"THE MEMORY OF JESUS IS BOTH SACRED AND SUBVERSIVE"
Wednesday, 13 June 2012
CHRONICLE OF A JUDGE STEPPING ASIDE FROM A BELFAST CASE
Justice Gemma Loughran
By Chris Moore (Taken from THE DETAIL) - 11.06.2012
COURT transcripts obtained by The Detail reveal that a Crown Court judge stepped aside last year during the trial of a sex abusing priest when the prosecution raised concerns about her admitted friendship with Patrick Walsh, a former Bishop of Down & Connor, who was a potential witness.
The case was that of Fr James Donaghy who was later sent to jail for 10 years in February this year after a second trial for offences involving three young boys going back 17 years.
The judge who stood down was Her Honour Judge Gemma Loughran who began hearing the case on January 24 last year.
But during two days of courtroom drama – Friday, January 28 and Monday, January 31, 2011 – Judge Loughran refused to step aside over prosecution concerns that there may have been a conflict of interest due to her friendship with retired Bishop Patrick Walsh.
She said there was nothing in the papers relating to the case that would have indicated Bishop Walsh was likely to be a witness in the case.
It was only when the prosecution persuaded her that Bishop Walsh could be called by the prosecution as a witness because of the Bishop’s previous knowledge of inquiries carried out into Fr Donaghy on his instructions that the judge finally decided to stand aside.
Fr Donaghy’s trial began on January 24 2011. He faced 14 counts, 13 of which involved allegations of sexual assault, and one for common assault.
The case was based on the allegations of two victims whose identities are protected in law and who are identified in the official court transcripts provided to The Detail as victim A and victim B.
We can reveal that victim A is Catholic priest Fr Patrick McCafferty who gave up his right to anonymity.
Judge Loughran granted a defence application to have the cases of Fr McCafferty and victim B severed. The effect was that the charges based on victim B’s allegations would be heard in a separate trial to be held at a later date.
The case involving Fr McCafferty would proceed immediately.
But separating the two victims cases into two separate trials meant reporting restrictions were imposed as the case involving Fr McCafferty got under way. Nothing could be reported until the conclusion of the second trial as publicity of the first case could influence the jury in the second case.
After Judge Loughran stepped aside, another trial began in November last year.
But this time there would be an additional key witness and the case went ahead involving the testimony of all three victims. And this time there was no severance of the cases against the paedophile priest.
At the conclusion of that trial, The Detail requested the transcripts for the two crucial days of January 28 and 31 when Judge Loughran and the prosecution clashed over her friendship with Bishop Patrick Walsh.
It took several months to obtain the transcripts.
THEDAYTHEORDEALENDEDFORSURVIVORS OF FR DONAGHY’S ABUSES
When Fr Donaghy was sent to prison in February those who had had to endure his predatory sexual abuses over 17 years gave thanks.
Outside the courtroom the survivors spoke of their relief that their ordeal was over – that this conniving paedophile was finally behind bars.
But everyone was careful not to mention that the trial judge who sentenced Fr Donaghy – His Honour Judge Patrick Lynch – was not the trial judge who began hearing the case in January 2011.
There was no public mention of Her Honour Judge Gemma Loughran finally recusing herself as the trial judge when the prosecution raised the question of her personal friendship with the former Catholic Bishop of Down and Connor, Fr Patrick Walsh.
Over two days of legal argument, January 28 and January 31, Judge Loughran maintained that there was nothing in the papers relating to the case that would have made her even consider stepping down from the case owing to her friendship with the Bishop.
Fr Donaghy was facing 14 counts – 13 involving sexual abuse of young boys and one of common assault.
The indictment was based on the evidence of two survivors of Fr Donaghy’s abuse, one of them a well-known priest Fr Patrick McCafferty who is identified only as A in the official court transcripts and the other identified as victim B.
Fr Donaghy was represented by Barra McGrory QC, who was recently appointed as head of the Public Prosecution Service. Mr McGrory successfully sought severance of the latter counts involving victim B.
Mr McGrory also made an abuse of process application for which the hearing began on January 24 last year. He argued over what he alleged was a lack of disclosure over new evidence taken from Mr B in the weeks before the trial got under way.
That is the background to the status of the trial when the first mention was made of Judge Loughran’s friendship with Bishop Patrick Walsh by the father of victim B.
Mr B’s father told The Detail about the concerns of those involved in the prosecution of Fr Donaghy that the indictment had been split into two cases.
Mr B’s father said: “At one stage he [PPS lawyer] leaned back in his chair and I whispered to him, ‘Does she play golf with the Bishop?’ When we arrived in court at 11-11.30 on Friday January 28, we were told we would not be needed.
“So we left court at lunch recess. I had put a spark into the PPS man’s head by asking who the judge played golf with. He was now asking questions about her friendship with the Bishop.”
In court that morning, January 28, the PPS prosecutor, Ken McMahon QC, began by asking Judge Loughran for a brief meeting in her chambers. The court rose.
When it resumed after the short recess, Judge Loughran remarked: “Before I give my judgment I want to say something about a matter that’s been drawn to my attention this morning. Mr McMahon has reported to me a comment made by a member of the family of B during a consultation yesterday, when the family learnt that I had severed the counts against, concerning A [Fr McCafferty].
“That comment was that I played golf with the Bishop, the implication being that I had made a decision which was not exclusively based on the facts and the law; a decision contaminated by bias. I have never played golf with anyone.
“But I would regard myself as a personal friend of Bishop Walsh. I can say that to the best of my recollection I have not had a conversation of any nature with Bishop Walsh since I commenced my involvement with this criminal case. I have never at any time, prior to that involvement, mentioned to Bishop Walsh the allegations against James Donaghy, nor has he mentioned them to me.
“While Mr McMahon made no application that I should recuse myself on the grounds that the witness in this trial had expressed to him the views set out above, he indicated it was a matter he was leaving to me to decide.”
Judge Loughran then read into the court records legal precedent that she believed supported her position that she could not be view as behaving with bias. She referred to a ruling a week before by Mr Justice McCloskey in which he observed, according to Judge Loughran, “that perceptions are all important, reflect the immutable rule that justice should not only be done but should manifestly and undoubtedly be seen to be done.”
Judge Loughran concluded: “Bishop Walsh is not a witness in this trial. If he were, I would of course have recused myself, as I would recuse myself in any trial in which I had any knowledge of or relationship with a witness. Having considered the matter carefully, I see no reason in factor in law to recuse myself in this trial. Now, to turn to the decision I was asked to make overnight.”
On the application for the abuse of process Judge Loughran said the defence cannot be satisfied in spite of Mr McMahon’s assurances about the notes of the consultation with victim B that resulted in the additional statement.
Judge Loughran said: “It’s clear that without an independent assessment as to whether the notes taken by counsel meet the test for disclosure, the defence will see the fairness of this trial as compromised.”
She went on to say this perception was fuelled by what she described as a “leading question” put by a police constable. She added: “In the interests of insuring the fairness of the trial, my decision would be that I should examine the notes of counsel or alternatively that the Prosecution Service should consider asking an independent counsel who’s not been involved in this case to examine those notes and to apply the disclosure test.”
Judge Loughran suggests to Mr McMahon that to ensure that Mr McGrory receives fairness on the disclosure issue, “if the directing officer or whoever at the appropriate level within the Prosecution Service was to view favourably my suggestion that a counsel who’s not been involved in this case would look at the notes and apply the test of disclosure. That would, in my view, be an independent assessment and I would not seek to go behind that assessment if that was to meet with a favourable reception from the Prosecution Service."
This is how Mr McMahon responded and how he picked up again on the Judge’s friendship with Bishop Walsh – someone he tells her has been involved in the past in hearing evidence against Fr Donaghy and who has made decisions on Fr Donaghy’s innocence or guilt.
MR McMAHON: Can I ask, first of all, why your Honour is going behind my assurance?
JUDGELOUGHRAN: Because the defendants have said that in their view they would perceive their right to a fair trial as being compromised without an independent assessment. I’m making no judgment on that. But I’m just concerned about their perception of their right to a fair trial. And I make it absolutely clear, Mr McMahon, as I said on the record yesterday, I have no doubt about your professional integrity, and I have no doubt about the assurances that you have given, but it’s because the defence have insisted that without an independent assessment their concerns will not be assuaged.
MR McMAHON: Well, I have some further things to say. First of all, I would ask your Honour if we could have a transcript of your Honour’s ruling today.
MR McMAHON: Rulings, today.
JUDGELOUGHRAN: What I would say is that there are some points that I tidied up. There are obvious mistakes. I mean, I’ll print off what I have done, but there are obvious mistakes as you go through it, where it might seem I’m attributing something to the court rather than to Mr McGrory and submissions that were made, but subject to that, I’ll print it off now, yes, for both counsel.
MR McMAHON: I feel I should say that your Honour has now declared in public your Honour’s friendship with Bishop Walsh.
MR McMAHON: Whose name recurs frequently in the papers and who held an investigation into the guilt or innocence of the defendant.
JUDGELOUGHRAN: Yes. The issue before this court is whether the defendant, and it’s a matter which will be determined by the jury, the issue in this court is whether the defendant is guilty beyond reasonable doubt of the offences alleged against him. That I have a personal friendship with Bishop Walsh do you wish to make a formal application, Mr McMahon, for me to recuse myself?
MR McMAHON: What I am saying is I’m putting, well, to say I’m putting your Honour on notice may be going too far. I’m at present simply saying that this is something which I now feel will have to be considered in view of your Honour’s declaration in public, in the course of this case, as to your Honour’s friendship with Bishop Walsh, and in particular in view of the words which your Honour read out from the recent ruling of Mr Justice McCloskey, as being something which would give rise to a real danger of bias being thought to arise if the judge were closely acquainted with any member of the public involved in the case.
JUDGELOUGHRAN: Who is a witness in the case.
MR McMAHON: Particularly if the credibility of that individual could be significant.
JUDGELOUGHRAN: And the credibility of what individual?
MR McMAHON: Bishop Walsh. It’s particularly if, it’s not confined to that. Your Honour has declared a close acquaintance with…
JUDGELOUGHRAN: Any member of the public involved in the case.
MR McMAHON: Yes.
JUDGELOUGHRAN: And how is Bishop Walsh involved in this criminal case?
MR McMAHON: By having held a prior inquiry into the guilt or innocence of the defendant, and having come up with the conclusion. And your Honour…
JUDGELOUGHRAN: I am completely unaware of any decision by Bishop Walsh as to the guilt or innocence, either of the I’m completely unaware, and I have gone through third party disclosure material, I am completely unaware of any decision by Bishop Walsh as to the guilt or innocence of this defendant. The guilt or innocence of this defendant is before this court, but I’m not going to say anything further.
MR McMAHON: No, no, and I’m not making a formal application at present, I simply felt that I should alert the court to that circumstance.
JUDGELOUGHRAN: I think I need to know what you are doing, Mr McMahon. Are you saying to me that I should take no further part in this case until you make a decision as to whether you are going to make a formal application for me to recuse myself?
MR McMAHON: Yes.
JUDGELOUGHRAN: Very well. Well, I think there is no point in us continuing. There is no point in my giving you a copy of this decision, because if you…
MR McMAHON: Oh, no, I very much require a copy of your Honour’s decision for the purpose of making this application.
JUDGELOUGHRAN: The purpose of making what application?
MR McMAHON: The application sorry, considering the making of an application to your Honour to recuse herself from the case.
JUDGELOUGHRAN: Sorry, which application? Are you saying you want a copy of my decision on the application, my decision on the substantive application?
MR McMAHON: I want a copy of everything your Honour has said this morning.
JUDGELOUGHRAN: Are you suggesting, Mr McMahon, just so that I can have this on the record, are you suggesting, because if you are suggesting it I regard it as extremely offensive, are you suggesting that my decision overnight, which I have just read out, might be contaminated by bias on my part?
MR McMAHON: No, I have not said anything to that effect.
JUDGELOUGHRAN: Well why then, just to be clear about it, I may have misunderstood what you said…
MR McMAHON: Your Honour, the reason…
JUDGELOUGHRAN: No, sorry, Mr McMahon, let me finish.
MR McMAHON: Sorry.
JUDGELOUGHRAN: You asked me for a keep of the decision that I have just read out. I said of course I’ll give it to you. You then said because I had said on the record that I am a personal friend of Bishop Walsh, who has determined guilt or innocence in this case, a notion I fail to understand, a concept that just completely eludes me, that Bishop Walsh has determined guilt or innocence in this case, but you have said that I said because you are considering whether to make an application to me to recuse myself, I then said: Well, I’ll not give a copy of any, I’ll not give a copy of this decision because all decisions that I have made in this case may have to be revisited. And you said: Oh, I require a copy of that decision.
MR McMAHON: Yes.
JUDGELOUGHRAN: In order to consider the application to recuse.
MR McMAHON: Oh, I’m sorry, forgive me, your Honour has misunderstood me. What I meant was I require a copy of what your Honour, of all the totality of what your Honour has said this morning, simply so that people other than myself can consider what your Honour has said about the question of friendship with Bishop Walsh.
JUDGELOUGHRAN: Yes, but I’m going to ask you on the record, Mr McMahon, are you willing to say on the record that there is no implication that I have been in any way affected by my friendship with Bishop Walsh in the decision that I made overnight?
MR McMAHON: Absolutely, absolutely.
JUDGELOUGHRAN: And are you further…
MR McMAHON: I immediately give your Honour that assurance, without hesitation.
JUDGELOUGHRAN: Very well.
MR McMAHON: And I regret, I certainly did not mean any such implication.
JUDGELOUGHRAN: Very well.
MR McMAHON: I regret that your Honour took it that way.
JUDGELOUGHRAN: Very well.
MR McMAHON: Forgive me, I simply felt that I should alert your Honour to the fact that what your Honour has said about your Honour’s friendship with Bishop Walsh is something which will have to be considered.
JUDGELOUGHRAN: You are perfectly entitled to make any application that you wish, and how long do you want to consider it?
MR McMAHON: Well, it’s a very sensitive matter. I think not before Monday morning, your Honour, I think. I have to consult the Prosecution Service.
JUDGELOUGHRAN: Very well. That’s fine. I’ll print off these judgments and you can have them in a few moments. Thank you.
The court rose. It was Friday afternoon and everyone involved in the trial could spend the weekend reflecting on the days’ dramatic events.
There was plenty to contemplate.
Fr Jim Donaghy
After the weekend recess the legal argument in the Fr James Donaghy trial resumed on Monday morning, January 31 2011.
Judge Loughran and the Public Prosecution Service had time over the weekend to consider the events of the previous Friday.
Whatever contemplation had taken place, there was no let up in the courtroom drama.
Clearly there were tensions over a suggestion from Judge Loughran that the PPS might consider allowing an independent counsel to look at their case notes relating to the disclosure by the prosecution to the defence of an additional statement made by victim B.
Now, on Monday morning, January 31 2011, Judge Loughran began proceedings by apologising unreservedly for any misunderstanding over her request to the PPS to consider finding an independent counsel to look at the prosecution notes.
She also told Mr McMahon that she unhesitatingly withdrew her ‘independent’ comment as she now understood it implied that Mr McMahon was not independent.
This matter settled, Judge Loughran wanted to move on to the next piece of business but Mr McMahon wanted to return to the issue of the judge’s friendship with Bishop Walsh.
Mr McMahon argued that because the accused, Fr Donaghy, was attached to the Down & Connor diocese at a time when Bishop Walsh was in post, the Bishop had previous knowledge of allegations against Fr Donaghy.
It was for this reason that he told Judge Loughran that the Bishop had the potential to be called as a witness.
JUDGELOUGHRAN: ….. Then the outstanding issue then is the issue of litigation privilege.
MR McMAHON: Yes, although I was going to visit the other issue that arose on Friday in relation to your Honour.
JUDGELOUGHRAN: Yes, certainly.
MR McMAHON: I have to say that knowing that your Honour is aware of the triangulation of interests and of the standard that attaches to, the standard which your Honour set out as to apparent bias and so on, and your Honour having declared that if Bishop Walsh were a witness in the case that your Honour would not hear the case.
“I have to say that Bishop Walsh is a potential witness in this case, that there is considerable potential for that situation to arise. I know and I have asked Mr McGrory if I can put this on the record that, the defence certainly intend to call Fr. McManus who carried out an inquiry on behalf of Bishop Walsh into the allegations concerned in this case and reported back to the Bishop on such.
“The papers contain many mentions, many references to Bishop Walsh, I think I counted, if one includes the A statement [A is Fr Patrick McCafferty who gave up his right to anonymity], some 18 references on the papers and there are literally dozens of references to him in the disclosed material. Furthermore, two of the witnesses in the case, the complainant B’s father and uncle had meetings with the Bishop and I anticipate the possibility that the fact and quite possibly the event, in fact I am confident the fact of such will emerge in evidence and I think that there is real potential for the content of such meetings to become a feature in the case.
“Therefore, I have to say and I think that would your Honour give me a moment?
I was going to, well I will address your Honour as to the further complications in the position if the complainant A[Fr McCafferty] were to be allowed to give evidence in this trial, I think that would involve the Bishop even more than with the B complaint.”
JUDGELOUGHRAN: In what way?
MR McMAHON: In that he was so involved in the hearing of matters and coming to a conclusion. I think I would invite your Honour to hear from my learned friend about that.
JUDGELOUGHRAN: What do you say that the Bishop was so involved in what?
MR McMAHON: Well first of all before I leave B the Bishop was so involved in the making of complaints, in the investigation of complaints as to B, that I think that makes him a potential witness.
JUDGELOUGHRAN: Well is he a potential prosecution witness?
MR McMAHON: Yes.
JUDGELOUGHRAN: He is?
MR McMAHON: Yes, I have to say.
JUDGELOUGHRAN: Well if he is a potential prosecution witness then that changes all, I wasn’t aware of that at all.
MR McGRORY: Nor I.
JUDGELOUGHRAN: You are saying he is a potential prosecution witness?
MR McMAHON: I certainly could not exclude that your Honour.
JUDGELOUGHRAN: Well that’s the end of the matter if he is a potential prosecution witness, that’s the first I have heard of that. There is nothing on the papers that suggest to me because I re-read in the light of, the only reference to, I read again the B papers and there is a reference in the statement of evidence of C and I couldn’t conceivably see how he could have been a witness or how just let me see exactly what he says, but if that’s what you are saying then that’s the end of the matter.
But more courtroom discussion followed as Judge Loughran read out from statements relating to meetings between representatives of the Diocese of Down & Connor and the father and uncle of victim B and who along with Fr Pat Buckley also met with Bishop Patrick Walsh.
But Judge Loughran pointed out that that meeting was to deal with a complaint from victim B’s father about an inappropriate relationship between his wife and Jim Donaghy.
Mr McMahon argued that Bishop Walsh had knowledge of allegations against Fr Donaghy and had attended one meeting with relatives of victim B and Fr Pat Buckley.
At one point during this interchange between Mr McMahon and Judge Loughran, Mr McMahon remarked that he should not have raised his voice.
JUDGELOUGHRAN: I have to say that any objective person looking at that material would say that there would be no conceivable grounds on which I, having declared myself as a personal friend of Bishop Walsh, would have had any reason to think that his conduct would be an issue in the trial or that he would be a potential witness. But if you are staying to me Mr McMahon that from the Crown’s point of view he is a potential witness then I withdraw from the case, that is the end of it.
MR McMAHON: I have to say your Honour that there is material in the disclosure material which gives in some detail, gives some detail as to the meeting referred to.
JUDGELOUGHRAN: I am aware of that, I conducted the disclosure exercise and again if there is something, I certainly was aware from the disclosure material in respect of, I can’t put my hand on my heart and say but I am sure you will be able to draw attention to what it is in the disclosure material that leads the Crown to think that Bishop Walsh is a potential witness.
MR McMAHON: I wonder if, you see I am not sure just how much material your Honour has.
JUDGELOUGHRAN: I did all the disclosure so I have all the disclosure material. I was the one that went through the disclosure. But given that this trial is, I mean I am very surprised to hear that the prosecution maybe calling Bishop Walsh, because we are in trial and I would have understood that all the material, any statement of evidence would have been disclosed to the defence at this stage.
MR McMAHON: Your Honour no statement has been taken from him, this is something that happens in the course of trial all the time. That it depends very much on the line of defence developed by my learned friends and we unfortunately, there is little revelation of that in the defence statement. But I have to say that I do see a possible line of defence which would involve very much starting from the Bishop, then Pat Buckley as he is referred to in the papers, the father and the uncle and leading to the allegations.
JUDGELOUGHRAN: What would be the line of defence involving Bishop Walsh that you envisage?
MR McMAHON: Starting from him and from the fact that the thrust of the allegations that were being made to him at the end of ‘02 was simply the wife and developing from that.
JUDGELOUGHRAN: In what way that would involve the potential for Bishop Walsh to be a witness?
MR McMAHON: Because the fact would appear to be that there were concerns expressed about B at the meeting at the end of ‘02 to Bishop Walsh.
JUDGELOUGHRAN: And is that on the disclosure papers?
MR McMAHON: Yes.
JUDGELOUGHRAN: Just let me see where that is in the disclosure papers.
MR McMAHON: I don’t know if your Honour has this material, it is a note, a detailed note by the Bishop himself it would appear.
JUDGELOUGHRAN: Just let me see a copy that of.
MR McMAHON: Dated 14th of the 11th ‘02, it’s handwritten.
MR McGRORY: The disclosure is unpaginated.
JUDGELOUGHRAN: Because it came from various places. The date is the 14th, there is a note the 14th November ‘02 I will have a look at that. I know the Bishop’s handwriting and that’s not the Bishop’s handwriting.
MR McMAHON: Well that is a note of a meeting.
JUDGELOUGHRAN: It maybe a note of a meeting but that’s definitely not the Bishop’s handwriting. Just let me see, I don’t know whose handwriting that is but just let me see where I am, that’s definitely not the Bishop’s handwriting. I’m sure, I don’t know whose that is but categorically not, I know the Bishop’s handwriting very well.
MR McMAHON: Nonetheless, there was a meeting with the Bishop at about that time.
JUDGELOUGHRAN: Well this is not a meeting with the Bishop.
MR McMAHON: But I still do think that there is…
JUDGELOUGHRAN: Just let me read this.
MR McMAHON: Yes, certainly your Honour.
JUDGELOUGHRAN: Yes, it’s clearly that there is a note about.
MR McMAHON: Complaints in relation to…
JUDGELOUGHRAN: But it is definitely not the Bishop. Now I don’t know, you see, “Meet me in my own house in Waterloo Park North”, that’s not where the Bishop would have been living in 2002, the Bishop would have been living in the Bishop’s house.
MR McGRORY: It is Monsignor McCaughan’s house?
JUDGELOUGHRAN: It is? Mr McGrory says that that is Monsignor McCaughan’s house in Waterloo, but definitely in 2002 the Bishop would not have been living in Waterloo Park North, the Bishop would have been living in his house Lisbreen on the Somerton Road. That’s definitely, in so far as, that’s definitely not Bishop Walsh. I will leave you time to think about it further Mr McMahon, I will certainly hear further submissions but if that’s the basis on which you would anticipate the prosecution calling Bishop Walsh that’s not a basis on which he would be called because that is not Bishop Walsh.
MR McMAHON: I have to say your Honour that I still do consider that there is potential, even if it’s not, there was there was a meeting with him.
JUDGELOUGHRAN: You can tell me where that is in the discovery papers because there is nothing in the statements of evidence but if you can find something in the discovery papers as I say, if that’s the basis on which you say Bishop Walsh will be called it can’t be the basis because as I say the meeting was not with Bishop Walsh. I will hand that back but I will give you time to look at the papers further.
MR McMAHON: Well I have to say your Honour, from the public perception the mere fact that your Honour is a personal friend of the Bishop of the Diocese in which the defendant served as a priest at a time relevant to this case.
JUDGELOUGHRAN: Let me get this, from the public perception the mere fact that I am a personal friend of the Bishop.
MR McMAHON: Of the Diocese in which this defendant [Fr Donaghy] served as a priest at the time when these matters came to light, and was personally involved in receipt of complaints and in ordering inquiries into them, means that he is involved in the case.
JUDGELOUGHRAN: You mean the Bishop is involved in the case?
MR McMAHON: Yes.
JUDGELOUGHRAN: Go on ahead and what?
MR McMAHON: And I could not exclude to put it no higher and I am trying to be as balanced and as fair and this is something that I am looking into because it depends not solely on what we know at present but on the way that the case will or could develop.
JUDGELOUGHRAN: For what?
MR McMAHON: That there is potential for him to be a witness in the case.
JUDGELOUGHRAN: And that’s where I want you to elaborate.
MR McMAHON: On the basis that, I think it is inevitable that the defence are going to refer at least to the fact of a meeting with the Bishop, the reporting by B’s family of allegations to the Bishop. I mean, I can’t say how they will put this, but the content of those allegations it seems to me may well become relevant, therefore involving him in a situation at which he was present and I think that alone…
JUDGELOUGHRAN: Just let me get that. The content of those allegations… let me get this. What do you say this would involve Bishop Walsh in?
MR McMAHON: In meetings with the complainant B’s father and uncle.
JUDGELOUGHRAN: Sorry hold on a minute, I am looking at the evidence that is on the papers but I want you to look there is disclosure material.
MR McMAHON: I mean there is no doubt that there was.
JUDGELOUGHRAN: There was a meeting but the meeting according to B’s uncle was that there was no mention of B because he had no concerns about B at the time. I have just read that out.
MR McMAHON: Although that is not, if this is Monsignor McCaughan that’s not what he recorded at the time.
JUDGELOUGHRAN: That’s not Bishop Walsh.
MR McMAHON: No, but that’s his chancellor, that’s the man who is acting on his behalf. He has been asked by the Bishop, why would Monsignor McCaughan I should not raise my voice.
JUDGELOUGHRAN: Well I am looking at what is said in the evidence, that’s here, that I think they said they went… hold on to see what they said.
MR McMAHON: I absolutely, I know your Honour.
There followed discussion about Monsignor McCaughan’s role in hearing allegations about Fr Donaghy on the bishop’s behalf at a meeting in the Monsignor’s house.
JUDGELOUGHRAN: So if that’s Monsignor McCaughan’s house I can see on the basis of the submission that you handed me in the note that you might call Monsignor McCaughan but on what basis would you say that you might call Bishop Walsh as a witness?
MR McMAHON: I have to say your Honour that we have letters from him declaring that he has carried out appropriate inquiries into the matters raised by Pat Buckley as he is called. That the Chancellor, that Monsignor McCaughan carried them out on his behalf. That he is aware of the police having carried out inquiries and again further that he caused inquiries to be made. I have to say…
JUDGELOUGHRAN: Let me see that where he says that he caused other inquiries to be made.
MR McMAHON: That’s a letter of the 19th March ‘04, I mean there are so many of them your Honour.
JUDGELOUGHRAN: Well I want to make sure that I have the full extent of your submissions so that I can take all into account. Just let me see.
The discussion then focused on the fact that victim B never actually made any complaints to the diocese. In fact, victim B made no allegation until 2009.
Allegations were made on his behalf by his uncle and father who, along with Fr Pat Buckley, had a meeting with Bishop Walsh. But when questioned some time later victim B denied those allegations.
It was not until 2009 that victim B decided to go to police and make his allegations.
JUDGELOUGHRAN: Although there were allegations made by his uncle on his behalf but not on his behalf but his father.
MR McGRORY: His father and uncle which he denied.
JUDGELOUGHRAN: Now in that context Mr McMahon, if the position is that that would be, is there anything on the material which suggests that Bishop Walsh could be called, for example, to say well in fact B did make allegations to the diocesan authorities?
MR McMAHON: No.
JUDGELOUGHRAN: There is no evidence in disclosure.
MR McMAHON: No, no, but the Bishop is involved in at least one meeting with the father and the uncle who are Crown witnesses, where there is a statement made, a detailed statement made to the Bishop by D and there is a questionnaire, questions D would like Bishop Walsh to answer.
JUDGELOUGHRAN: Let me see those questions again, I remember that document.
MR McMAHON: I am giving your Honour my own material so.
JUDGELOUGHRAN: You will get it all back, I have a separate file here.
MR McMAHON: I am sure, I won’t be able to address your Honour about it if I have given it to your Honour.
JUDGELOUGHRAN: Let me see it and then I will give it back to you to address me on it.
MR McMAHON: Certainly. Your Honour will see in the questionnaire there is notes on meeting with D, C and Pat Buckley which is the meeting with the Bishop. Then a statement of D to Bishop Patrick Walsh, Lisbreen, and then the questions of D to Bishop Walsh.
JUDGELOUGHRAN: Just let me see those documents, I will take those and read them. Let me read this. Let me just clear other business.
ON RESUMING 12.00:
JUDGELOUGHRAN: (Recording starts)…for Bishop Walsh would have been a witness. If Mr McMahon is telling me on behalf of the Crown that it is a possibility that he will be a witness then I have to recuse myself and I so do. The matter will be listed. I am going to ask the jury keepers to get in touch with the jury to say that they are discharged and the matter will be listed before the recorder at 2 pm this afternoon to plan the way forward and those are the papers Mr McMahon that I have.
MR McMAHON: I am obliged your Honour.
JUDGELOUGHRAN: Thank you.
Judge Loughran’s decision to step aside brought a dramatic close to two dramatic days in court. A new judge would be appointed to conduct a new trial – a trial where there was no severance of the cases and where three survivors of Fr Donaghy’s abuses were brought into court to give evidence against the priest. In the original trial there were only two.