Monday 17 December 2018

'I acted on legal advice when I challenged McCabe’s credibility,' O'Sullivan tells Disclosures Tribunal

Noirin O’Sullivan was Garda commissioner from 2014 until announcing her retirement in September last year (Niall Carson/PA)
Noirin O’Sullivan was Garda commissioner from 2014 until announcing her retirement in September last year (Niall Carson/PA)
Shane Phelan

Shane Phelan

Former Garda Commissioner Nóirín O’Sullivan has said she was acting on legal advice when she decided whistleblower Maurice McCabe’s credibility and motivation should be challenged at the O’Higgins Commission.

But she has insisted she never considered Sgt McCabe to be “malicious” and that her instructions were aimed at testing the veracity of his allegations.

“I never ever instructed counsel to impugn Sgt McCabe’s integrity,” she said.

The tribunal is investigating if the former commissioner relied on unjustified grounds to discredit Sgt McCabe at the commission, which investigated allegations of Garda malpractice he had made in the Cavan/Monaghan division.

It has heard evidence that barristers representing Ms O’Sullivan sought her permission to query Sgt McCabe’s motivation and credibility after they received a background briefing at a legal consultation meeting on May 11, 2015.

Chief Superintendent Fergus Healy, the Garda liaison officer to the commission, has said most of the information relayed to the barristers at the consultation probably came from him.

Ms O’Sullivan was not present, but afterwards she felt she was faced with “an unprecedented dilemma”. Ultimately she approved the legal strategy suggested.

“I was very satisfied that the advice was coming from a competent and professional legal team,” she said.

The former commissioner said the barristers had the benefit of consulting with various garda witnesses before they gave their legal advice.

The briefing the barristers received appears to have included some of the background to the Ms D case, where an allegation that Sgt McCabe had sexual assaulted the young daughter of a colleague was dismissed by the DPP.

The barristers were told Sgt McCabe was unhappy that the full DPP directions were not being circulated to him and the complainant’s family. They were informed there had been a change in Sgt McCabe’s attitude after superior officers refused to circulate the directions.

But Ms O’Sullivan said she believed the focus of it was not on the Ms D allegations, but on what happened after the investigation concluded.

The tribunal has previously heard there were concerns that an upsurge in complaints by Sgt McCabe against colleagues was connected to the refusal to circulate the DPP directions.

Ms O’Sullivan told the tribunal she had been absolutely committed to supporting Sgt McCabe in the workplace and that it “wasn’t an easy decision” to challenge him at the commission.

“I was very aware that it would change Sgt McCabe’s perception of me,” she said.

She told tribunal counsel Kathleen Leader that the legal strategy was being pursued so the commission could get an in-depth understanding of the basis for Sgt McCabe’s belief that Garda management was not dealing adequately with his request for the DPP directions.

“It certainly seems to me Sgt McCabe was very frustrated by his perception this matter was not being dealt with adequately by management,” she said.

After a row developed over the legal strategy on May 15, 2015, the second day of the commission, lawyers for Ms O’Sullivan were asked to reconfirm their instructions.

This led to a series of frantic phone calls to Ms O’Sullivan from Chief Supt Healy.

When he eventually got through to her, she suggested that the legal team seek an adjournment.

She said she was aware there was “a lot of heat in the room” at the commission and as it was 3.30pm on a Friday afternoon there might be an opportunity for an adjournment so she could speak to Chief Supt Healy and counsel over the weekend.

However, an adjournment was not granted.

The tribunal heard that Chief Supt Healy again tried to make contact with Ms O’Sullivan, but she was in the middle of a 14 minute phone conversation with Department of Justice secretary general Noel Waters.

Afters the conversation with Mr Waters ended, she immediately phoned Chief Supt Healy back and reconfirmed her instructions.

Pressed about her conversation with Mr Waters by Ms Leader, Ms O’Sullivan said she didn’t have a specific recollection of it.

But she then added that she believed they discussed a security operation that day, connected with the an upcoming visit of Prince Charles. Three people had been arrested and gardaí were seeking to press terrorism charges against one of them.

“I may well have said to Mr Waters a legal issue had arisen at the meeting and then went on to matters that happened that day,” she said

Ms Leader put it to her that “considering all that was going on” it would have been “highly unlikely” she would have kept Chief Supt Healy waiting while she briefed Mr Waters on other matters.

But Ms O’Sullivan insisted this would not have been the case and that she would have been anxious to speak to Mr Waters about the terrorism operation.

“When I had an opportunity to speak [with Mr Waters] we would generally speak about a number of matters.”

Ms O’Sullivan said she did not recall the detail of a conversation with deputy secretary general Ken O’Leary later that day.

Ms O’Sullivan denied experiencing “second thoughts” about her instructions to her legal team.

“If the advices had changed, I was happy to reconsider. But the advices hadn’t changed,” she said.

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