O'Sullivan 'didn't use sex abuse allegations to discredit McCabe'
Former Garda commissioner Nóirín O'Sullivan is no longer suspected of using allegations of sexual abuse to discredit Sergeant Maurice McCabe at the O'Higgins Commission.
Disclosures Tribunal chairman Mr Justice Peter Charleton said he believed all parties could agree on this based on evidence it has heard so far.
However, the tribunal is to continue with hearings to determine if Ms O'Sullivan relied on other unjustified grounds to discredit Sgt McCabe at the commission, which was investigating complaints he made of Garda malpractice.
A sexual assault allegation against Sgt McCabe was dismissed by the DPP in 2007 following a Garda investigation.
But the tribunal heard details of the case were discussed with three barristers representing Ms O'Sullivan at the commission three days before it began its hearings in May 2015.
Ms O'Sullivan was not at the consultation, but it was attended by a number of gardaí, including Chief Superintendent Fergus Healy, the Garda liaison officer to the commission.
At the meeting, the barristers were told of various difficulties Sgt McCabe had experienced with colleagues. The briefing included details of the 2007 sexual assault investigation, which cleared Sgt McCabe of an allegation of sexually assaulting the daughter of a colleague.
Notes of the meeting, taken by Annmarie Ryan, of the Chief State Solicitor's Office, show the lawyers were told how Sgt McCabe was unhappy that senior officers Chief Superintendent Colm Rooney and Superintendent Michael Clancy would not release the full DPP directions in the case. Shown Ms Ryan's notes, Chief Supt Healy said it was possible he was the source of much of the information given to the barristers.
Tribunal counsel Kathleen Leader said there didn't appear to be any record of good things being said about Sgt McCabe.
"I discussed issues that were in my knowledge at the time," Chief Supt Healy said.
He said that after the meeting counsel advised they would need to address the credibility and motivation of Sgt McCabe and sought the commissioner's approval to do so.
This was given in a phone call to Chief Supt Healy.
"If it was the advice of counsel, she was inclined to agree for them to go ahead," he said.
Ms O'Sullivan confirmed her instructions, again via Chief Supt Healy, on the second day of the commission after a row developed over the legal strategy.
A letter was drafted by counsel that weekend, setting out the basis for challenging Sgt McCabe's motivation.
Chief Supt Healy said it was drafted for the commission following consultation with Superintendent Noel Cunningham, who investigated the dismissed sexual assault claim, and Chief Supt Rooney.
However, it would later emerge at the tribunal that the letter contained a serious error.
It claimed that Sgt McCabe had told Supt Cunningham at a meeting in Mullingar in 2008 that the only reason he had made a complaint against Supt Clancy was to force him to release the full DPP directions.
The letter should have said the complaint was made "to" Supt Clancy and not "against" him.
The error was only discovered after Sgt McCabe was questioned about the meeting at the commission.
Ms Leader said it had the effect of elevating the issue of motive to "a very high level".
"It suggests there was an almost blackmail situation going on, which wasn't actually the case," she said.
Chief Supt Healy said he couldn't explain how it had happened.
The tribunal has previously heard Supt Cunningham signed off on the letter, even though it transpired it did not tally with his notes of the Mullingar meeting.
The tribunal heard yesterday that Supt Cunningham received a copy of the letter by email that weekend, but did not have an opportunity to print it and read it.
He had seen it on his phone, but due to poor eyesight he did not see the mistake.
Supt Cunningham also claims he was "hurriedly" asked by Ms Ryan to sign the letter the following Monday at the tribunal, without having the opportunity to read it.
Ms Ryan disputed this account. "I don't believe I agree with that interpretation and I doubt very much I would get any member at that level of An Garda Síochána to sign a document. I don't have that power," she told the tribunal.