Tuesday 17 July 2018

Nóirín O’Sullivan could be recalled to Disclosures Tribunal after new document emerges

Nóirín O’Sullivan. Photo: Stephen Collins/Collins Photos
Nóirín O’Sullivan. Photo: Stephen Collins/Collins Photos
Shane Phelan

Shane Phelan

Former Garda Commissioner Nóirín O’Sullivan could be dramatically recalled to give evidence at the Disclosures Tribunal to be quizzed about a Garda report which described whistleblower Maurice McCabe as a “paranoiac”.

Michael McDowell SC, counsel for Sgt McCabe, said he would “like to have her back” following the emergence last night of fresh documentation which he said was “offensive and damaging” to his client.

The tribunal heard today that lawyers for former Garda Commissioner Nóirín O’Sullivan and other senior gardaí at the O’Higgins Commission were given a briefing document in 2015 which said Maurice McCabe was a “paranoiac”, had lost control of his station, and should not be put back into it.

The document only emerged last night when it was circulated to parties at the Disclosures Tribunal by the legal team representing barristers Colm Smyth SC, Garret Byrne BL and Michael MacNamara BL.

They were the barristers who represented Ms O’Sullivan and the senior officers at the O’Higgins Commission.

The document, which dates from 2011, appears to have been an extract from the unpublished Byrne/McGinn report, a review conducted between 2008 and 2010 of complaints made by Sgt McCabe.

The vast majority of the complaints were not upheld in the review, conducted by former Assistant Commissioner Derek Byrne and Chief Superintendent Terry McGinn.

Paul Sreenan SC, for the three barristers, said the document was given to Garret Byrne BL by Annmarie Ryan, a solicitor at the Chief State Solicitor’s Office.

The barrister had requested it ahead of the appearance at the commission of Assistant Commissioner Byrne.

Mr McDowell said he wanted to know why the document was only circulated to his client last night.

“I don’t know what was in mind when this highly offensive and damaging material was circulated yesterday,” he said.

He said the emergence of the document led him to question evidence given by Ms O’Sullivan earlier this week.

He said Ms O’Sullivan’s evidence was that her counsel were dependent on briefings from three senior gardaí for background information on Sgt McCabe. These were Chief Supt Colm Rooney, Supt Michael Clancy and Supt Noel Cunningham.

No mention was made of the document in her evidence.

“I am doubting the veracity of what I was told that counsel for the commission were entirely dependent on what three people told them,” said Mr McDowell.

He said he would have questioned Ms O’Sullivan about the document if he had known about it.

Mr McDowell said he would have had a number of queries, including whether Ms O’Sullivan had given the document to the Department of Justice.

Ms O’Sullivan concluded three days of evidence yesterday.

“It does appear that contrary to what was being said here, it is very likely Commissioner O’Sullivan was aware of this material,” said Mr McDowell.

“I’d like to have her back and ask her about this,” he said.

Tribunal chairman Mr Justice Peter Charleton said the right thing for him to do was to note what Mr McDowell was saying.

“It may be necessary for Commissioner O’Sullivan to return,” the judge said.

But he also said that Mr McDowell may get answers to his questions about the document from other witnesses who are scheduled to appear.

Mr Justice Charleton said that if Mr McDowell wished to make an application in this regard he would “consider it in due course”.

Later, tribunal counsel Diarmaid McGuinness continued his examination of Colm Smyth SC, who is regarded as one of the central witnesses in the current module.

Mr Smyth was lead counsel for Ms O’Sullivan and other senior gardaí at the O’Higgins Commission.

Although he was instructed by Ms O’Sullivan to challenge Sgt McCabe’s credibility and motivation, on the second day of the commission he also said he was challenging the whistleblower’s integrity.

Months later he clarified to the commission that he had made an error when he said he was challenging Sgt McCabe’s integrity.

Mr Smyth said the word integrity was actually introduced by Mr Justice Kevin O’Higgins. The barrister said he had fallen into the trap of trying to interpret what the judge meant by the word integrity when he erroneously said he was challenging it.

“Roger Casement was hanged on a comma. I may be hanged for a word I uttered in the commission,” he said.

Mr Smyth said he did not challenge Sgt McCabe’s character.

“The commissioner did not instruct me to challenge his character and I didn’t do it,” he said.

Among the officers Mr Smyth also represented were Chief Supt Colm Rooney, Supt Michael Clancy, Supt Noel Cunningham, each of whom had serious allegations made against them by Sgt McCabe.

The allegations were not upheld by the commission.

Despite the claims made against them, Mr Smyth said from his observation he saw no evidence any of these officers were spiteful or hostile towards Sgt McCabe.

He said that in consultations with garda witnesses the legal team had been “looking for the trigger” for Sgt McCabe’s complaints.

Sgt McCabe had been someone who was well liked and regarded by senior colleagues, but there was a sudden change in him in 2006 and 2007 when he began making complaints.

“We were desperately seeking to find what made this fine, upstanding member of the force become like this,” he said.

To do this he felt it was necessary to put to Sgt McCabe his dealings with Garda management.

One issue counsel was informed of was the aftermath of a garda investigation which cleared Sgt McCabe of an allegation of sexually assaulting the daughter of a colleague.

The tribunal has previously heard Sgt McCabe had sought the full DPP directions in the case, but they were not released.

Mr Smyth told the tribunal he had wanted clearance from Ms O’Sullivan to question Sgt McCabe’s credibility and motivation and this was given.

Asked by Mr McGuinness if he had received specific instructions from the commissioner not to challenge Sgt McCabe’s integrity, Mr Smyth responded: “I got permission for the instructions I sought. If you are asking me did I have liberty to trespass in to other areas, I did not request that and I didn’t do it.”

He said the commissioner’s instructions were relayed to him via Chief Supt Fergus Healy, the Garda liaison officer to the tribunal.

Mr Smyth said he regarded Ms O’Sullivan as “a decent person”. She had given her instructions and had not wavered on them.

Ms O’Sullivan had never used the word “integrity”, he said.

Mr Smyth said he took exception to the suggestion he “attacked” Sgt McCabe at the commission.

He said intemperate language had been used in the Dáil and in the media about him as a result of this suggestion and he had suffered personally because of it.

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