Judge queries if module of tribunal was based merely on 'conjecture'
The chairman of the Disclosures Tribunal has said he is to consider whether there was any proper basis for asking it to investigate its present module.
Mr Justice Peter Charleton questioned whether it was "entirely based on leaks and conjecture".
For the past month the tribunal has been probing whether former Garda commissioner Nóirín O'Sullivan inappropriately relied on false allegations of sexual abuse or any other unjustified grounds to discredit whistleblower Maurice McCabe at the O'Higgins Commission.
With the tribunal now having heard all witnesses in the module, bar Sgt McCabe, Mr Justice Charleton said he had 11 questions to consider before making his findings.
The tribunal is investigating these matters after leaked transcripts from the commission, which sat in private, gave rise to media reports that Ms O'Sullivan accused Sgt McCabe of being motivated by malice when he made allegations of malpractice and corruption.
Ms O'Sullivan has denied accusing Sgt McCabe of malice or that she instructed her legal team to do so. But she did authorise her lawyers to challenge his motivation and credibility, based on the theory of other officers that Sgt McCabe had begun making serious complaints against colleagues after being refused access to the DPP directions in an investigation where he was cleared of sexually assaulting the daughter of a colleague.
Having heard almost all of the evidence, Mr Justice Charleton said he would have to consider: "Was there any proper basis to ask the tribunal to investigate this particular module or was it entirely based on leaks and on conjecture?"
He said "everyone seems to be in agreement" that a false allegation of sexual abuse was not relied upon by Ms O'Sullivan to discredit Sgt McCabe".
But he said he still had to consider if any other unjustified grounds were relied upon.
He indicated a key matter is whether "cross-examination as to credit" was "lawfully deployed", where a witness is asked about something outside the matter being examined, but which impacts on their creditworthiness, such as whether they behaved inappropriately in a different setting.
The judge said if this form of cross-examination was lawfully used at the commission, he may find Ms O'Sullivan did not inappropriately rely on "other unjustified grounds" to discredit Sgt McCabe.
He would also consider whether there was "any evidence of a dark truth of going after Maurice McCabe at the commission" emanating from "the apex of the Garda organisation" and Ms O'Sullivan in particular.
Mr Justice Charleton also had to consider a letter to the commission from Ms O'Sullivan's legal team which contained a false allegation that Sgt McCabe had made a complaint against a Garda superintendent in order to force the release of the DPP directions.
Tribunal counsel have suggested what was described amounted to "an almost blackmail situation".
He said he would have to decide whether the false allegation was a mistake, "an uncorrected mistake which was allowed to stay in an inaccurate form due to recklessness or perhaps inadvertence", or was deliberately done from the beginning.
The tribunal is due to hear submissions from legal teams next week. A date for Sgt McCabe's evidence has yet to be scheduled.