cross-examine, 7 Mr. McBrearty? First of all, Mr. Murphy, had you 8 much more to do. 9 MR. T. MURPHY: No, I had very little. The 10 one thing I do want to say, 11 Chairman, before I go in relation to this is that 12 insofar as I may have seemed short tempered I 13 apologise to you. I hope that the way in which I 14 conducted the cross-examination could not be used 15 against me as a reason as to why that man left the 16 box and I did strive to keep everything in a measured 17 manner and if I did in any way overstep the mark I 18 apologise to you. 19 CHAIRMAN: Well I don't think there is 20 any need for an apology, 21 Mr. Murphy. It seemed to me to be a perfectly proper 22 cross-examination and the questions were relevant and 23 they were appropriately put if I may say so. I am 24 not sure why Mr. McBrearty chose that moment to leave 25 us but he has and it leaves me in the position where 26 I must now consider what is the correct thing to do. 27 But may I take it that you had virtually finished 28 your cross-examination? 29 MR. T. MURPHY: I had actually. Sorry, 136 1 Chairman, in fairness to my 2 client the one thing I did want to say to 3 Mr. McBrearty and it may be as well that I put it on 4 the record, because he was interrupting as I was 5 saying it, is that what I was suggesting to him is he 6 has made allegations against Mr. Melody and 7 Mr. Fitzpatrick in relation to many other cases that 8 they were involved in and alleging that they 9 misbehaved in relation to those cases and my point to 10 him was going to be that in the one case in which the 11 statement which they did take was scrutinised by not 12 one but four handwriting experts and a documents 13 expert, being Mr. Radley as I understand he's a 14 documents experts, and it was subjected to minute 15 scrutiny by those people. They gave evidence to you 16 which lasted for more than a day, possibly two days, 17 and they have given evidence, they say themselves as 18 the scientists above the balance of probabilities 19 that this document is not open to any obvious 20 question and my point to 21 Mr. McBrearty...(INTERJECTION) 22 MR. McBREARTY JUNIOR: Excuse me, Mr. McDermott, 23 you see that thing I gave 24 you, I need that. That document I gave you earlier 25 on. 26 27 MR. MCDERMOTT LEAVES CHAMBER 28 29 MR. T. MURPHY: And my point to 137 1 Mr. McBrearty was going to 2 be it disproved what he was suggesting about my 3 clients and the manner in which they behaved as 4 Gardai. Because the one time it was questioned and 5 examined closely it stood up to any scrutiny it was 6 put to. 7 CHAIRMAN: Very good. 8 MR. T. MURPHY: Thank you, Chairman. 9 CHAIRMAN: Mr. Connelly, you were 10 going to cross-examine. 11 MR. CONNELLY: Yes, Chairman. 12 CHAIRMAN: All I want to know from 13 you, if you would be so 14 kind as to tell me, what area were you going to 15 challenge? Was it do with the February arrest? 16 MR. CONNELLY: Absolutely, Chairman. My 17 cross-examination will be 18 solely related to the Eddie Moss module. 19 CHAIRMAN: Yes. 20 MR. CONNELLY: Which is concerned with the 21 arrest and detention. 22 CHAIRMAN: It wouldn't bear on the 23 taking of the alleged 24 confession. 25 MR. CONNELLY: I have no questions 26 whatsoever relevant to that 27 matter, Chairman. 28 CHAIRMAN: Thank you. Mr. Dorrian, 29 you also wanted to 138 1 cross-examine. 2 MR. DORRIAN: On behalf of Mr. White, but 3 it was strictly in relation 4 to the Edward Moss module as well. 5 CHAIRMAN: Edward Moss module, thank 6 you. 7 MR. DORRIAN: And it wouldn't encroach -- 8 well, although 9 Mr. McBrearty does mention confession a number of 10 times during his evidence I would not be going into 11 that particular area at all. 12 CHAIRMAN: Very good, thanks, 13 Mr. Dorrian. 14 MR. DURACK: Yes, sir, my clients in 15 this module are Messrs. 16 Anderson, Cafferkey, Cannon and Keating. Now there 17 are no allegations against Mr. Cannon at all. In 18 fact he has been praised by the witness. In relation 19 to Messrs. Anderson, Cafferkey and Keating their 20 involvement at the time of the arrest and their 21 alleged mistreatment of the witness and equally their 22 involvement in the returning of the children to 23 Mr. McBrearty's house, that's the relevant parts I 24 think as far as they're concerned and then 25 subsequently in relation to Mr. Cafferkey and 26 Mr. Keating, the allegations that they either kneed 27 the witness in the chest or pushed him in the back 28 when in the garda station. 29 CHAIRMAN: I take it they challenge on 139 1 all those areas. 2 MR. DURACK: You have already heard 3 their evidence as to what 4 they say, sir. 5 CHAIRMAN: Again there is no part of 6 your cross-examination 7 directed towards the alleged confession, is that 8 correct? 9 MR. DURACK: No, as I say we weren't 10 involved in the taking of 11 the confession. I also appear for Mr. Fitzgerald, 12 Mr. McGinley and Mr. Shelly. Mr. McGinley has been 13 subjected to various allegations that he in fact 14 forged the confession at various stages both in the 15 interviews with them, Mr. Flynn certainly, and there 16 are allegations of misbehaviour against him. Equally 17 there is the allegation that he was present at the 18 time that Mr. McBrearty was processed and that he 19 made some statement. 20 CHAIRMAN: When you get him into the 21 room give him the works or 22 something to that effect. 23 MR. DURACK: That's right. And equally 24 there is the allegation 25 that he was in and out to every interview, every hour 26 on the hour for about five minutes, I think that's 27 the allegation that has been made. 28 CHAIRMAN: All right. Yes. Very 29 good. Well then may I take 140 1 it that I have all the evidence that I am ever likely 2 to get in relation to the taking of what is described 3 as the alleged confession? I don't think anybody can 4 add anything further to that. 5 MR. DURACK: No, I don't think any of my 6 clients can. 7 MR. T. MURPHY: No. 8 CHAIRMAN: Very good. 9 MR. T. MURPHY: I checked with my client 10 and he's satisfied that the 11 cross-examination was over. 12 CHAIRMAN: Thank you. 13 MR. T. MURPHY: So it's at the end now. 14 15 END OF CROSS-EXAMINATION OF MR. FRANK MCBREARTY 16 JUNIOR BY MR. T. MURPHY 17 18 CHAIRMAN: Thank you. Very well. 19 That completes -- 20 Mr. McDermott, that completes the business for today. 21 MR. McDERMOTT: Yes, sir. It would be 22 proposed then in the light 23 of present circumstances that we could perhaps 24 proceed then with the listed evidence for tomorrow. 25 CHAIRMAN: Yes. 26 MR. McDERMOTT: Which are Mr. O'Grady and 27 Mr. McGrath. 28 CHAIRMAN: Thank you. I want to make 29 it clear that in the light 141 1 of what has happened today I have to consider what 2 the correct thing to do is. I am conscious of the 3 fact that on certainly one previous occasion and 4 indeed perhaps more it's been suggested to me and 5 hinted to me that I have been over generous to 6 Mr. McBrearty in the way that he has been treated and 7 that I have given him far too much leniency to the 8 extent that it has certainly come up against or 9 bordered on unfairness to the people, the persons 10 against whom he is making allegations. I am 11 conscious of that. I tried to avoid, obviously, 12 drawing any conclusion in my mind as to what exactly 13 were McBrearty is attempting to achieve by the 14 wholesale abuse that he has given to everybody who 15 has tried to transact the business of the Tribunal 16 with him. 17 18 If I have given the impression that I am being unduly 19 favourable to Mr. McBrearty, I want to assure those 20 parties that it was merely in the hope of getting a 21 clear statement from Mr. McBrearty as to what his 22 case is in relation to this transaction and it has 23 never been my intention to take sides with him in any 24 way. So I just say that in order to reassure the 25 contradictors to his version of the occurrence to 26 reassure them that I am at all times keeping an open 27 mind in relation to this. 28 29 142 1 In relation to Mr. McBrearty's, again, walking out on 2 the Tribunal, as we all know there are two remedies 3 open to a Tribunal sitting as I am and one is to seek 4 the assistance of the High Court to ensure that the 5 witness comes back here and assists the Tribunal and 6 gives his evidence, that's the one remedy that we 7 have. The other remedy we have is to refer the 8 matter to the High Court for the purpose of the High 9 Court considering the witness' behaviour in the light 10 of possibly reaching a conclusion that that behaviour 11 is entirely unacceptable and that it should be dealt 12 with in some particular way. 13 14 Now, I want to consider what I should do in relation 15 to this. I pause before making any decision in the 16 hope that perhaps Mr. McBrearty, as he has done in 17 the past, may reconsider his position and come back 18 and deal with whatever points remain to be dealt 19 with. So in the hope that he may hear what is being 20 said and in the hope that he may decide yet again to 21 come back and finish his evidence, I don't propose to 22 make any order in relation to this matter for the 23 time being. But I will re-visit the matter later on 24 and come to a decision in relation to it. 25 26 27 May I say that I can understand that Mr. McBrearty is 28 under significant amount of pressure, I note that he 29 has put significant emphasis on the fact that he is 143 1 not professionally represented here. I also, I 2 think, would be forgiven for drawing the conclusion 3 that he is somebody who is overwrought by the whole 4 concept of the Tribunal. I have you tried to 5 compensate for that by giving him every possible 6 leniency here. 7 8 Perhaps he will come back in the morning and if he 9 does I will certainly allow him to continue his 10 evidence at ten o'clock tomorrow morning. If he 11 doesn't then I will have to commence considering what 12 is the correct thing to do. Very good, we will rise 13 for today. 14 MR. McDERMOTT: Perhaps it might be better 15 if we, in respect of the 16 Garda evidence on this sub-module, adjourned the 17 detectives who are concerned with the taking of the 18 statement who are listed in the forthcoming days, 19 Wednesday and then on Monday, till Monday and take 20 them as a full block from Monday onwards. 21 CHAIRMAN: Yes, that would be a good 22 idea. 23 MR. BIRMINGHAM: I respectfully agree with 24 that suggestion. 25 CHAIRMAN: Very good, we'll adjourn 26 that block until Monday. 27 Mr. Dorrian is that all right with you? 28 MR. DORRIAN: Yes, Monday is all right. 29 I will be in difficulty 144 1 returning tomorrow. 2 CHAIRMAN: Yes. 3 MR. McDERMOTT: That is if Mr. McBrearty 4 returned tomorrow, 5 Mr. Dorrian...(INTERJECTION) 6 MR. DORRIAN: I would be in extreme 7 difficulty. 8 CHAIRMAN: Mr. Dorrian, if he comes 9 back tomorrow I want to 10 give him every opportunity of concluding his evidence 11 because the consequences for Mr. McBrearty are 12 serious. 13 MR. DORRIAN: I appreciate that, 14 Chairman. 15 CHAIRMAN: So it may perhaps 16 inconvenience you and I'm 17 sorry if it does, but if he turns up here tomorrow 18 morning I will continue his evidence. 19 MR. DORRIAN: May it please the court. 20 21 22 23 THE TRIBUNAL THEN ADJOURNED UNTIL WEDNESDAY, 17TH 24 JANUARY 2006 AT 10.30A.M. 25 26 27 28 29 145