From left: Sgt Maurice McCabe, Michael McDowell SC, Colm Smyth SC, and former Garda Commissioner Noirin O’Sullivan
At the Disclosures Tribunal in Dublin Castle.
The legal strategy taken at the 2015 O’Higgins Commission of Investigation, on behalf of the former Garda Commissioner Noirin O’Sullivan and several senior gardai, towards Sgt Maurice McCabe will come into sharp focus.
Ms O’Sullivan’s own evidence to the tribunal to date, and that of her liaison officer at the commission Chief Supt Fergus Healy, will also come into focus.
This is because Colm Smyth SC, who represented Ms O’Sullivan and senior gardai at the commission, will give evidence today and will be cross-examined by Michael McDowell SC, for Sgt McCabe.
[Mr Smyth gave around 15 minutes of evidence yesterday before the day’s hearing wrapped up]
Specifically, Mr Smyth will likely be asked about consultations he and his team had with Supt Noel Cunningham and Chief Supt Colm Rooney – who were also represented by Colm Smyth SC – on May 12 and May 13, 2015.
However, this questioning may be restrained as the tribunal has heard Supt Cunningham and Chief Supt Rooney have not waived legal privilege – so all or most matters pertaining to their legal consultations may not be discussed.
[Tribunal has also heard that that Attorney General’s Office is also not waiving privilege. This is the reason why solicitor Annemarie Ryan, of the Chief State Solicitor’s office, could not elaborate or explain on why she made the note “political dynamite” after learning of the legal row on May 15, 2015. She said this was based on what happened and material she had seen.]
The tribunal has already heard several witnesses say the May 12 and May 13 consultations largely gave rise to the five-page, 20-point letter sent from the Chief State Solicitor’s office to the O’Higgins Commission on Monday, May 18, 2015 – after counsel was requested to do so by Judge O’Higgins on Friday, May 15, 2015, after the legal row broke out.
This letter essentially set out what was going to be put to Sgt McCabe.
It contained an allegation of what Kathleen Leader BL, for the tribunal, likened to a ‘blackmail-like scenario’ against Sgt McCabe in relation to a meeting in August 2008 in Mullingar.
This particular claim was put to Sgt McCabe on Monday, May 18, 2015 and he said it was “absolutely false.”
It was eventually proven false by a tape recording of that meeting taken by Sgt McCabe which was given to the commission.
But this was not the letter’s only problem.
It had many of what Ms O’Sullivan called “factual inaccuracies” and what Mr McDowell has called “gross falsehoods”.
Mr Smyth is also likely be asked about former Garda Commissioner Noirin O’Sullivan’s specific instructions relayed to him, via Chief Supt Healy, in May 2015.
Readers will recall how – after the legal row broke out on the afternoon of Friday, May 15, 2015 – Mr Smyth told the O’Higgins commission that his instructions from Ms O’Sullivan had been reconfirmed.
Mr Smyth then agreed with Judge O’Higgins that his instructions regarding Sgt McCabe were that he “acted as he did for improper motives” and that his integrity was being challenged by Ms O’Sullivan.
Specifically, on Tuesday, Mr McDowell asked Ms O’Sullivan if what Mr Smyth said on May 15, 2015 was the “diametric opposite” of her instructions.
She replied: “Well, Chairman, I never instructed that Sergeant McCabe’s integrity be challenged.”
Furthermore, the tribunal has also heard Ms O’Sullivan say that she did make it clear to Chief Supt Healy that at no time was Sgt McCabe’s integrity to be challenged.
She said: “I made it clear that the facts that were going to be tested were never about — nobody ever suggested, in all of the feedback that I got from Chief Superintendent Healy, nobody ever suggested to me that there was any suggestion of an attack on Sergeant McCabe’s integrity.”
Ms O’Sullivan had this exchange with Mr McDowell about the afternoon of May 15, 2015:
Michael McDowell: “…When your counsel is asked what those instructions are, by Mr Justice O’Higgins, he says two things; he said that Sergeant McCabe acted as he did for improper motives, and secondly, that his integrity is being challenged in that respect. He said both of those things immediately after he had received a reconfirmation of your instructions.
“You see, what I am putting to you is, now, that apparently within minutes of you relaying your reconfirmation of your instructions via Chief Superintendent Healy to your counsel, they did the two things that you say you had expressly prohibited them from doing in conversation with Chief Superintendent Healy?”
Ms O’Sullivan: “Chairman, all I can say is that I never instructed that Sergeant McCabe’s integrity be challenged.”
Later in the O’Higgins proceedings, Mr Smyth said it was an error on his part to say Sgt McCabe’s “integrity” was being challenged.
However this occurred after the aforementioned tape recording produced by Sgt McCabe proved that the ‘blackmail-like scenario’ never happened and this was made clear at the O’Higgins commission on June 25, 2015.
Readers should note solicitor Annemarie Ryan, for the Chief State Solicitor’s office has already told the tribunal that she never received any instructions – between May 18 and June 24, 2015 – in relation to the aforementioned denial that Sgt McCabe made clear to Judge Higgins on May 18.
Readers should also note also Chief Supt Healy was in receipt of transcripts of the O’Higgins hearings and passed them on to Ms O’Sullivan private secretary. He said he “definitely” gave Ms O’Sullivan the “controversial ones”.
In addition, on June 11, 2015, submissions are made to the commission by counsel for Ms O’Sullivan, reiterating wrong claims made in the CSS letter.
Incidentally, the submission went further than the CSS letter in so much that it claimed “evidence” would be given to the commission to support the most ‘blackmail’ allegation.
The submissions stated:
“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 Supt Rooney appointed Supt Cunningham to investigate these complaints. Supt Cunningham attempted to meet Sgt McCabe to discuss the complaints and finally did so on the 25th August 2008. On this occasion, Supt Cunningham was accompanied by Sgt 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 complaining party.
“This is recorded in a report of the meeting prepared jointly by Sergeant Martin and Superintendent Cunningham.”
When Chief Supt Healy gave evidence, he was asked if the submissions were “signed off on, on behalf of the Commissioner and the various parties”, he said yes.
Mr Smyth is also likely to be asked about his understanding of why Ms O’Sullivan couldn’t meet with counsel or Ms Ryan, of the Chief State Solicitor’s office, on the weekend of May 16/17, 2015 – when Ms Ryan was seeking an urgent meeting with her.
Ms Ryan has given evidence that she repeatedly asked Chief Supt Healy to ask Ms O’Sullivan for a meeting at this time but that he said Ms O’Sullivan said she was too busy.
Chief Supt Healy has given evidence that he did put Ms Ryan’s request to Ms O’Sullivan and that she said she was otherwise engaged.
Ms O’Sullivan has been adamant to the tribunal that she was never informed that Ms Ryan sought a meeting.
Mr Smyth is also likely to be asked about a meeting Ms O’Sullivan had with Mr Smyth on May 21, 2015 – of which she has no recollection.
Ms Ryan did not learn of this meeting until July 2015 and she told the tribunal that it was described to her as a “cup of tea” meeting.
It’s unclear whether Mr Smyth will be asked about his understanding of the Ms D allegation.
Ms O’Sullivan received a false referral – alleging that Ms D was accusing Sgt McCabe of rape – from the then Assistant Commissioner Kieran Kenny in May 2014.
The referral was presented as a true allegation and Ms O’Sullivan told the tribunal this week that nobody ever told her this was incorrect.
In addition, Mr Smyth is likely to be asked about a meeting in the Four Courts on May 11, 2015.
At this meeting, the garda legal team – Colm Smyth SC, Michael McNamee BL, and Garret Byrne BL – held its first consultation with several gardai, including Supt Cunningham and Chief Supt Colm Rooney.
Ms O’Sullivan wasn’t at this meeting but her liaison officer, Chief Supt Fergus Healy, was there on her behalf.
The purpose of the meeting was to discuss one of the incidents the commission was tasked with investigating, a public order incident and possible sexual assault on a bus in Kingscourt, Co Cavan.
But the tribunal has already heard notes of that meeting showed the meeting largely involved discussion around Sgt McCabe – and even former Garda John Wilson – and Sgt McCabe’s motivation.
The notes prompted Patrick Marrinan SC, for the tribunal, to say: “This has absolutely nothing to do with the factual matters to be investigated by the O’Higgins.”
Judge Charleton also commented on the notes and said they indicated that the thrust of what was heard at the meeting was that Sgt McCabe was a bitter man, led by emotion which could have led to unconscious bias.
Judge Charleton also suggested that the matters being raised were “liable to muddy the waters” and that they should have prompted someone to say “this may be the background but it has certainly nothing to do with anything that is going to come up in front of Mr Justice O’Higgins”.
Broadsheet tweeted during Mr Smyth’s first 15 minutes of evidence yesterday and will be tweeting from today’s proceedings here.
Previously: Memory Full