From left: Michael McDowell SC, Supt Noel Cunningham, Sgt Maurice McCabe
The Disclosures Tribunal will hear submissions tomorrow from the legal representatives for the various parties in relation to the evidence it heard last summer.
This refers to the false rape allegation that ended up being sent to the then Garda Commissioner’s office in May 2014 and remained there until early last year (more of this below).
But what of the evidence we heard more recently, from January 12 to February 8 in respect of the tribunal’s term of reference E:
“To investigate whether the false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by Commissioner O’Sullivan to discredit Sergeant Maurice McCabe at the Commission of Investigation into Certain Matters in the Cavan/Monaghan district under the Chairmanship of Mr Justice Kevin O’Higgins.”
Readers will recall how the tribunal has been looking at what happened in terms of the then Garda Commissioner Noirin O’Sullivan’s legal strategy during the O’Higgins Commission of Investigation between May 2015 and December 2015.
This commission, overseen by Judge Kevin O’Higgins, was set up to look at about a dozen Garda investigations in the Cavan/Monaghan area between 2007 and 2010, following complaints made by Sgt Maurice McCabe about these investigations.
Readers may wish to note the following key events or incidents ahead of and during the O’Higgins Commission of Investigation in May 2015…
Involving solicitor Annemarie Ryan, of the Chief State Solicitor’s office, Chief Supt Fergus Healy, who was the then Garda Commissioner Noirin O’Sullivan’s liaison officer at the O’Higgins Commission of Investigation, Ms O’Sullivan, retired Chief Supt Colm Rooney, Supt Noel Cunningham, Colm Smyth SC, Michael McNamee BL, and Garret Byrne BL…
Monday, May 11, 2015: The consultation involving Chief Supt Fergus Healy and the legal team – for Ms O’Sullivan, retired Chief Supt Rooney and Supt Cunningham – Mr Smyth, Mr McNamee and Mr Byrne. Ms Ryan was also present.
Tuesday and Wednesday, May 12 and 13, 2015: The consultations involving Chief Supt Rooney and Supt Noel Cunningham with the legal team and which were also attended by Chief Supt Healy. Ms Ryan was also present.
Thursday, May 14, 2015: Chief Supt Healy’s obtaining of instructions from Commissioner O’Sullivan in a phone call.
Friday, May 15, 2015: The evidence given to the commission by retired Chief Supt Colm Rooney, when questioned by his and Commissioner O’Sullivan’s senior counsel Colm Smyth, which prompted a legal row and gave rise to Chief Supt Healy seeking Ms O’Sullivan to reconfirm her instructions – that her legal team was to challenge the motivation and credibility of Sgt McCabe.
At the time, Mr Smyth also said his instructions were to challenge Sgt McCabe’s integrity but he later, in November 2015, told the commission this was an error on his part.
The call by Judge O’Higgins for Ms O’Sullivan’s legal team to prepare a document, on her behalf, outlining what claims they were preparing to put to Sgt McCabe as, Judge O’Higgins said, “nobody is going to be ambushed”.
Saturday and Sunday, May 16/17, 2015: The preparation of that document by legal counsel and circulated among and contributed to by retired Chief Supt Rooney and Supt Cunningham. This ended up being the letter from the Chief State Solicitor’s Office.
Monday, May 18, 2015: The production of this letter – which contained significant errors referred to in the tribunal as “factual inaccuracies” by Ms O’Sullivan and “gross falsehoods” by Michael McDowell SC, for Sgt McCabe – to the commission and Sgt McCabe’s legal team.
Perhaps the most grievous error in this letter was the claim that Sgt McCabe had informed Supt Cunningham, at a meeting in Mullingar in August 2008, that the “only reason” he made a complaint against Superintendent Michael Clancy “was to force him to allow Sergeant McCabe to have the full DPP directions conveyed to him”.
This is in respect of the DPP directions related to the Ms D case (see below)
The letter stated:
“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 reality is Sgt McCabe had prepared a report for Supt Clancy – at Supt Clancy’s request after he had been confronted by members of the D family in public in October 2007.
It is still not clear how this wrongful allegation – proven false by a tape recording of the meeting subsequently given to the commission by Sgt McCabe – ended up being committed in writing in this document of May 18, 2015.
It also was later repeated in written submissions made to the commission in June 2015.
In respect of this blackmail claim, Colm Smyth SC has told the tribunal:
“…we weren’t given the correct version, and there was a clear misunderstanding – not so much a misunderstanding, there were clearly wrong instructions.”
He also told the tribunal:
“Can I say this: it was remiss of me not to apologise to Sergeant McCabe in relation to that matter. It should have been done.”
When Supt Cunningham gave evidence, he also conceded this allegation was wrong but explained he simply hadn’t spotted it.
“I’m embarrassed by the mistake, because I would be usually very careful in everything I did, and I’m embarrassed if it has in any way caused any distress to Sergeant McCabe, because it certainly was never any intention to do that, because it was, Judge, a mistake, nothing more, nothing less, Judge.”
That Chief State Solicitor’s letter – mistakes and all – was handed into the commission and to Sgt McCabe’s legal team on the morning of Monday, May 18.
And Mr Smyth, apparently not realising he was mistaken, mentioned the blackmail allegation twice on that Monday during the day’s hearings and included mention of it in respect of this meeting Sgt McCabe had with Supt Cunningham, who was accompanied by Sgt Yvonne Martin, in Mullingar in August 2008.
On the morning of May 18, 2015, at around 10.50am, Mr Smyth first mentioned it – soon after Mr McDowell referred to the Chief State Solicitor’s letter as “a conflation of falsehoods, evasions and untruths”.
“…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 allegation she made on 28th of 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.”
Later, at around 4pm, when Sgt McCabe was being cross-examined, Mr Smyth raised the blackmail allegation again when they had this exchange:
Smyth: “There was a meeting there in Mullingar Garda Station and that meeting was the sergeant — and at that meeting was 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 report 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, this is the issue I want to ask you about.”
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.”
McCabe: “Absolutely, Judge.”
Smyth: “The only reason, and this will be the evidence of Superintendent Cunningham, 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 a clear recollection of that meeting…”
Sgt McCabe had more than a recollection.
He had a tape recording of the meeting which proved the allegation was false.
The tribunal has since heard what may be deemed to be attempts to downplay the significance of Sgt McCabe’s tape.
Solicitor Annemarie Ryan claims she gave the commission and Sgt McCabe’s counsel Supt Cunningham’s report of this Mullingar meeting – which matches the tape – on the morning of May 18, along with the Chief State Solicitor’s letter.
But Mr McDowell has categorically told the tribunal this didn’t happen.
In addition, the tribunal has heard that, according to the transcript of the O’Higgins Commission of Investigation, on May 19, 2015, Supt Noel Cunningham was stood down from giving evidence that day as his report wasn’t given to Sgt McCabe’s counsel at that point.
In any case…
The false blackmail allegation was later repeated in submissions which were submitted in June, saying:
“Sergeant McCabe then made a series of complaints against other officers in Bailieboro station, including Superintendent Clancy, against whom he alleged a lack of support. Chief Superintendent Rooney appointed Superintendent Cunningham to investigate these complaints. Superintendent Cunningham attempted to meet Sergeant McCabe to discuss the complaints and finally did so on the 25th August 2008. On this occasion, Superintendent Cunningham was accompanied by Sergeant Yvonne Martin.”
“It is understood that Superintendent Cunningham and Sergeant Martin will give evidence that Sergeant McCabe said at this meeting that the complaint which he had made was a bid by him to have the full DPP directions conveyed to him and to the complaining party. This is recorded in a report of the meeting prepared jointly by Sergeant Martin and Superintendent Cunningham.”
It’s curious the mistake was repeated if Supt Cunningham’s report was already in the possession of a member of his own legal team.
Furthermore, Supt Cunningham has also given evidence that he submitted his report to solicitor Annemarie Ryan a second time, ahead of the submissions being entered, and yet the mistake was committed to writing a second time.
And worse, Michael McNamee BL told the tribunal he and Colm Smyth SC and Gareth Byrne BL were all taken totally by surprise on June 24 when they learned of the blackmail allegation error.
And, to make things even more confusing, Judge Peter Charleton has told the tribunal that Sgt Martin wrote her own report of the Mullingar meeting in 2008 which, he said, “everybody accepts is accurate”.
And he has also told the tribunal that the idea put forward in the submissions – that Sgt Martin was somehow going to corroborate whatever evidence Supt Cunningham was going to give – Sgt Martin “never said any such thing”.
But perhaps the following is even more significant…
The tribunal has repeatedly heard that if the mistaken or false allegation of blackmail put by Mr Smyth to Sgt McCabe on May 18, 2015, had been identified by people in the room at that point (namely Supt Cunningham) – then perhaps the matter would have been cleared up.
Last week, at the tribunal, Supt Cunningham was specifically asked if he heard Mr Smyth putting the false allegation to Sgt McCabe and he said he couldn’t recall if he had heard it clearly.
“I can’t say, Judge, I was hanging on every word, and I can’t say, Judge, that I was as clear as I am now reading that transcript, on that day, as I am today, Judge…I don’t recall being that clear in my mind, Judge, on that day. I don’t recall being that clear in my mind, Judge.”
Mr McDowell put it to Supt Cunningham that he didn’t alert anyone to the error and Supt Cunningham said:
“If I had heard it — if I had been clear in my mind, I’d have said that is wrong, because it was clearly wrong..”
This brings us back to Chief Supt Fergus Healy’s evidence.
When he was giving evidence about this exchange between Sgt McCabe and Mr Smyth – in which Sgt McCabe said the blackmail allegation was “absolutely false” – Mr McDowell asked Chief Supt Healy:
“Did either of them [Colm Rooney or Noel Cunningham] come to you that evening and say, hold it, there’s a car crash about to take place here, counsel is putting a completely wrong version to Sergeant McCabe, that isn’t what we meant and that isn’t what we told counsel?”
Chief Supt Healy said:
“They may not have come to me, they may have gone to counsel, I don’t know, but certainly I can’t remember what arose after that. But counsel was questioning the witnesses and putting issues to them, so it was a matter for counsel to deal with that.”
When questioned earlier by Kathleen Leader BL, for the tribunal, Mr Healy did recall Mr Cunningham coming to him on May 18.
But it doesn’t appear that it was to correct the false allegation that had been put to Sgt McCabe.
Following on from questions concerning Mr Smyth’s cross-examination of Sgt McCabe on May 18 – during which Sgt McCabe said the blackmail allegation was “absolutely false” – Ms Leader referred to a note Chief Supt Healy had taken on May 18 about what happened that day.
This note, the tribunal heard, includes the phone number of Sgt Yvonne Martin.
And where did Chief Supt Healy get Sgt Martin’s number from? Supt Noel Cunningham.
Ms Leader and Chief Supt Healy had the following exchange:
Leader: “Now, just alongside that [referring to the notes] there is a phone number which is redacted from our circulated materials.
Leader: “Is that Sergeant Martin’s phone number?”
Healy: “Yes, yes.
Leader: “If you could tell us what exchange took place in relation to Sergeant Martin?”
Healy: “I think at that particular time Sergeant Martin’s name was mentioned in the proceedings and I’m not 100 percent sure but I think it was Superintendent Cunningham was either articulating to me that this person was important with respect to what had happened and he basically gave me these details that are in the note, and in the course of that, I had a — I rang Sergeant Martin, just to tell her that she may be required at the Commission.
“And, after that, I never had any contact with her at all. Mr Hegarty, who was a solicitor, who was at the proceedings, had approached me and had mentioned to me that I had contacted him — contacted her and I just at that stage realised that he was her representative and I took a backward step from there, I had no more contact with her.”
Leader: “And to be clear and fair to Sergeant Martin, I think it’s been established, and correct me if I am wrong, that no details of what had happened in the Commission that day were shared with her?”
Healy: “Oh, no, no. It was just a call to put her on notice per se. After that, there was no detail whatsoever discussed at all with her.”
Leader: “Okay. She was never asked to comment –”
Leader: “..in any way in relation to what had been put forward at the Commission?”
Healy: “I had no conversations with her on that front at all. It was just by way of a courtesy call of a notification. Whether it was going to arise or not, I had no control over that at all. And then, as I said, when it became clear to me that there was a separate legal representative acting on her behalf, I didn’t engage any further.”
Does this indicate that Supt Cunningham did hear the exchange in which the false allegation was put to Sgt McCabe and did speak to Chief Supt Healy about it?
Does it indicate that, instead of correcting him, Supt Cunningham indicated that Sgt Martin was someone who was “important with respect to what had happened” – as alleged by Mr Smyth in his questioning of Sgt McCabe?
Was Sgt Martin ever told, by her supposed legal representative, what was said in her name on May 18, 2015?
This would seem crucial given the tribunal has heard solicitor Ms Ryan say she believes Sgt Martin never had sight of the Chief State Solicitor’s letter which mentions her.
It’s important to note that the tribunal has heard Sgt Martin has given a statement to the tribunal.
It has heard that part of that statement states:
I was requested to attend a meeting on 25th August 2008 with Superintendent Noel Cunningham and Sergeant Maurice McCabe at Mullingar Garda Station. The purpose
of my attendance at this meeting was to witness the notes taken by Superintendent Cunningham.
– I did not take part in the discussion between Superintendent Cunningham and Sergeant Maurice McCabe.
– In May 2015, nearly 7 years later, I received a telephone call from Superintendent Cunningham who informed me that he had given Chief Superintendent Fergus Healy my phone number and that I would be receiving a call from him regarding the above meeting.
– Subsequently I received a telephone call from Chief Superintendent Fergus Healy who told me that I might be required to attend at the O’Higgins Commission of Investigation to give evidence in relation to the above meeting.
– I received no further communication from Chief Superintendent Healy, Superintendent Noel Cunningham or anyone connected with the Commission.
– The contents of this statement are based on my memory of the meeting and a review of the documentation relevant to the Commission which has been provided to me by the Chief State Solicitor’s Office on foot of a High Court Order.
– For completeness, I never attended at the Commission of Investigation, nor have I ever, to this day, been contacted by the Garda Commissioner, her legal team, GSOC or the media, to clarify my involvement in or recollection of the above meeting. Further, I was never stationed in Bailieborough Garda Station nor did I have any dealings with any of the members attached to it.”
Readers will note this section of her statement that the tribunal has heard doesn’t mention she had a legal representative at the commission.
The report of the O’Higgins Commission of Investigation doesn’t list Sgt Martin as being represented at the commission, presumably because she wasn’t a witness.
But solicitors’ firm Smyth O’Brien Hegarty is listed as representing almost 20 gardai.
Meanwhile, in terms of tomorrow’s submissions…
Readers will recall how a retrospective allegation made against Sgt McCabe by a 14-year-old daughter (Ms D) of a Garda colleague (Mr D) of Sgt McCabe’s in 2006 – which the DPP fulsomely found, in April 2007, had no basis for prosecution and which Sgt McCabe was informed of by the state solicitor for Cavan Rory Hayden on the day the directions were issued – resurfaced in 2013.
This came about when Ms D attended a counselling session with a RIAN counsellor.
It was then unnecessarily re-referred – in so much as it had been previously investigated – to TUSLA but instead of it being the “humping” allegation made in 2006 by Ms D, it was referred to TUSLA as a rape allegation, unbeknownst to Ms D.
This allegation of rape sat in an unallocated TUSLA file until May 2014 when it was almost simultaneously found to be a mistake and yet travelled officially all the way up to the then 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.
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 in early 2017.
The Disclosures Tribunal is examining the knowledge and circulation of this rape allegation among senior gardai – and whether the false allegation and/or file was knowingly used by senior gardai to discredit Sgt McCabe.
Previously: Disclosures Tribunal on Broadsheet