Statement from Denis O'BrienTuesday 22 March 2011 20.43
Moriarty Tribunal Report a highly selective presentation of information to suit theory
The Moriarty Tribunal Report is based on the opinions and theories of Mr Justice Michael Moriarty and his legal team using highly selective materials.
It is a travesty of justice that this report can put forward opinions based on using only the materials that suit a pre-determined position whilst rejecting everything else.
Indeed, Mr Justice Moriarty in this report states that in evidential terms hearsay must be treated with the utmost caution yet it is in hearsay, and hearsay alone, that he reaches his findings on, for example, the Hartigan's post-match drink.
Extraordinarily, the Report utterly rejects the overwhelming sworn evidence provided by 17 civil servants from the Department of Transport, Energy & Communications and the Department of Finance, five Government Ministers, two barristers from the Office of the Attorney General, a former Taoiseach, a Senior Counsel to the Irish State, and Professor Michael Andersen, Principal of AMI - the internationally-renowned world experts in this field who advised the Irish Government on the awarding of the second mobile phone licence process.
It is of grave concern that the sworn evidence from so many reputable individuals has been completely ignored. Every one of those witnesses confirmed unequivocally that Michael Lowry did not interfere in any way with the second mobile phone licence process.
The Tribunal has employed an approach to this Report which is flawed and compromises its own integrity and that of the Oireachtas which established it.
Let me remind you that when delivering judgement on the modus operandi of tribunals in March 2010, Mr Justice Adrian Hardiman of the Supreme Court said:
"…This Tribunal manifests two features of a tribunal of inquiry which are, in my opinion, fraught with great risks for justice. The first is that the investigative function - that carried out by the gardaí in relation to criminal matters - and the adjudicative function, or the function of making findings - that carried out by the Courts in criminal matters - are, in the case of a tribunal, conferred on a… single person"
The Tribunal has been so flawed in its approach that in fact in 2010, Mr. Justice Moriarty was forced to admit to having made two 'not insignificant errors'. One of those "errors" was that the Tribunal published a critically important Ruling in 2008 that was false and which it knew to be false.
Licence awarded to Esat Digifone fairly and on merit
All of the evidence from the civil servants and members of the Project Team involved in awarding the second mobile phone licence was that the bid process was not interfered with. All of the evidence to the Tribunal was that Esat Digifone won the bid fairly.
This view is endorsed by the evidence of Professor Michael Andersen, given in October and November 2010. AMI are internationally-renowned experts in their field and advised the Irish Government throughout the second mobile phone licence process. AMI have overseen or conducted more than 200 licence processes in over 70 jurisdictions.
In his evidence, Professor Andersen stated that "Michael Lowry simply did not feature in the competition process. I am confident that if any such interference on his part existed then I would have become aware of it as part of my central and critical involvement in the GSM 2 process."
Professor Andersen reiterated clearly the evidence provided by other members of the project team awarding the licence, that Esat Digifone presented the best bid and were selected exclusively on merit. He firmly stated that "as far as AMI was concerned, the licence competition process was conducted fairly and without any untoward interference or influence being brought to bear."
Professor Andersen further said that the Esat Digifone bid was the "clear winner" of the licence competition process and that the "Esat Digifone bid was one of the best they had ever seen in their widespread experience of managing mobile phone competitions worldwide".
The truth about the conversation in Hartigan's
In the Report, Mr Justice Moriarty states that it is his opinion that I met with Mr Michael Lowry in Hartigan's Pub on 17 September 1995 and that during that meeting we discussed the progress of the Esat Digifone application.
The facts are as follows: Yes, I met with Michael Lowry, a fact I have never denied. In fact it was me who brought this to the Tribunal's attention. I had bumped into him earlier at the All-Ireland Final and suggested meeting for a drink. I am a businessman and I identified an opportunity to speak with the Minister of the day in relation to an issue in my fixed-line business Esat Telecom. We did not discuss the licence. I was very aware of the fact that it was a taboo subject.
How the Chairman of the Tribunal, who wasn't party to this brief conversation between two individuals, could make such a leap of epic proportions beggars belief.
Quite simply, Mr Justice Moriarty was not at this meeting yet has made a finding about the discussions. It is absolutely incredible, unacceptable and contradictory of all acceptable judicial norms for a High Court Judge to create his own version of a conversation to fit his pre-determined conclusion.
I did not give a single red cent to Michael Lowry
In the Report, Mr Justice Moriarty also gives his opinion that payment was made by me to Michael Lowry. I emphatically reject this. This is yet another example of the Tribunal presenting a hypothesis of a series of unconnected events and transactions and to shoehorn them to create an impression that money was given to Michael Lowry is incorrect and unjust.
At no time did I make or attempt to make any payment to Michael Lowry and not a single witness gave evidence of any payment by me to him. I did not give a single red cent to Michael Lowry, in his capacity as a government minister, as a public representative or as a private citizen.
Attempts by the Tribunal to connect a $50,000 donation to the Fine Gael party by Telenor to the licence process were flawed and are accepted by the Report as being a legitimate and perfectly legal political donation.
However, the Tribunal Report makes assertions that there are property and financial transactions which led to benefit to Michael Lowry from me. Let me repeat that at no time did I make or attempt to make any payment to Michael Lowry.
The purchase of a property in Spain by me and a loan which Michael Lowry took out in relation to a house in Dublin are two completely separate and unrelated transactions. Unequivocal evidence was presented to the Tribunal that Michael Lowry was not a beneficiary of what are two separate transactions which the Tribunal attempted to link to create a misleading impression.
Similarly, the three property transactions in the UK investigated by the Tribunal are intended to incorrectly suggest that I attempted to conceal the transfer of money to Michael Lowry. The Tribunal has yet again tried to connect totally unrelated transactions to create a misleading impression.
Clear and unequivocal evidence was presented to the Tribunal that the Doncaster Rovers Football Club deal was exclusively mine. Michael Lowry had no hand, act or part in this deal. Indeed the Tribunal Report makes no finding that Michael Lowry benefited from this transaction
As to the other properties, let me state once again that I had nothing to do with either the Mansfield (a derelict farm site in the UK Midlands) or Cheadle (a Church Hall in the UK Midlands) deals and knew nothing about them until they were brought to my attention by the Tribunal in 2001.
This is because I had no direct or indirect interest in either of them. The true fact is that no evidence emerged to connect the transactions in the way that the Tribunal's opinion has suggested.
Unequivocal evidence was presented to the Tribunal that Michael Lowry was never a beneficiary of what are two utterly separate transactions that have been linked to create a misleading impression.
I bought a townhouse in Spain from Mr David Austin in the summer of 1996 for the use of my parents. I continued to own this property until I disposed of it a few years ago.
All evidence and documentation made available to the Moriarty Tribunal fully supports this position.
From evidence presented to the Moriarty Tribunal, I was also made aware of a separate personal loan transaction of IR£147,000 between Mr David Austin and Michael Lowry that I knew nothing about at the time and which is utterly unconnected.
Similarly, I knew nothing about the Mansfield transaction until the Tribunal brought it to my attention in 2001. I had nothing to do with the purchase of this property and have never had any direct or indirect interest in it.
An attempt to connect the funding of this transaction to me by way of suggesting that a long-standing arrangement that was in place with Aidan Phelan with regard to signing rights on a capital account in Credit Suisse Boston Capital is both unfair and incorrect.
A documented agreement whereby Aidan Phelan transferred a fixed sum for professional fees from this account has been deliberately misrepresented by the Tribunal in an attempt to create a connection that simply never existed.
Again, I knew nothing about the Cheadle transaction until the Tribunal brought it to my attention in 2001. I had nothing to do with the purchase of the property and have never had any direct or indirect interest in it. Furthermore, I had neither an involvement nor knowledge of any loan for the property involving Woodchester Bank.
All sworn evidence and supporting documentation given to the Tribunal proves that this property was purchased by Aidan Phelan. The transaction was funded by a loan he raised and documentation clearly proves he was the beneficiary of 100% of the proceeds of the subsequent sale of the property.
The Tribunal has attempted to create an obscure connection between Michael Lowry and me relating to loans from Woodchester Bank. The facts provided in evidence are that Michael Lowry received no loan from Woodchester Bank or indeed any other entity in relation to the Cheadle property.
The attempt by the Tribunal to use these property transactions to connect payments from me to Michael Lowry is nothing more than a tapestry of supposition.
My conscience is clear
In conclusion, I disagree with and utterly reject the opinions expressed in this Report. Mr Justice Moriarty has allowed opinion and supposition to replace evidence and proper process.
My own conscience is clear on the matters investigated. I am satisfied with the wholly-merited success of the Esat Digifone Tender back in 1996 and am proud of the difference winning that licence made to the competitive landscape for telephony in Ireland. The success in winning this licence laid the foundation for Digicel and its growth around the world. Digicel now has networks in 32 countries employing thousands of people around the world.
The Tribunal is made up of only one member, Mr Justice Moriarty, who was expected to present what is referred to as a "reasoned expression of opinion relating to the matters he has investigated" with no legal effect or consequences.
He has completely failed to do this and instead produced a work of fiction that is so far from the truth that it is now incumbent on the judiciary to investigate the conduct of Mr Justice Michael Moriarty and the Tribunal legal team for the manner in which they conducted themselves.