Sgt Maurice McCabe (foreground) on the third day of the Disclosures Tribunal on January 24.
From 10am in Dublin Castle.
The legal teams for the various witnesses to the Disclosures Tribunal will give their submissions to chairman of the tribunal Supreme Court Judge Peter Charleton in respect of the evidence heard since January.
Olga Cronin will be tweeting live here.
The evidence has primarily focussed on the O’Higgins Commission of Inquiry.
This is because Judge Charleton is tasked with deciding whether the former Garda Commissioner Noirin O’Sullivan inappropriately relied upon false allegations of sexual abuse or any other unjustified grounds to discredit Sergeant Maurice McCabe at the O’Higgins commission.
Readers will recall the O’Higgins inquiry looked at allegations of poor policing in the Cavan/Monaghan area made by Sgt McCabe, with Judge Kevin O’Higgins overseeing 34 days of privately held hearings from May 14, 2015 until December 17, 2015.
At the outset of the commission, on May 15, 2015, Colm Smyth SC, for Ms O’Sullivan, retired Chief Supt Colm Rooney, Supt Michael Clancy and Supt Noel Cunningham told Judge O’Higgins that it was his instructions – as re-confirmed twice that afternoon by Ms O’Sullivan – to challenge the integrity, motivation and credibility of Sgt McCabe.
Mr Smyth would later – in November 2015 – tell the commission that in respect of him having previously stated it was his instructions to challenge Sgt McCabe’s “integrity” – this was an error on his part.
But he maintained it was his instructions to challenge Sgt McCabe’s motivation and credibility – as a means to “test the evidence” of Sgt McCabe.
It should be noted that, during the entire time of the commission, Sgt McCabe was never made aware that a wholly false allegation of child rape was sitting in a file in the then Garda Commissioner Noirin O’Sullivan’s office.
This false allegation of rape came about in August 2013, after a woman referred to as Ms D – who made an allegation against Sgt McCabe in 2006 which was found to have no foundation by the DPP – spoke to a HSE counsellor in 2013 about the matter.
The 2006 complaint referred to an allegation of ‘dry humping’ which she told gardai happened in 1998, when she was around six, during a game of hide and seek.
When the complaint was made, in December 2006, it was 11 months after Ms D’s father, a Garda colleague of Sgt McCabe, was disciplined for arriving at the scene of a suicide drunk and whom Sgt McCabe told to leave the scene.
After Ms D spoke to the counsellor in August 2013, the matter was erroneously sent to Tusla – erroneous because the matter had already been investigated by the gardai and was found to have no foundation – but it was conflated with a rape allegation wholly unrelated to either Ms D or Sgt McCabe and it sat there until May 2014, when it was further conflated and sent to An Garda Siochana shortly after articles appeared in the Irish Independent about Ms D and her 2006 allegation against Sgt McCabe.
The articles didn’t contain the names of those involved or the geography but when Sgt McCabe gave evidence to the tribunal he said he knew the articles written by Paul Williams were about him and he said he got texts and calls from people who also knew they were about him.
After the false allegation was sent from Tusla to the gardai and travelled up to Ms O’Sullivan in May 2014, it sat in a file in Ms O’Sullivan’s office up until the start of the tribunal last year.
During the closing submissions of the Tusla module at the tribunal last month, Judge Peter Charleton referred to the false allegation as “horrible” and he posed the following to the counsel for An Garda Siochana:
“I’m told, on the one hand, that the Commissioner simply read through it making absolutely no comment and not in any way reacting to it, and secondly, I am expected to accept that she has absolutely no recollection of reading it.”
In his response to Judge Charleton, Mícheál O’Higgins SC, for Ms O’Sullivan, said:
“…the relevance of the letter was not evident to her when it was brought to her attention…”
It should be noted that Ms O’Sullivan has told the tribunal that, although she can’t recall reading the false rape allegation, she was never corrected on it and that she was never told that the material sent to her contained a major error.
And yet, she also told the tribunal that back in 2008/2009 – when she was an assistant commissioner in Human Resource Management – she knew of Ms D’s allegation against Sgt McCabe.
She told the tribunal:
“I also knew that the DPP had directed upon it and that there was no basis for a prosecution.”
Some might find it odd that, given she knew of the 2006 allegation and the DPP’s directions back in 2008/2009 – why the rape allegation, which was false but was presented as correct, didn’t jump out at her in 2014.
In any case.
It was only until a few weeks after the O’Higgins commission had finished that Sgt McCabe, on January 5, 2016, was told, via a letter from Tusla, that the child and family agency was investigating him for child rape.
The letter, referred to as “ghastly” by Judge Charleton, was sent, the tribunal has heard, in error.
Sgt McCabe’s solicitor Sean Costello wrote back to Tusla in January 2016 and told Tusla the allegation was entirely false. But Tusla didn’t respond until the following June.
Coincidentally, Tusla’s response – in which a social worker said “I apologise that a mistake was made in my previous correspondence. I can confirm to you that no allegation of ‘digital penetration’ has been made in relation to your client” but didn’t explain how the “mistake” occurred – came about three weeks after Fianna Fail TD John McGuinness told the Dail on May 26, 2016, that “vile stories” had been circulated about Sgt McCabe back in January 2014.
The tribunal heard this week that Mr McGuinness told Sgt McCabe that Noirin O’Sullivan’s predecessor Martin Callinan told him that Sgt McCabe wasn’t to be trusted and that he abused his children and his nieces.
The tribunal has heard Mr Callinan denies saying this.
In addition, it should be noted that Fine Gael’s Alan Shatter former Minister for Justice Alan Shatter, on Thursday June 19, 2014 – some weeks after his resignation on May 7, 2014 – called for Ms D’s allegation against Sgt McCabe to be included in the then forthcoming O’Higgins Commission of Investigation.
The tribunal has also heard that there was some “consideration” given to including Ms D’s complaint in O’Higgins.
Ultimately, it wasn’t included.
And crucially, as transcripts of the O’Higgins inquiry show that nobody put to Sgt McCabe at the commission “did you sexually abuse a child?”, Judge Charleton has repeatedly told the tribunal the main question for him – in terms of this particular term of reference – is whether any other unjustified grounds were inappropriately relied upon by Ms O’Sullivan.
This is because in January, Judge Charleton specifically asked Mr McDowell if it was Sgt McCabe’s contention that nobody at the O’Higgins commission ever intended on asking Sgt McCabe something along those lines.
Mr McDowell said that, yes, that was the case.
Mr McDowell also synopsised what Sgt McCabe believes was happening at the O’Higgins commission.
Mr McDowell said:
“What was actually happening in Sergeant McCabe’s view, and this is a view which his legal team prefers, was an effort to bring in utterly irrelevantly in module one and to push into the mouth of Superintendent Rooney this background material solely for the purpose of embarrassing Sgt McCabe and raising a question mark in the minds of the Commission, why is this man — is he really concerned with bad policing at all or is he trying to settle a score with Superintendent Clancy and other people in the Garda Síochána.
“And his motivation and his credibility and, from time to time, his integrity was stated to be in issue precisely because of that. And we say that, and this is why I pursued the line of questioning with this witness [former Secretary General of the Department of Justice Noel Waters] earlier this morning, or earlier in the day, we say that there was consideration, God knows by whom, given to the question of putting Ms D’s allegation firmly in the middle of the table at the O’Higgins Commission.
“It was firmly rejected and would have been an outrageous thing to do. But we believe and we say, and Sergeant McCabe is adamant on this, that it was dragged back in in a collateral way to embarrass him, to query his motives, to make him — to demean him in the eyes of the Commission and to make it appear that none of his complaints about poor policing in his area were genuine, but that they were all concocted with a view to getting back at An Garda Síochána.”
Judge Charleton will have to consider if Mr McDowell is correct.
In regards to the O’Higgins commission, the tribunal has heard a lot about incidents and evidence given at O’Higgins on Day 1 (Thursday, May 14, 2015), Day 2 (Friday, May 15, 2015), Day 3 (Monday, May 18, 2015), Day 4 (Tuesday, May 19, 2015) and Day 5 (June 24, 2015).
Specifically, it’s also heard about “gross falsehoods”, in the words of Mr McDowell, or “factual inaccuracies”, in the words of Ms O’Sullivan, which were levelled against Sgt McCabe at the O’Higgins inquiry – and which mainly centred on the DPP’s directions in respect of Ms D’s 2006 complaint.
These falsehoods/inaccuracies were raised in evidence at the outset of the commission, committed to paper in the form of a 20-paragraph letter submitted on behalf of the Chief State Solicitor Eileen Creedon to the commission on May 18, 2015, and, in some cases, committed to paper again when written submissions were later made to the commission on June 11, 2015.
One of the falsehoods/inaccuracies was an allegation that Sgt McCabe was angry with the DPP and that he wanted the DPP’s directions challenged.
Unbeknownst to An Garda Siochana at the time, Sgt McCabe was fully briefed of the DPP’s directions by the Cavan state solicitor Rory Hayden on April 11, 2007, and was, in his own words to the tribunal, “absolutely thrilled” with them.
Judge Charleton described the DPP’s directions “as close to an exoneration as anyone could get”.
This makes the claim given in evidence that Sgt McCabe wanted them challenged bewildering.
And yet it happened.
Chief Supt Colm Rooney, who was in charge of the Cavan/Monaghan District in 2007 but who was retired by the time of the O’Higgins inquiry – in response to a question from Colm Smyth SC, for both CS Rooney and Noirin O’Sullivan – told the commission on May 15, 2015, the following about a meeting he had with Sgt McCabe in late 2007:
“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.
“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.”
It was these words uttered by CS Rooney which sparked a legal row that afternoon with, initially, counsel for the commission Sean Gillane SC, calling into question the line of questioning by Mr Smyth SC.
Mr McDowell told the commission:
“I am entitled as a matter of simple constitutional and natural justice, firstly, to have full notice of the attack that is going to be made on his character or his credibility or his motivation and I must be in a position to know what is coming, not to have a collusive effort between the Commissioner and senior ex-Gardaí to have examination and cross-examination or, sorry, cross-examination directed to these topics with a view to raising these issues without any notice to my client that this was coming.”
As a consequence of the legal row, following Mr Rooney’s comments, the hearing adjourned for Colm Smyth SC, for Ms O’Sullivan, retired Chief Supt Rooney and Supt Noel Cunningham, to seek confirmation of his instructions from Ms O’Sullivan – as she was his primary client.
This communication with Ms O’Sullivan went through Chief Supt Fergus Healy and, ultimately, Ms O’Sullivan did reconfirm her instructions – twice – 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, as mentioned above, he later, in November 2015, told the commission this was an error on his part.
As a further consequence of the legal row, Judge O’Higgins said Mr McDowell was entitled to know what “adverse allegations” were being made against Sgt McCabe.
Specifically, Judge O’Higgins said:
“In this regard I think, Mr Smyth, I would invite some submission by you, perhaps over weekend, we may need time to consider the matter, as to precisely the relevance of the allegations or the motivations in relation specifically to this module, where, if Mr McDowell is correct, there doesn’t seem to be a difference of fact very much. If there is no difference of fact, the question of credibility, which of course you are allowed to canvas, doesn’t really arise.”
A letter from the Chief State Solicitor Eileen Creedon was composed, the tribunal heard, as a means to give notice to the commission and Sgt McCabe’s legal team of the “matters to be relied on” by Noirin O’Sullivan at the O’Higgins commission.
The letter was headed:
“As directed by the Judge in the course of hearing on Friday, the 15th May 2015 we hereby provide the factual issues to be put to Sergeant Maurice McCabe”
Of the letter’s 20 paragraphs, at least 13 made reference to either Ms D, Mr D, or the DPP’s directions concerning Ms D’s 2006 allegation.
And it was littered with the aforementioned falsehoods/inaccuracies.
The letter’s paragraph 16 appeared to flesh out what CS Rooney had said on the previous Friday at the commission – when he alleged Sgt McCabe wanted the DPP’s directions to be challenged.
Paragraph 16 said:
“Sergeant McCabe sought 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 DPP. He demanded that Chief Superintendent Rooney communicate with the DPP to seek a declaration of innocence from the DPP in relation to the allegation. Chief Superintendent Rooney advised Sergeant McCabe of the policy of the DPP 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 DPP.
“Chief Superintendent Rooney pointed out to Sergeant McCabe that from his own experience of dealing with criminal files to the DPP he was aware of the DPP’s role to determine if sufficient evidence was available on a file to direct a prosecution. Chief Superintendent Rooney advised sergeant McCabe that it is not the Garda Commissioner’s policy that An Garda Síochána, 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 is he so wished to seek the declaration he required.
When asked about this, Mr Rooney told the tribunal:
“It’s in relation to a consultation that I had with my legal team, and obviously I don’t wish to discuss it.”
In respect of paragraph 14, which stated:
“Sergeant McCabe was unhappy with the outcome of the decision of the Director of Public Prosecutions as he believed the decision ought to have completely exonerated him, rather than recording that there was not sufficient evidence to proceed against him.”
Mr Rooney said:
“I didn’t provide the information in respect of that and that was in relation to communications with my legal team, and I honestly cannot comment in relation to it.”
When Mr McDowell pressed Mr Rooney on the idea that the DPP ruled there was merely “insufficient evidence”, Mr Rooney said:
“Well, he certainly didn’t say that he was absolutely exonerated, either.“
Another error in the CSS letter was paragraph 19 which painted the picture that Sgt McCabe had attempted to blackmail Superintendent Michael Clancy and that Sgt McCabe had confessed this to Supt Noel Cunningham in the company of Sgt Yvonne Martin.
Paragraph 19 stated:
“Having been appointed to investigate Sergeant McCabe’s complaint against Superintendent Clancy, now Superintendent Noel Cunningham, having attempted on a number of occasions to meet with Sergeant McCabe, eventually met with Sergeant McCabe by appointment on the 25th August 2008 in Mullingar Garda Station, to receive details of his formal complaint. Superintendent 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 Rooney. In the course of this meeting Sergeant McCabe advised Superintendent Cunningham that the only reason he made the complaints against Superintendent Clancy was to force him to allow sergeant McCabe to have the full DPP directions conveyed to him.”
This has been referred to as an error by counsel for An Garda Siochana who have claimed that instead of the word “against”, it should have said “to”.
It’s also heard that notes of the consultations also show Supt Cunningham said “to”.
However, some might argue that doesn’t explain the threat of force.
The tribunal has heard that, in February 2008, Supt Michael Clancy requested Sgt McCabe to draw up a report about his dealings with the D family and that Supt Clancy said he would see if he could get the DPP’s directions shown to the D family.
The request came some four months after Sgt McCabe had been confronted by members of the D family in public in October 2007.
Sgt McCabe obliged with the request and then Supt Clancy tasked Supt Noel Cunningham to look investigate the report – and this was what the purpose of the meeting in Mullingar in August 2008 was about.
The false ‘blackmail’ error was put to Sgt McCabe – by Mr Smyth – when Sgt McCabe was in the witness box on Day 4 of the commission (Monday, May 18, 2015).
Specifically, they had this exchange:
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.”
Despite this being said in a room full of people the error wasn’t spotted.
It was also repeated when written submissions were submitted to the commission on June 11, 2015.
And worse, it was elaborated on.
Paragraph 70 of 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 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 25th August 2008. On this occasion, Superintendent Cunningham was accompanied by Sergeant Martin.
It is understood that Superintendent Cunningham will give evidence that Sergeant McCabe said at that meeting that the complaint which he had made alleging lack of support, as referred to in the preceding paragraph, was a bid by him to have the full DPP directions conveyed to him and the complaining party. This is recorded in a report of the meeting prepared jointly by Sergeant Martin and Superintendent Cunningham.”
The idea that Sgt McCabe had attempted to engage in a blackmail situation with Supt Michael Clancy about the DPP’s directions was effectively dismissed on Day 5 of the commission (June 24, 2015) when Judge O’Higgins brought attention to a transcript of this Mullingar meeting – after Sgt McCabe produced a tape of the meeting – which showed paragraph 19 of the CSS letter was incorrect.
Judge O’Higgins also drew attention to the fact that a report of the meeting, submitted to the commission by Supt Noel Cunningham also didn’t support paragraph 19 but, instead, matched Sgt McCabe’s tape.
As Kathleen Leader BL, for the tribunal, put it in January: “…the matter of a threat at Mullingar meeting was negatived.”
Earlier this week, Shane Murphy SC, for the Garda Commissioner, put it to Sgt McCabe that, according to his evidence, Sgt McCabe believes his tape was of “material relevance”.
Mr Murphy argued it “wasn’t crucial at all” – as Supt Cunningham’s report matched Sgt McCabe’s tape and, therefore, the mistake would always have been caught.
Sgt McCabe said he couldn’t agree with Mr Murphy’s assertion.
Meanwhile, in the case of the evidence given to the O’Higgins commission by Mr Rooney on Friday, May 15, 2015 in which, as mentioned above, he claimed at a meeting in 2007 with Sgt McCabe that Sgt McCabe was “very angry”, “very annoyed” and “very upset” and “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”, the commission also saw this stance somewhat crumble.
Curiously, it crumbled a day after Sgt McCabe, on Monday, May 18, 2015, informed the commission – and by extension An Garda Siochana for the first time – that he was fully briefed of the DPP’s directions and was very happy with them.
On that Tuesday (May 19, 2015), Mr Rooney had the following exchange with Mr McDowell:
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.”
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.”
How did these falsehoods/inaccuracies end up featuring in the CSS letter?
How did the blackmail allegation about the Mullingar meeting end up in the submissions?
Does the fact that the submissions state evidence would be given in respect of the Mullingar meeting suggest there was a plan or expectation certain things not committed to paper would be raised in oral evidence to support the blackmail falsehood/inaccuracy – but that the air went out of it after Sgt McCabe produced his tape?
In respect of Mr Rooney’s claim that Sgt McCabe “demanded” the DPP’s directions be challenged, did this fall flat once Sgt McCane enlightened An Garda Siochana, while giving evidence, that he was fully briefed of the DPP’s directions and was very happy with them?
Or were they simply errors?
And, most importantly, what was Noirin O’Sullivan’s knowledge of them before and after they were made?
After all, Judge Charleton has repeatedly made it clear what his remit is.
On Monday he said:
“I’m supposed to look at, not did Mr. Justice O’Higgins do a good job, did Chief Superintendent Rooney say something that was inaccurate, did Superintendent Cunningham make a mistake, were two different words used inconclusively, was the letter effectively, when you actually read it in detail, a load of rubbish, because it doesn’t make any sense?
“What I am actually asked to investigate in relation to this and what you [Sgt McCabe] are being asked about is, did Commissioner O’Sullivan ever try to challenge you on the basis that you had sexually abused children on a number of occasions. “No” is the answer to that.
“And then the second thing is, was there anything then that was inappropriately relied upon by Commissioner O’Sullivan to discredit you? Now, that is the question.“
To answer that question, it would seem Judge Charleton will have to consider, among other matters, the evidence of the key people in respect of the consultations that took place before the commission started; the getting of instructions from Ms O’Sullivan who was Mr Smyth’s primary client; the construction and submission of the CSS letter; and the construction and submission of module one’s submissions.
The key people are former Garda Commissioner Noirin O’Sullivan; her liaison officer at O’Higgins Chief Supt Fergus Healy; Supt Noel Cunningham, retired Chief Supt Colm Rooney, and the legal team representing all three gardai: solicitor with the Chief State Solicitor’s office Annemarie Ryan; Colm Smyth SC; Garrett Byrne BL; and Michael McNamee BL.
The following is what Ms O’Sullivan told the tribunal in respect of the key days in the commission.
Below that are some questions and anomalies.
Ms O’Sullivan told the tribunal that she saw the O’Higgins commission as an opportunity to get to “the truth”.
She said she would have discussed this with Chief Supt Healy from around the time he was appointed on April 29, 2015.
“I would have given directions to Chief Superintendent Healy, a general instruction that what we were trying to do here was to assist the Commission in getting to the truth of the matter by establishing all of the relevant facts.”
Asked if specifically made it clear to him that at no time was Sgt McCabe’s integrity to be challenged, she said:
“Yes, Chair, from my recollection, it was always the case, in my discussions with Chief Superintendent Healy from the outset, that it was simply to put the facts before the Commission of Investigation, that they could be properly and thoroughly investigated by Mr. Justice O’Higgins.”
Ms O’Sullivan also contended:
“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.”
She also said she knew that legal consultations were taking place in the run-up to the O’Higgins commission.
These involved consultations which took place between Supt Noel Cunningham and retired Chief Supt Colm Rooney and the legal team.
Mr O’Sullivan told the tribunal Chief Supt Healy told her about the consultations but, she said: “We didn’t go into the specific detail of the information that was imparted.”
However, Ms O’Sullivan did say she presumed Ms D’s allegation was discussed at the consultations because she was aware the DPP’s directions, in respect of the allegation, were discussed.
She also told the tribunal that it wouldn’t have surprised her to know the D allegation was being discussed at the consultation.
“It wouldn’t surprise me, but I think what is important to say is that there was always a sensitivity, and there remains a sensitivity, around anything to do with the matters that the DPP had adjudicated on and had found there was no basis for a prosecution.”
This comment about “sensitivity” jars a little when one considers Ms O’Sullivan knew there was no basis for a prosecution in relation to the Ms D allegation since 2008/2009 yet, the tribunal has been told, Ms O’Sullivan didn’t respond to an allegation of rape made against Sgt McCabe which was false, but presented to her as real, when it was sent to her in May 2014.
All in all, Ms O’Sullivan’s evidence suggested she wasn’t given explicit details of the consultations and she appeared to put some distance between her and those who gave information to the legal team.
“Obviously I wasn’t present at the consultation, so I am not sure what questions counsel felt that they needed to explore to get the background that they needed to inform them…
“I hadn’t got possession or knowledge of the factual matters because obviously I had not, for appropriate reasons, been present at the consultations or interviewed any of the witnesses, so I didn’t know what the factual matters that they had were and that counsel had been exposed to that.
“I was very satisfied that the advices were coming from a competent and professional legal team and that they had had the opportunity to interview — or, sorry, ‘interview’ may not be the right word — consult with all of the witnesses that were going to give evidence, and they, at that point, probably had a better understanding of the factual detail than I had.”
The tribunal heard that Chief Supt Healy called Ms O’Sullivan on the night of May 14, 2015 to seek her instructions.
Ms O’Sullivan did not make any note of the call.
But Chief Supt Healy did.
The tribunal has seen that, in his note, Chief Supt Healy had the words:
“Permission/instructions to use Cunningham inve [investigation].”
Ms O’Sullivan said what she understood her counsel to be seeking was “an in-depth understanding of what were the reasons or what was the rationale, why Sergeant McCabe, or the basis, maybe that is a better way to put it, the basis on which Sergeant McCabe believed that these incidents, combined together, led to corruption and malpractice, and, most importantly, what evidence did he have.”
Chief Supt Healy also had this note underneath the word “motivation”:
“Clancy refused, Rooney refused, then Maurice changed”.
Of this, Ms O’Sullivan said: “My understanding of what happened, or what was suggested had happened, was that when Sergeant McCabe — or when Garda management refused the directions to Sergeant McCabe, that Sergeant McCabe’s attitude became different. So my understanding was that, actually, this, in some way, had some bearing on his perspective.”
When CS Healy was giving evidence, he had an exchange with Judge Charleton in respect of his call with Ms O’Sullivan on May 14.
Readers should not that CS Healy – who was the superintendent with responsibility for the Cavan Garda district from September 2005 until March 2007 – also told the tribunal that saw the DPP letter of April 5, 2007, before the O’Higgins Commission of Investigation, and “was aware that there was a doubt as to whether or not there was an offence at all”.
From the exchange…
Judge Charleton: “Was it that, did the Commissioner know that someone was saying, perhaps mistakenly, that Sergeant McCabe had engaged in blackmail in order to get the letter from the DPP circulated?”
Charleton: “She didn’t?”
Healy: “It wasn’t engaging in blackmail, it was my — from my understanding — ”
Charleton: “Look, was the letter mentioned at all, the circulation?”
Healy: “No, that letter at that stage wasn’t even constructed.”
Charleton: “What did the Commissioner know?”
Healy: “Well, she knew what I had told her.”
Charleton: “Which was what?”
Healy: “Which was that, based on what the — what had come out of the consultations, which was when the trigger question was asked here by counsel, the replies that they got vis-á-vis the refusal to give the DPP’s directions, was at that stage deemed to be the linchpin that started all of these issues and that all the issues arose after that matter and that –”
Charleton: “So, of the questions that Ms. Leader put to you, it’s number two; that Sergeant McCabe had a grudge in consequence of the non-circulation of the DPP letter?”
Healy: “I think the consensus — ”
Charleton: “Forget about the consensus at the meeting, or whatever —
Charleton: “– what I really need to know is what the Commissioner know. Did anyone explain that to her?”
Healy: “I explained to the Commissioner that the refusals had been — had taken place at superintendent level and at chief superintendent level and that the sequence of complaints followed on from that, and that counsel were of the view that they had to explore the whole area of motive and the credibility of what Sergeant McCabe was saying, and they were advising that, and on the basis of that, the Commissioner was inclined to instruct counsel to go ahead along those lines.”
Charleton: “And she never knew about what is said now to be mistaken?”
Charleton: “That Sergeant McCabe was blackmailing senior officers, making a complaint against Superintendent Clancy in order to twist his arm to get the letter from the DPP circulated about the dismissal of the D case?”
Healy: “No. That letter wasn’t even constructed at that stage. The letter was constructed over the weekend of the 15th May”
Charleton: “…according to this book that I am reading: “It is Contrary to professional etiquette for an advocate to put disparaging questions to a witness unless his instructions give him reasonable grounds supposing they are justified.” So the case that you are making to the Commissioner over the phone is that senior officers had said to you, all of this began with the non-circulation of the letter and is due a grudge?”
Healy: “What they were saying — the grudge word was never used as such.”
Charleton: “Well, I am trying to summarise what is –”
Healy: “Yes, sorry. Yes, exactly, that is the point. The point is that I think counsel was at pains, and I distinctly remember him asking that question over and over again: What was the trigger point here for the start of all this? We have to go back to the basics, what started all of this? And the DPP direction and the refusal to impart that was the starting point. It was the spark that lit the fuse…”
Moving on to May 15, 2015 – when the legal row erupted and CS Healy had to seek confirmation of Ms O’Sullivan’s instructions for Mr Smyth.
Ms O’Sullivan said she initially told CS Healy that she’d rather an adjournment.
She was adamant that she wasn’t have second thoughts about her instructions but instead:
“I wanted to make sure that there were necessary supports in place for Sergeant McCabe.”
Asked who she would have spoken to if she had got an adjournment, Ms O’Sullivan said she would have spoken to CS Healy and her legal team.
“I didn’t want to discuss the advices or the instructions; I wanted to understand what was the issue, in more detail, that had arisen at the Commission.“
This is somewhat confusing.
If Ms O’Sullivan was keen to know what had arisen, she would have learned what Mr Rooney told the commission that afternoon – which was that Sgt McCabe wanted the DPP’s directions challenged.
If this occurred, it should have set off alarm bells for her – given she knew, she said, that the DPP ruled there should be no prosecution.
The tribunal heard Ms O’Sullivan shared many calls with CS Healy that afternoon. In respect of these calls, Ms O’Sullivan said:
“It would have been a continuation of a conversation – certainly some would have been around, I believe that I asked a second time was it possible to get an adjournment, but it was to — just to basically go back over again with Chief Superintendent Healy so as that I had an understanding of what the legal argument that had arisen was, and also, that, having reflected on the advices, to make sure that everything was going appropriately at the Commission.”
Is it plausible that Ms O’Sullivan would have been told of the legal argument without being told what Mr Rooney told the commission – which prompted the legal row in the first place?
The tribunal has heard that Mr Smyth told the commission:
“My instructions are to challenge the integrity certainly of Sergeant McCabe and his motivation. His motivation and his credibility in mounting these allegations of corruption and malpractice.”
Ms O’Sullivan she never sanctioned any such approach towards Sgt McCabe in relation to his integrity.
It was put to Ms O’Sullivan that it might have been useful for Ms O’Sullivan to go down to the commission that day.
She responded: “I would have very much welcomed the opportunity to go down to the Commission, because I think it would have — we may not even be here now.”
This is interesting as Annemarie Ryan, in her evidence, said she actively seeking to have a consultation with Ms O’Sullivan that weekend but CS Healy told her Ms O’Sullivan was unavailable.
CS Healy told the tribunal that he did attempt to arrange a consultation between the two women but Ms O’Sullivan said she was too busy/otherwise engaged.
But Ms O’Sullivan said she was never asked by CS Healy and never informed of such a request.
“I’ve read Ms. Ryan’s evidence, and my conversations with Chief Superintendent Healy, and I do appreciate that Chief Superintendent Healy was under a lot of pressure relaying matters to and fro from the Commission, but certainly I was never given the impression that there was such an emphasis on having a meeting, because no matter what I was doing or where I was, I would always make myself available if it had been pressed upon me that there was such a desire on behalf of Ms. Ryan to have a consultation, I certainly would have done that.”
In respect of the Chief State Solicitor’s letter, Ms O’Sullivan put clear blue water between her and its creation.
“I had no factual input because I had no knowledge of what had happened in the Cavan-Monaghan area and I had no knowledge of what the interactions were between the individual persons that were contributing to the document and Sergeant McCabe.”
Kathleen Leader BL, for the tribunal, pointed out to Ms O’Sullivan that this suggests Ms O’Sullivan gave the go-ahead to something that was being done in her name – without full knowledge of the facts.
In response, Ms O’Sullivan said:
“My opinion was at that time that the expertise that was there between the legal team and the people that had the best knowledge of it, there was such an urgency on presenting this document for Monday morning, that they were the best people to deal with it.
“I would be afraid that I would be here today accused of interfering in some way if I was going to meet each of the individual people and say to them, what are you going to say about this and what evidence do you have to offer to the Commission? I just, quite frankly, didn’t know, Chairman, and I didn’t think it was appropriate for me to go and interview them.”
After suggesting to her that she didn’t have to interview anyone but, instead, could have just read over the CSS letter, Ms O’Sullivan said:
“I felt it was appropriate to leave it to the legal team.”
Ms O’Sullivan went on to say she didn’t think there was anything improper in the May 18, 2015 letter.
She told Ms Leader:
“I don’t believe that even in what was put forward, that there was anything improper or anything suggesting an improper motive on behalf of Sergeant McCabe in it.”
Asked specifically if that was her understanding of the May 18 letter, Ms O’Sullivan said:
“I believe the purpose of the letter of the 18th was put before the Commission, the matters that were going to be put to all of the witnesses.”
The tribunal has heard that Sgt McCabe – after reading the CSS letter on May 18, 2015, written on behalf of Ms O’Sullivan and in which he was wrongly accused of engaging in some kind of blackmail situation – resigned from his position as sergeant in charge of traffic in Mullingar that same evening.
But Ms O’Sullivan told the tribunal she couldn’t see any connection with Sgt McCabe’s decision to step down and what was written in the May 18 letter.
She then had this interesting exchange with Mr McDowell.
McDowell: “You knew that your counsel had put to him that day that the only reason he made allegations against Superintendent Clancy was to force the Garda authorities to make the DPP’s decision available to Ms. D’s family, isn’t that right?”
O’Sullivan: “I knew that there was the issue of the DPP’s directions, yes.”
McDowell: “No, I’m putting a different point to you. You knew that your own counsel had put it to him that the only reason he had made allegations against Superintendent Clancy was because he wanted to force a favourable decision in respect of the giving of the DPP’s direction to the D family, isn’t that right?”
O’Sullivan: “Well, Chairman, my understanding, the mistake was “against” and “to”.”
McDowell: “Sorry, that was not — you see, this is the point, Ms. O’Sullivan, You’re conflating two very different things. That was all resolved on the 24th June.”
Mr McDowell went on to ask Ms O’Sullivan if it ever occurred to her to ask to see the letter that was sent in, in her name, given Sgt McCabe decision to step down from his role on the very same day.
Ms O’Sullivan said: “Not at that time, Chairman, because the letter was part of the proceedings before the Commission.”
She also told Mr McDowell that she didn’t believe she was aware of paragraph 19 of the letter – which outlined the false blackmail allegation.
Mr McDowell and Ms O’Sullivan also had the following exchange:
McDowell: “Could it be, Ms O’Sullivan, that you were being starved of information and kept in the dark about what had happened?”
O’Sullivan: “Chairman, I think Chief Superintendent Healy, as the liaison officer, was giving me his assessment of matters as they unfolded.”
McDowell: “Well, nobody sent you the letter, nobody told you about the integrity issue, nobody told you about the attack on his credibility. None of these things happened. And nobody told you the content of the letter and here this man reacts very strongly to what happened and you don’t ask about any of those issues?
O’Sullivan: “Well, Chairman, the reaction of Sergeant McCabe, what I was trying to establish in my own mind was, what had happened that made him react like this; was it something outside of the Commission of Investigation?”
The tribunal also heard how Ms O’Sullivan eventually met her counsel – Colm Smyth SC – for the first time on May 21, 2015.
The meeting involved Ms O’Sullivan, Mr Smyth and CS Healy.
Nobody took notes and neither Mr Smyth nor Ms O’Sullivan can really recall the meeting, the tribunal heard.
But CS Healy told the tribunal that the matters that unfolded on day one, two, three and four of the commission (May 14, 15, 18 and 19) were not discussed.
This seems remarkable.
Chief Supt Healy told the tribunal that when, on Monday, May 18, after receiving the CSS letter, Mr McDowell told the commission his questioning of Ms O’Sullivan wouldn’t be a pleasant experience for her, this alarmed Mr Healy.
Mr Healy said: “When those words were uttered, they rang alarm bells in my head.”
And yet, Mr Healy claims he never went back to Ms O’Sullivan and told her about Sgt McCabe being asked if he attempted to blackmail Supt Clancy.
He said: “I didn’t go back to that Commissioner with that issue… I didn’t do that. I didn’t see it as my role either.”
It also seems odd that Mr Smyth didn’t raise the matter with Ms O’Sullivan – given this was the first time they met since he was asked to reconfirm his instructions by another counsel, something he conceded to the tribunal was very rare.
All in all, Ms O’Sullivan has painted the picture of someone who had no idea of the specifics of what was happening at the O’Higgins commission and that she was leaving it up to counsel and those who took part in the consultations and contributed to the CSS letter – chiefly Supt Cunningham, retired Chief Supt Colm Rooney and Supt Michael Clancy.
What’s curious about this is that both Mr Smyth and CS Healy told the tribunal that, during the consultations and at the outset of the commission, it was of paramount importance to them that there was no conflict between Ms O’Sullivan – the primary client – and the other senior gardai Mr Smyth, Mr McNamee and Mr Byrne were representing.
In order to rule out any conflict, surely the specific details of what was said in the consultations and what was committed to paper would have to have been put to Ms O’Sullivan?
To not put these details to her, would suggest the legal team was potentially flying blind or at least running the risk of running into trouble down the line.
1) If the aforementioned paragraphs in the CSS letter were just mistakes, as argued by counsel for the gardai, why did Colm Smyth – who was only able to say so much because of privilege – say: “There was a clear misunderstanding – not so much a misunderstanding, there were clearly wrong instructions.”
In regards to the perceived so-called ‘to’ versus ‘against’ error in the CSS letter, Mr Smyth said: “I can speak for myself in respect of this, I was left in no doubt about this; my clear perception was that this was “against” rather than “to” at the time.”
Mr Smyth also said of learning about the mistake in the CSS letter on June 24: “What transpired was that the note of Superintendent Cunningham and the transcript were compatible. If we had known that to begin with, things would be much different.”
In addition, a letter written by CS Healy for Garda HQ – which the tribunal has seen – stated: “A meeting was held in Mullingar Garda Station with Inspector Cunningham and Sergeant McCabe by appointment on the 25th August 2008. Inspector Cunningham was accompanied to the meeting by Sergeant Yvonne Martin.
“An ancillary but important issue arose at the meeting in Sergeant McCabe advised Inspector Cunningham that the only reason he made the complaint to Superintendent Cunningham was to force him to allow Sergeant McCabe to have full DPP directions in respect of the said investigation conveyed to him.”
It also stated: “The Commission of Investigation got a tape transcribed but declined to allow matters arising in relation to the ancillary issue concerning Sergeant McCabe to be discussed at the hearings.”
This letter was written in May 2016 – after reports about the commission emerged in the Irish Examiner and RTE.
This seems incredible – that the “force” threat was repeated a year later.
After speaking about copying and pasting, Judge Charleton noted:
“I don’t recognise that actual wording as happening in other documents.”
2) Solicitor Annemarie Ryan has given evidence that she handed in Supt Cunningham’s report into the commission and Mr McDowell on the morning of May 18, 2015, along with the CSS letter.
But Mr McDowell is adamant this didn’t happen.
Curiously, it’s also the evidence of Mr Smyth, McNamee and Byrne that they didn’t see Supt Cunningham’s report until June 24.
3) Supt Cunningham has told the tribunal that he handed in a copy of this report of the meeting a second time, on June 9 – ahead of the submissions on June 11 – and yet, still, the submissions were wrong.
4) Supt Cunningham was asked if he had been in the commission room when the false allegation of blackmail was put to Sgt McCabe on May 18, 2015, and if he heard it, would he have corrected the error?
Supt Cunningham said he’d have corrected the error, if he had heard it, but he said he wouldn’t have been hanging on every word so he couldn’t recall if he had heard it.
When CS Healy was giving evidence and he was asked if either retired CS Rooney or Supt Cunningham came to him after the false allegation of blackmail was put to Sgt McCabe in evidence on May 18, 2015…
CS 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 Supt Cunningham went to him to correct the false allegation that had been put to Sgt McCabe.
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.”
It should be noted that Sgt Martin’s name was only mentioned on that Monday in terms of the false blackmail allegation.
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?
If she was, could she not have corrected the mistake then?
If she wasn’t told about what was said in her name, why wasn’t she?
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.
Readers will note the tribunal has seen part of a statement made by Sgt Martin to the tribunal.
It confirms she was contacted by Supt Cunningham in May 2015 – it doesn’t say what day – about the commission and that he told her he gave her number to CS Healy.
It also confirms that CS Healy rang her and told her she may have to appear at the commission but she said she never heard from him, Supt Cunningham or the commission again.
5) The submissions for module 1 were entered on June 11 – with the false allegation of blackmail included – eight days before the transcript of Sgt McCabe’s tape was circulated.
About these submissions, Ms Ryan told the tribunal:
“I believe I may have a note on the file reserving my position to amend them following evidence that I was aware of that may be heard.”
When CS Healy gave evidence, in respect of the submissions, he also made the note: “Yet to be confirmed until evidence is heard” – in respect of a paragraph in the submissions which stated evidence would be given by Supt Cunningham and Sgt Martin to the effect that Sgt McCabe had made a complaint “was a bid by him to have the full DPP directions conveyed to him and to the complaining party”.
The paragraph further stated: “This is recorded in a report of the meeting prepared jointly by Sergeant Martin and Superintendent Cunningham.”
6) The tribunal has heard, from CS Healy, that Supt Cunningham was “very anxious to get access to the transcript” of Sgt McCabe’s tape as soon as it became available when it was circulated on June 19.
Why was Supt Cunningham so eager if he had already handed in his report and notes twice? His legal team couldn’t have been eager as they didn’t even know there was a mistake until June 24 – something which Michael McNamee BL told the tribunal took him, Mr Smyth and Mr Byrne all by surprise.
7) When Sgt McCabe gave evidence earlier this week in respect of his meeting with Supt Dave Taylor he relayed two things that he says Supt Taylor told him in respect of the O’Higgins Commission.
First of all, Sgt McCabe said Supt Taylor claimed CS Healy walked out of a meeting in Garda HQ chaired by a deputy commissioner when he was questioned about O’Higgins commission in May 2016 – after the stories about the commission broke in the Irish Examiner and RTE.
Sgt McCabe said:
“He [Taylor] said that that was — he said to me that after, after the story broke about paragraph 19 in that, you remember the five-page document, he said that they called in Fergus Healy — sorry, Chief Superintendent Fergus Healy, and they called him in to explain why he hadn’t told them at the time that this happened in the O’Higgins Commission.
“And he said Chief Superintendent Fergus Healy opened his, whatever, opened his book or journal and said, I told you on this day and this day and this day, he said three days, this and this and this, and he said that Fergus walked out of the meeting. And he informed me, so he did, that Chief Superintendent Fergus Healy then applied for a transfer out of Garda Headquarters up to Navan, Meath.”
The tribunal has heard Healy is now stationed in Navan.
Secondly, Sgt McCabe claimed Supt Taylor told him that Ms O’Sullivan threw Supt Cunningham “under a bus” in relation to what happened in O’Higgins.
Sgt McCabe told the tribunal (in his protected disclosure):
“Superintendent Dave Taylor stated that he received a phone call from Superintendent Noel Cunningham one day. Noel Cunningham is one of the officers who had interviewed me in Mullingar on the 25th August 2008 and who later was prepared to say that I had made certain admissions to him and another Garda officer, that I had admitted acting out of malice in making my complaints.
“My recording of the interview proved otherwise. Superintendent Cunningham had heard on the news that Commissioner O’Sullivan had sent the Mullingar meeting matter to GSOC. When he rang Superintendent Dave Taylor, Superintendent Cunningham was annoyed and said “Nóirín is after throwing me under the bus”.”
The tribunal continues.