Absence Of Malice (Continued)

at

From left: Lorraine McCabe, Sgt Maurice McCabe, Supt Noel Cunningham and Garda Commissioner Noirin O’Sullivan

Readers may recall the Disclosures Tribunal which is currently being overseen by Supreme Court judge Peter Charleton and is due to resume on September 18.

The tribunal is investigating claims of an orchestrated smear campaign against Garda whistleblower Sgt Maurice McCabe, by former Garda Commissioner Martin Callinan and the current Garda Commissioner Noirin O’Sullivan, as alleged by the former Head of the Garda Press Office Supt Dave Taylor.

Readers will recall how a retrospective allegation was made against Sgt McCabe by a 14-year-old daughter of a Garda colleague of Sgt McCabe’s in 2006 and, following an investigation by then Inspector Noel Cunningham, the DPP directed that no prosecution take place.

The allegation made by the then girl, referred to in the tribunal as Ms D, was that, during a game of hide and seek in 1998, when she was about six, Sgt McCabe pressed against her. Ms D used the word “humping” in her Garda statement.

Ms D made the allegation in a statement to gardai in December 2006, about 11 months after her father, Mr D, lost his position as sergeant in charge of the crime unit and was reverted to regular sergeant, following a report made by Sgt McCabe against Mr D for attending the scene of a suicide after drinking alcohol.

On August 9, 2013, after Ms D received counselling from RIAN counsellor Laura Brophy, during which Ms D repeated the 2006 claim, Ms Brophy unnecessarily re-referred – in so much as it had been previously referred and investigated – the matter to Tusla but conflated the “humping” allegation with an allegation of rape which was wholly unrelated to both Ms D and Sgt McCabe.

This allegation of rape sat in an unallocated Tusla file until May 2014 when it was simultaneously found to be a mistake and yet travelled officially all the way up to the Garda Commissioner Noirin O’Sullivan’s office – even though certain gardai involved in moving it up the chain of command knew about the 2006/2007 allegation and knew that there was no such rape allegation made by Ms D against Sgt McCabe in 2006/2007.

The tribunal has already heard that, within days of the mistake in the Tusla referral being discovered, the then Assistant Commissioner Kieran Kenny received an amended referral but never passed it on to Ms O’Sullivan.

The false rape allegation was still on file in the commissioner’s office until the tribunal began earlier this year.

The Disclosures Tribunal is examining the knowledge and circulation of this rape allegation among senior gardai and members of the media.

However.

As mentioned above, the O’Higgins Commission of Investigation looked at allegations of Garda misconduct in the Cavan-Monaghan area, as laid out by Sgt McCabe.

The commission was established on the recommendation of Sean Guerin SC, when he published his scoping report on May 13, 2014 – just two days before the fake rape allegation was sent to the Garda Commissioner’s office.

The commission heard evidence over 34 days between May 14, 2015 and December 17, 2015 and Mr Justice Kevin O’Higgins’ report was published on May 11, 2016.

During the inquiry, Ms O’Sullivan was represented by Colm Smyth, SC, while Sgt McCabe was represented by Michael McDowell, SC.

In the days following the publication of the report, Michael Clifford, in The Irish Examiner, reported on material from the commission which did not appear in the published report, in relation to the allegation that Sgt McCabe acted out of malice and that evidence of this would be based based on a meeting Sgt McCabe had with two gardai, Supt Noel Cunningham and Sgt Yvonne Martin, in Mullingar in August 2008.

But, as mentioned above, Sgt McCabe was able to produce a recording of this meeting to prove that this was not true.

After the Irish Examiner story, on May 13, 2016, Commissioner O’Sullivan released a statement saying:

“I have been asked to clarify certain matters in relation to the proceedings before the O’Higgins Commission. I am legally precluded from so doing under section 11 of the Commissions of Investigation Act 2004, which provides that it is a criminal offence to disclose or publish any evidence given or the contents of any document produced by a witness…I want to make it clear that I do not, and have never, regarded McCabe as malicious.”

On May 17, 2016, on RTE’s Prime Time, Katie Hannon reported on further material from the O’Higgins commission in May 2015 – when Mr Smyth SC, for the Garda Commissioner, said it was his instructions “to challenge the integrity of Sgt McCabe and his motivation” –  and a later date in November 2015, after Sgt McCabe produced his recording.

These can be read here.

Broadsheet understands that on day two of the commission, Chief Supt Colm Rooney said that Sgt McCabe had sought a meeting with him in 2007 demanding that the DPP’s directions be overturned.

This was before Sgt McCabe answered questions on the same afternoon of Friday, May 15, 2015, in which it became known that Sgt McCabe had been fully aware of the DPP’s directions since April 5, 2007, knew they were strongly in his favour and so had no desire for them to be overturned.

In light of this, on that same Friday afternoon, Mr McDowell SC, for Sgt McCabe, called for documentary evidence to be produced to support the claim that Sgt McCabe wanted the DPP’s directions overturned.

Over the following weekend, and in response to Mr McDowell’s request, a five-page document compiled by the then Chief State Solicitor Eileen Creedon, now a High Court judge, was introduced to the commission on Monday, May 18, 2015 – day three of the commission.

Ms Creedon’s letter stated:

Sergeant McCabe was unhappy with the outcome of the decision of the Director of Public Prosecutions, as he believed that the decision ought to completely exonerated him rather than recording that there was not sufficient evidence to proceed against him.”

“Sergeant McCabe sought as an appointment to see Chief Superintendent Colm Rooney and this was facilitated in June/July 2007. At the meeting Sergeant McCabe expressed anger and annoyance towards the Director of Public Prosecutions. He demanded that Chief Superintendent Rooney communicate with the Director of Public Prosecutions to seek a declaration of his innocence from the Director of Public Prosecutions in relation to the allegation.

“Chief Superintendent Rooney advised Sergeant McCabe of the policy of the Director of Public Prosecutions in dealing with such issues, a policy which Sergeant McCabe was himself professionally aware of. Chief Superintendent Rooney told Sergeant McCabe that he could not seek such a declaration on Sergeant McCabe’s behalf from the Director of Public Prosecutions.”

“Chief Superintendent Rooney pointed out to Sergeant McCabe that from his own experience of dealing with criminal files to the Director of Public Prosecutions he was aware of the Director of Public Prosecutions role to determine if sufficient evidence was available on a file to direct a prosecution”

“Chief Superintendent Rooney pointed out to Sergeant McCabe that it was not the Garda Commissioner’s policy that An Garda Siochana challenge the Director of Public Prosecutions on his decisions.”

“Chief Superintendent Rooney further pointed out to Sergeant McCabe that, as a private citizen, it was open to him to write to the Director of Public Prosecutions if he so wished to ask the declaration he required.”

[In relation to the 2008 meeting in Mullingar] … “Superintendent [Noel] Cunningham was accompanied to this meeting by Sergeant Yvonne Martin. Notes were taken at the meeting and countersigned by Sergeant Martin, and a detailed report of the meeting was prepared by Superintendent Cunningham, and its contents agreed with Sergeant Martin, and forwarded to Chief Superintendent [Colm] Rooney.”

“In the course of this meeting Sergeant McCabe advised Superintendent Cunningham that the only reason he made the complaint against Superintendent [Michael] Clancy was to force him to allow Sergeant McCabe to have the full DPP directions conveyed to him.”

The DPP’s directions, which were issued on April 5, 2007, have been discussed at the Disclosures Tribunal – most notably when Superintendent Noel Cunningham gave evidence.

Readers will recall how, in 2006/2007, Supt Cunningham, then an inspector, carried out the investigation into Ms D’s allegation against Sgt McCabe.

Supt Cunningham was also the guard whom Tusla social worker Keara McGlone wrote a “private and confidential” letter to, on August 15, 2013, in which she asked for a meeting to discuss the aforementioned re-referral from Ms Brophy. The letter went unanswered.

Sgt McCabe and his wife Lorraine have previously stated that, had that meeting taken place, “the falsity of the rape offence allegation would have been immediately apparent to Supt. Cunningham and the claimed “error” would have been discovered immediately.

Supt Cunningham told the tribunal that he made the D family aware of the DPP’s directions on April 24, 2007.

He said he attempted to call Sgt McCabe after meeting with the D family but:

“The phone went to message minder and I informed him that I wanted to meet with him in relation to this. I subsequently started driving back and a message came into my phone, and it’s slightly intriguing because the message came into my phone without the phone actually ringing. And when I checked the phone it was actually a message from Maurice to say that, on legal advice, he wasn’t going to meet me.”

Readers should note that when Ms D, Mr D and Mrs D gave evidence, neither of them were specifically asked about what Supt Cunningham told them of the DPP’s directions.

But, when Ms D gave evidence, while recalling her annoyance over RIAN counsellor Laura Brophy wanting to refer her claim to Tusla, Ms D told the tribunal, she told Ms Brophy:

I said that this case had already been investigated, the DPP came back to say that there was insufficient evidence…”

When Ms Brophy gave evidence to the tribunal she told, during her initial assessment of Ms D in which Ms D made her allegation against Sgt McCabe, Ms Brophy wrote down:

“DPP returned file due to lack of evidence.”

And while Supt Cunningham was giving evidence to the tribunal, and in response to a question from Judge Charleton, Michael McDowell, SC, said Sgt McCabe wasn’t given the real reasons for the DPP’s directions that there be no prosecution – as he knew them to be – and instead was told it was due to “insufficient evidence”.

In addition, the Garda Commissioner Noirin O’Sullivan’s private secretary Frank Walsh also referred to their being “insufficient evidence” against Sgt McCabe when he gave evidence to the tribunal.

Readers will note the term “insufficient evidence” doesn’t appear in the DPP’s directions at all.

In any event.

When Supt Cunningham was asked about the three-week delay – between the date the DPP’s directions were sent to him and the date he went to the D family – Supt Cunningham told the Disclosure Tribunal he had been working in Bailieboro, as acting district officer, and so he had “no business” in Monaghan until his return there on April 24, 2007, at which point he opened his post and was in possession of the DPP’s directions.

He also said: “As soon as I received it, I travelled.”

As mentioned above, Sgt McCabe was verbally briefed of the DPP’s full instructions by the Cavan State Solicitor Rory Hayden on April 5, 2007, but he kept his knowledge of the directions to himself.

The tribunal heard that Sgt McCabe and Supt Cunningham didn’t eventually meet to discuss the DPP’s directions until May 8, 2007 – at which point Sgt McCabe brought a Garda welfare officer with him.

Mr McDowell SC, for Sgt McCabe, suggested to Supt Cunningham that Sgt McCabe brought this guard with him to act as a witness – to which Supt Cunningham replied: “I can only assume. I don’t know.”

Supt Cunningham told the tribunal that when he relayed the DPP’s directions to Sgt McCabe he didn’t specifically read out the DPP’s directions to him.

Instead, he told the tribunal:

“I told him there was no prosecution, I believe it was due to lack of evidence, I didn’t actually take a note of it.”

Under cross-examination from Mr McDowell, he also said:

Absolutely I didn’t read it, because that was the clear directions to us at the time. There was a document came to us, Instructions for Prosecutors, came from the Director’s office, Judge, and it clearly outlined the manner by which we would convey to persons the instructions or the directions of the DPP, and that was that no prosecution, and I think it was essentially that. It had — things have changed since then and there’s clearly an appeal process, etcetera, but at that time, Judge, the instructions were very clear. And I complied with the instructions, Judge.“

However.

The tribunal heard that, after two incidents in which Sgt McCabe was confronted by members of the D family, Sgt McCabe wrote a letter to Superintendent Michael Clancy, dated February 25, 2008, in which Sgt McCabe recalled his meeting with Supt Cunningham in May 2007, when Supt Cunningham told him of the DPP’s directions.

Sgt McCabe wrote:

“Inspector Cunningham informed me that the DPP determined that there was no offence disclosed whatsoever and that I was exonerated.”

“When asked by myself if the other party were given the same as what I was told, Inspector Cunningham said ‘No, how could he?’ He would not tell me any other details. It did concern me that they [D family] were not told that there was no offence disclosed and that I was exonerated, but I was willing to let it go.”

Mícheál O’Higgins SC, for the Garda Commissioner, read out these sections of the letter during the Disclosures Tribunal, while Mr McDowell SC, for Sgt McCabe, told the tribunal that Sgt McCabe wrote this letter as he was requested to do so by Supt Clancy, and that, in it, Sgt McCabe also stated he didn’t want any prosecutions in relation to the incidents involving the D family.

So.

To recap.

Sgt McCabe was verbally briefed of the DPP’s full and seemingly unequivocal directions by the then Cavan State Solicitor Rory Hayden on April 5, 2007.

And the senior counsel for the Garda Commissioner told the Disclosures Tribunal that Supt Cunningham told Sgt McCabe he was exonerated on May 8, 2007.

So, how could the Chief State Solicitor Eileen Creedon, on behalf of the Garda Commissioner Noirin O’Sullivan, claim at the O’Higgins Commission of Investigation that Sgt McCabe “was unhappy with the outcome of the decision of the Director of Public Prosecutions, as he believed that the decision ought to completely exonerated him rather than recording that there was not sufficient evidence to proceed against him”?

How could she claim that Sgt McCabe “expressed anger and annoyance towards the Director of Public Prosecutions”?

And how could she claim “He demanded that Chief Superintendent Rooney communicate with the Director of Public Prosecutions to seek a declaration of his innocence”?

Readers should note the following exchanges from the O’Higgins Commission of Investigation:

From Friday, May 15, 2015:

Rooney: “I would have known Sergeant McCabe for 20 years. I first got now he know him as a guard in 1994. I would have been friendly with him and I would have known him right up to I retired in December 2011.”

Smyth: “Did your friendship continue?”

Rooney: I haven’t had any contact with him since I retired, but there is nothing unusual about that, i haven’t had much contact with anybody.”

Smyth: “But before you retired did have you contact with him?”

Rooney: “Yeah, Sergeant McCabe came to see me, sought an appointment to come and see me in my office in Monaghan. He contacted my office and made an appointment and I saw him. He came to me. He was very angry, he was very annoyed and he was very upset.”

O’Higgins: “When was this?”

Rooney: “It was in late 2006.”

O’Higgins: “Very angry.”

Smyth: “Do you think in December or November, was it late in 2006, was it winter time?”

Rooney: “No, I am sorry, Judge it was 2007.”

Smyth: “Was it late 2007?

Rooney: ” It was probably late 2007, yes, definitely. He came to my office and he was in that state and he demanded of me that I write to the Director of Public Prosecutions and I challenge a decision that Director of Public Prosecutions had made in respect of him.”

Gillane: “I don’t mean to cut across the witness but I think just in relation to this matter, unless the parties have a different view, I think it’s evidence concerning a matter that the Commission isn’t directed to investigate, whether it’s relevant or not is a matter for the parties.”

O’Higgins: “Yes.”

Smyth: “Can I say Judge, perhaps you should hear us since this is a private hearing. The relevance may be in context of motivation for certain facts or for certain matters or, indeed, credibility in relation to the certain matters.”

McDowell: “Judge I wonder could I be heard?”

O’Higgins: “The matter is delicat. I will rise for 10 minutes. I..”

McDowell: “I want Mr Smyth to inform, since this process is happening now in front of my client, I want Mr Smyth to formally inform you, Judge, that he is asking these questions on the firm instructions of the Commissioners and that he knows the answers that he is seeking from this witness and that on his view as a professional Senior Counsel it is relevant to the module that we are dealing with now. I want that clarified because I will deal with it…”

From Monday, May 18, 2015:

Mr McDowell, SC for Sgt McCabe, raised Ms Creedon’s five-page letter.

McDowell: “Sorry Judge, there is one other point before you ask Mr Smyth to respond. If allegations are going to be made on behalf of the Commissioner, I will require the Commissioner personally to be available for me for cross-examination and I don’t think she will enjoy the experience.

O’Higgins: “That’s not for me to comment on. But in relation to this module I will have to make certain findings and on the face of it, Mr Smyth, it would seem to me that the matters contained in this document are irrelevant to any findings that I might have to make in this module. Could you address me on that?”

Smyth: “Well thus far, Judge, you are hearing the evidence of Colm Rooney, ex-Chief Superintendent Colm Rooney, he will be giving evidence in other modules, I assume related modules. I am laying the ground for, in this module and other modules, for conversation that Sergeant McCabe had with ex-Chief Superintendent Rooney and in particular without saying too much to offend the sensitivities of Mr McDowell in relation to this-”

O’Higgins: “Well it is not the sensitivities of Mr McDowell.”

Smyth: “He just wished me to say too much in front of 40 people, that’s what he has indicated.”

O’Higgins: “I want to know how the contents of this document [Ms Creedon’s five-page letter] are relevant.”

Smyth: “It is relevant in this way, Judge, because I say that Sergeant McCabe was motivated to do certain things, to make certain allegations based on the fact that he required clarification from the DPP on certain matters touching on his situation.”

O’Higgins: “That much I understand -”

Smyth: “And there was a meeting between – ”

O’Higgins: “That much I understand because that has already been – what I want to know is how the contents of this document are relevant to my inquiry into this particular module.”

Smyth: “Because he [Sgt McCabe] made complaints directed to Superintendent Clancy. There was a letter of 28th February 2008. He told inspector or Superintendent Cunningham who be one of the next witnesses in this module that he was withdrawing. He only made those complaints on the basis that he wished Superintendent Clancy to seek further clarification from the DPP.”

O’Higgins: “Well that doesn’t seem to address the relevance of contents of this document to the inquiry that I have to conduct into this module.”

Smyth: “It does, Judge, because the complaints he was making were complaints about the working and about the administration and about the management and about issues touching on probationer Garda in Bailieborough station and are relevant to this module as much as they are relevant to other modules.”

It flows right through all modules, the motivation and the credibility of Sergeant McCabe in making the allegations he made. And he withdrew, he was prepared to – the only reason we have Yvonne apparently Sergeant Yvonne Martin who is a witness to a statement that he made. The only reason he made the allegations he made on 28th February in a letter which was sent to Superintendent Clancy ultimately was that he was making those allegations to force the hand of Superintendent Clancy to seek further clarification from the DPP.”

O’Higgins: “Very good.”

Smyth: “When he knew that was clearly and patently wrong.”

O’Higgins: “Well it seems to me the contents of this document are irrelevant to any matters that I have to inquire into in this module in relation to the question motivation, the motivation I am not certain that it can be excluded as a background consideration.”

I will allow you to establish this much and no more, that Sergeant McCabe had a real or perceived grievance against somebody. Full stop, no more and the contents of this document I am ruling are irrelevant to this module.”

Smyth: “Judge I am permitted to pursue with this witness the conversation he had with Sergeant McCabe.”

O’Higgins: “No, you are permitted to establish, although I think it has been established already, that Sergeant McCabe had a grievance real or perceived in arising out of a conversation with Superintendent, Chief Superintendent Rooney full stop. His motivation, as I say, is only peripheral, very peripheral, but his motivation you are suggesting was out of a grievance he had. The details of that grievance do not appear to me to be relevant.”

Smyth: “No I don’t intend to go into the details of the background but I need to establish that there was a grievance of it, it has to be sanitised, it has to be sanitised in some shape or form. I don’t want to parade all of background information.”

O’Higgins: “I will allow to you establish that he had a grievance, real or perceived, and no further so the contents of this document are irrelevant for this module. That’s my ruling on that.”

Later

McDowell: “We also have Martin who has just been mentioned here present in the room.”

Mr Justice O’Higgins: “Who is that?”

Gillane: “Garda Martin.”

McDowell: “He said she would give evidence. I don’t know – it has just been stated by Mr Smyth that Garda Yvonne Martin would give evidence of a certain kind of.”

Mr Justice O’Higgins: “Who is she?”

Mr Gillane: “Just for assistance, Garda Martin is referred to in the document that you ruled as inadmissable and under no circumstances should she be in the room prior to such a ruling.”

Smyth: “Garda Martin is not here.”

O’Higgins: “Very good. If the presence of Garda Martin as a result of this ruling is not necessary she shouldn’t be here.”

Smyth: “Could I just have five minutes, Judge, to take instructions.”

O’Higgins: “Yes of course you can. Five minutes then.”

Following a short adjournment 

Smyth: “I reserve my position, Judge, in relation to any adverse findings that may be made against the Commissioner in this module. Findings that we say, perhaps, wouldn’t have been made if this evidence that we set out in this letter had been adduced.”

O’Higgins: “Very good. I have ruled as I have ruled and the question of motivation seems to me to be very peripheral and I will allow you to do exactly what I said and no more. Thanks.”

Later – Chief Superintendent Colm Rooney is continued to be questioned by Colm Smyth

Mr Justice O’Higgins: “Thank you very much Chief Superintendent you are already sworn.”

Smyth: “Chief Superintendent Rooney. You had a conversation with Sergeant McCabe?”

Rooney: “I had, Judge, June/July.”

Mr Justice O’Higgins: “You are aware of the ruling of the court and the parameters of it.”

Rooney: “Yes, judge. In June/July 2007 Sergeant McCabe sought a meeting with me and I facilitated him in that regard and I saw him at my office in Monaghan Station.”

Smyth: “Arising out of that did you get the distinct understanding that he had a grievance.”

Rooney: “I did, Judge.”

Also on Monday, May 18, 2015, the O’Higgins Commission of Investigation heard the following:

McDowell: “….with respect to Mr Smyth he is trying to start a sort of civil war in this Commission on Sergeant McCabe’s motivations instead of sticking to the issue which is what happened and whether, if he really wants to put it, whether the views expressed by Sergeant McCabe are correct or incorrect, not why did he have such a view.”

O’Higgins: “Mr McDowell I cannot disagree with much of what you said. The matter was canvassed on Friday as well. It was decided that in relation to the question of motivation that it wasn’t entirely irrelevant but it was peripheral and perhaps it might be more germane, might be more germane to another module rather than this.”

“I think it is fair enough of you to say that this inquiry here, you made the point, I think several times, in relation to the question of credibility doesn’t arise where there is no conflict of fact, and I have accepted that point several times as well. I think, Mr Smyth, in relation to the question of credibility it only arises where there is a conflict. I think Mr McDowell is correct when he says in relation to this particular module, at least, the conflict seems to be rather limited, it is in relation to, A, which you have canvassed already, and obviously can canvas more with this witness about the responsibility of the Sergeant in Charge as opposed to the Unit Sergeant for help and supervision of a probationer that is clearly at issue in the case; also the characterisation of the behaviour of Garda McCarthy as being disgraceful and the other issues complained.

I am not precluding you, as I said, from raising issues in relation to credibility based on your assertion that there is bad and improper motivation for this, I am not precluding you from making that but I would repeat that in the conflict the question of credibility in relation to this particular modules seems only to arise in relation to conflict and the conflict in relation facts seem to be very limited, it seems to be more a degree of would you agree with an emphasis rather than facts.”

Smyth: “Judge, I intend to move very quickly off this, I have two other questions and I think they are relevant.”

O’Higgins: “Very good.”

Smyth: “I don’t want to waste more time on it. Just very briefly two questions I want to ask you, Sergeant McCabe, the first one is on 26th February 2008, you sent a letter to Superintendent Clancy containing a number of complaints that you had, is that correct?

McCabe: “Yeah.”

Smyth: “One matter I want to ask you again, just arising, finally, out of that, I think that Superintendent Cunningham met you for the purpose of discussing that, is that correct?

McCabe: “He met me on the last day that I was Sergeant in Charge.”

Smyth: “Sergeant in Charge in Bailieborough?”

McCabe: “Which was 19th March 2008.”

Smyth: “He has 25th August 2008 you met?”

McCabe: “Sorry we met in Mullingar.”

Smyth: “He met you in Mullingar on 25th August 2008?”

McCabe: “Yes.”

Smyth: “This is an issue of credibility I want to put to you?

McCabe: “Okay.”

Smyth: “There was a meeting there in Mullingar Garda Station and that meeting was the Sergeant Yvonne Martin, is that correct?

McCabe: “That is correct.”

Smyth: “I think there were notes taken at that meeting?”

McCabe: “There was, by each side.”

Smyth: “A detailed reported was prepared by Superintendent Cunningham, there is no dispute about that?”

McCabe: “There is, I didn’t see it, he has given his version.”

Smyth: “All right. It was forwarded, that report, to Superintendent Rooney, that is the issue I want to ask you about?”

McCabe: “Yeah.”

Smyth: “In the course of that meeting, Sergeant, you advised Superintendent Cunningham that the only reason you made a complaint against Superintendent Clancy was to force him to allow you to have the full authority directions conveyed to you?

McCabe: “That is absolutely false.”

Smyth: “Right?”

McCabe: “Absolutely Judge.”

O’Higgins: “The only reason.”

Smyth: “The only reason, and this will be the evidence of Superintendent Cunninhgam, the only reason that you wrote those list of complaints for Superintendent Clancy, do you understand, that you made the complaints about Superintendent Clancy was that you wanted to put pressure on Superintendent Clancy to get the full directions from the authority conveyed to you.”

McCabe: “That is absolutely false. Absolutely.”

Smyth: “Fair enough?”

McCabe: “I have clear recollection of that meeting.”

Then on Tuesday, May 19, 2015, Chief Superintendent Colm Rooney returned to give evidence at the commission about a meeting he had with Sgt McCabe in Chief Supt Rooney’s office at Monaghan Garda Station in 2007.

It should be noted that it was Chief Superintendent Rooney who assigned Supt Noel Cunningham to investigate Ms D’s allegation in 2007.

Under questioning from Colm Smyth SC, for the Garda Commissioner, Chief Supt Rooney told Judge O’Higgins:

“My understanding of what he [Sgt McCabe] said to me, Judge, was that he asked me to communicate with the Director of Public Prosecutions to seek a declaration of his innocence from the Director of Public Prosecutions in relation to the allegation that was made against him.”

Mr Smyth SC and Chief Supt Rooney had the following exchange:

Smyth: “All right. Well you don’t have to tell us anything about the allegation or any details about it but just say what his request was and what did you say to him?”

Rooney: “I explained to him what the policy was in relation to making contact with the DPP on issues of this matter.”

Smyth: “For completeness could you say what that policy was, what you understood it to be?”

Rooney: “I advised Sergeant McCabe of the policy of the Director of Public Prosecutions in dealing with such issues, a policy which I would have believed that Sergeant McCabe was himself fully aware of. I told Sergeant McCabe that I could not seek such a declaration on his behalf from the Director of Public Prosecutions.”

Smyth: “Were you aware at that stage, did he indicate to you that he had been exonerated by the authority?”

Rooney: “Not to my recollection, Judge, but I cannot say for certain.”

Smyth: “So what was his attitude to your decision not to contact the DPP?”

Mr Justice O’Higgins: “Sorry you must have known, you must have known that he knew. What would be the point of him looking for a declaration if he wasn’t already aware that there was no prosecution going to happen?”

Rooney: “Yes, as I understood from what he was saying to me, Judge, was that he wanted the DPP to specifically say he was innocent.”

Mr Justice O’Higgins: “Yes.”

Rooney: “Rather than…”

Mr Justice O’Higgins: “But you were saying you weren’t sure whether he was aware that he had been exonerated at that stage. No?

Rooney: “Oh no, the question was did he discuss with me.”

Smyth: “No, no, in actual fact that’s not the question I asked you.”

Rooney: “Sorry.”

Smyth: “I said, did you know at that stage, lest there be any doubt this, did you know at that stage that he had been exonerated?”

Rooney: “I would imagine I did, Judge, yeah.”

Smyth: “So what was his response to the fact that you wouldn’t make this request to the authority?”

Rooney: “He started to tell me that I could write to the DPP and that I should write to the Director to seek the request that he had made. And he wasn’t happy with me when I wasn’t doing that for him.”

Smyth: “How did you know he wasn’t happy with that, I mean did he say anything?”

Rooney: “Well by his mannerisms towards me.”

Smyth: “Would you just elaborate on the mannerisms towards you, what do you mean by mannerism?”

Rooney: “Well I would have known Sergeant McCabe for a long time and my knowledge of him was that he was very friendly, honourable, decent person. That day he wasn’t himself and he spoke to me in a demanding way that I didn’t have experience of him previously.”

Smyth: “He was angry, in other words?

Rooney: “That would be right.

Michael McDowell SC, for Sgt McCabe, then questioned Chief Supt Rooney:

McDowell: “Firstly Sergeant McCabe says and instructs me that the meeting he had with you was in May of 2007, in the April/May period of 2007 and not in June or July. That’s the first thing. So I want to put that to you.”

Rooney: “Well, Judge, as I said, I cannot definitively say when the meeting took place. If Sergeant McCabe says that it was in May 2007, I certainly have no reason to disagree with Sergeant McCabe.”

McDowell: “Secondly, he will say that at that time he knew, and he said this in evidence yesterday, he knew the substance of the DPP’s direction?”

Rooney: “Yes, Judge, I accept that.”

McDowell: “And he will say that the only issue that he complained to you about was that this direction, having been given and he being aware of it informally through the State Solicitor, though he never mentioned how he was aware of it to you, that Inspector Cunningham had sat on it for three weeks?”

Rooney: “No, definitely not, Judge, that was not what that meeting was about.

Mr Justice O’Higgins: “Was that mentioned at the meeting?”

Rooney: “Sorry?”

Mr Justice O’Higgins: “Was that mentioned at the meeting?”

Rooney: “No. Well I have absolutely no recollection that it was a complaint, if you like, from Sergeant McCabe in relation to Inspector Cunningham, because if that was his complaint, I would certainly have acted on it by issuing a written report to Inspector Cunningham’s superintendent to sort out the matter.

Mr McDowell: “I have listened carefully to your evidence given today, Chief Superintendent Rooney, and I note that you haven’t said that at the meeting Sergeant McCabe expressed anger and annoyance towards the Director of Public Prosecutions. That’s in the letter [from Eileen Creedon] we received.”

Rooney: “Yes.”

McDowell: “I have got to suggest to you that he never expressed annoyance or anger towards the DPP and had no reason to?

Rooney: “No, he certainly didn’t use those words to me, Judge, they are my interpretation of what Sergeant McCabe was saying to me. From what he was saying to me, I took it that he was angry with the Director of Public Prosecutions. That may not -”

McDowell: “Sorry, let’s stop for a second there. We were given a letter yesterday [Monday, May 18, 2015] stating that he had sought a meeting with you in June or July, which was facilitated, and it can only be on the account you gave to the Chief State Solicitor:

At the meeting Sergeant McCabe expressed anger and annoyance towards the Director of Public Prosecutions.

“Now either that’s true or it’s not true. Is it true?

Rooney: “What I said, Judge, is he did not use those words to me. It was my interpretation of form of the conversation, that he appeared to me to be annoyed with the Director of Public Prosecutions. That was my interpretation of what was coming across to me. That may not be what Sergeant McCabe actually meant.”

Mr Justice O’Higgins: “Forget about what words he used. Did he express anger and annoyance at the DPP or did you just infer that he was angry?”

Rooney: “I would have inferred rather that than he actually saying it, Judge.”

McDowell: “What’s more, he denies emphatically that he asked you or demanded of you that you communicated with the Director of Public Prosecutions to seek a declaration of his innocence.”

Rooney: “Yes, well that was my interpretation, Judge of what he was saying to me.”

McDowell: “Hold on a second. What did he exactly say to you, because you are drawing inferences from his facial expressions now to say that he was angry with the DPP, and now you are suggesting that he was seeking a declaration demanding, you used the phrase in this letter, that you seek a declaration of his innocence from the DPP.”

Rooney: “What he was saying-”

McDowell: “Did he ever use any words along those lines to you, I demanded that you write to the DPP and get a declaration of my innocence?”

Rooney: “Well, to say that he says I demand, he didn’t use that language. What he was saying to me, Judge, was, you can write – I was saying, I cannot do what you are asking me to do, and he saying, you can do it, I want you to do it. Now to me that’s making a demand of me to do something, and that’s what I was expressing in the report that I was writing.”

Mr Justice O’Higgins: “I am having a little bit of difficulty understanding that. You said it was your interpretation. I mean, again, forget about what words he used. If he wanted you to write to the DPP, no matter what way he said it, did he say it and if he said it, why was that only your interpretation?”

Rooney: “He absolutely asked me to write to the DPP.”

Mr Justice O’Higgins: “And why do you say then that was your interpretation of what he said?”

Rooney: “No, maybe – I am sorry, Judge, if I didn’t explain it properly.”

Mr Justice O’Higgins: “I am just quoting what you said, it was your interpretation of what-

Rooney: “No, he absolutely asked me to write to the DPP but he was further saying to me – when I said I cannot write to the DPP, he was saying, yes, you can and asking me to do it. Those are the circumstances in relation it.”

McDowell: “I have to suggest to you that that is not the case. I am also putting to you that the words seeking a declaration of innocence or words to that effect were never exchanged between you at this meeting in May.”

Rooney: “Absolutely, Judge, he asked me to communicate with the DPP because he wanted, what I understood from him, the DPP to say that he was innocent. It could well be, Judge, that what he meant was that he wanted the DPP’s directions to show to somebody else’s innocence.”

McDowell: “So which is it? I mean paragraph 16 of this letter is so clear, you say that he expressed anger and annoyance towards the Director of Public Prosecutions, he demanded that you communicate with the DPP. Now you are saying that he wanted to be in a position to show the DPP’s wording to somebody else, is that it?

Rooney: “That’s what I’m saying, judge. I can only tell you what my interpretation of the meeting I had with Sergeant McCabe was. There is no question about it, he asked me to write to the Director of Public Prosecutions to, if you like, establish his innocence or to show his innocence.”

McDowell: “Did you take a note of that meeting?

Rooney: “No, I didn’t, Judge.”

McDowell: “Do you have any contemporary memorandum of that meeting?”

Rooney: “I have none at all, Judge. When I finished that meeting with Sergeant McCabe that was the end of the matter and I never heard anything more about that until 20 months later, when the Byrne/McGinn team asked me for an account of that meeting, and it is my recollection 20 months later as to what took place at the meeting.”

McDowell: “I am suggesting to you that at no pint did he express any anger toward the DPP, nor did he seek any declaration or that a declaration be sought from the DPP at all. I am putting that to you?”

Rooney: “Well I don’t accept that, Judge. I was in my office, I got a phone call from Sergeant McCabe to come to me and I facilitated that. I am merely recounting what the contents of the meeting with Sergeant McCabe was.”

McDowell: “Do you accept that paragraph 16 of that letter that was sent yesterday is wholly inaccurate?”

Rooney: “No, I do not accept, Judge, at all that it is wholly inaccurate.”

McDowell: “Why did you arrange for this Commission to be told:

At the meeting Sergeant McCabe expressed anger and annoyance towards the Director of Public Prosecutions.

“Why did you cause that to be written down over the last weekend?

Rooney: “I have already explained, Judge, the reasoning behind that.”

McDowell: “That is what you saw from his facial expression he was unhappy?”

Rooney: “Absolutely, when he was discussing the DPP with me. That’s my interpretation down, not Sergeant McCabe’s. I was trying to convey in my language what took place at the meeting with Sergeant McCabe. They are not Sergeant McCabe’s words, they are my words to describe the meeting.”

McDowell: “I have simply got to put it to you, and I am not going to waste the Commission’s time any further, that did not take place, he never expressed any anger towards the DPP. He, at the time, knew of the DPP’s exoneration and the terms on which it had been made and that he was expressing dissatisfaction with the fact that this was not brought to his attention for a period of three weeks, when he was in the company of Inspector Cunningham, who knew about this material and never mentioned it to him?

Rooney: “Absolutely Judge, I do not accept that.”

McDowell: “You do accept that Inspector Cunningham never told him for a period of approximately three weeks that he had been exonerated?

Rooney: “That’s what I have heard, yes.’

McDowell: “You accept that?”

Rooney: “Yes I do.”

McDowell: “Do you think that that was a reasonable way to deal with a sergeant who was obviously somebody entitled to know what had become of a complaint in respect of him?

Rooney: “Judge, I think it’s unfair for Superintendent Cunningham to explain that himself. I can’t tell you about the circumstances in relation to how Superintendent Cunningham dealt with that. He is going to give evidence himself in relation to that matter.

McDowell: ” I will leave it at that then, Judge.”

Readers will recall a statement which was released by Sgt McCabe and his wife Lorraine earlier this year.

It said:

Our experience of the O’Higgins Commission of Investigation is too fresh in our minds to allow for a repetition. Although that Commission investigated a number of serious instances of malpractice in the policing function in Bailieboro and upheld Maurice’s complaints in respect of all of them, the public has never been made aware that, throughout the proceedings before that Commission, Maurice, at the hands of the legal team representing the current Commissioner, was cast in the role of culprit and/or defendant, and as a person making those complaints in bad faith and without cause.

“When challenged in that respect, that legal team sought and obtained confirmation from the present Commissioner that they did so on her personal instructions.

“Because the 2004 Act prohibits under pain of criminal law the publication of the actual evidence tendered to such Commissions, the public has little or no appreciation of what was done, and attempted to be done, to Maurice in the course of its hearings.

“For example, against the background of the current Tusla controversy, the entirely false allegation made of sexual abuse in 2006 against Maurice was repeatedly the subject of attempts at introduction in the proceedings for the purpose of discrediting his motives and testimony.

“The entire transcript of that Commission (to which we still have access) is also in the possession of the Minister for Justice and Equality and the foregoing comments can easily be verified by inspecting same.”

Indeed.

Previously: How Did He Get Here?

I Can Categorically Say There Is Nothing To See Here