O’Sullivan’s lawyers also represented officer with ‘extremely hostile attitude’ to McCabe, tribunal hears
Former Garda Commissioner Nóirín O’Sullivan has been challenged as to why her legal team at the O’Higgins Commission was also representing a senior officer who believed Maurice McCabe was trying to destroy his career.
Michael McDowell SC, for Sgt McCabe, suggested to Ms O’Sullivan at the Disclosures Tribunal that there was a conflict of interest in the same legal team representing Ms O’Sullivan and representing Superintendent Noel Cunningham.
The barrister said Supt Cunningham was someone who “had an extremely hostile attitude to Sgt McCabe”.
He said Ms O’Sullivan’s position was that she wanted an impartial investigation of issues at the commission, yet she was using the same counsel “as a mouthpiece” as an officer who believed Sgt McCabe was out to ruin him.
Ms O'Sullivan told the tribunal she was not aware or informed of any potential conflict of interest.
Mr McDowell said this was “a manifest conflict of interest”.
Supt Cunningham was the officer who investigated an allegation that Sgt McCabe had sexually assaulted the daughter of a colleague. After receiving Supt Cunningham’s file the DPP decided no crime had been committed.
The tribunal has previously heard Supt Cunningham believed there was a change in Sgt McCabe’s attitude after he refused to give him the full DPP directions, as this was contrary to procedure.
Quoting from an O’Higgins Commission transcript, Mr McDowell said Supt Cunningham testified: “I have since my promotion to superintendent not only been not supported by Sgt McCabe but I have been undermined at every turn.”
Ms O’Sullivan responded that she could not account for the evidence of any witness before the commission.
She said she never had a conversation with Supt Cunningham about his evidence.
Mr McDowell said her barrister, Colm Smyth SC, had also been given instructions by someone who believed Sgt McCabe was intent on destroying his career.
“I can’t agree or disagree. I don’t know what was said [to Mr Smyth] at consultations with other witnesses,” Ms O’Sullivan responded.
Ms O’Sullivan said that she had discussed potential conflicts of interest at the commission with Garda head of legal affairs Ken Ruane.
She said they resolved that if at any stage a conflict of interest arose they would revisit the matter of legal representation.
However, it appears this did not occur.
In its current module the tribunal is investigating whether Ms O’Sullivan relied in unjustified grounds to discredit Sgt McCabe at the O’Higgins Commission.
She is spending her third day in the witness box.
Later, Ms O’Sullivan said neither former Tánaiste Frances Fitzgerald nor any officials at the Department of Justice had any input into her controversial legal strategy at the O’Higgins Commission.
Ms O’Sullivan said phone conversations with the department’s then secretary general Noel Waters and then deputy secretary Ken O’Leary were to inform them what occurred during a sitting of the commission and not to obtain any instruction from them.
“I wasn’t seeking advice or consulting the department, but I would have said to Mr Waters and Mr O’Leary about what happened that day,” she said.
The calls took place on May 15, 2015, the same day a row erupted at the tribunal over the legal strategy being adopted by lawyers for the commissioner.
Ms O’Sullivan reconfirmed her instructions to counsel immediately after a 14 minute conversation with Mr Waters.
She says she instructed them to challenge Sgt McCabe’s motivation and credibility, but her counsel also said he was challenging his integrity.
The integrity challenge was withdrawn several months later.
Questioned by Patrick McCann SC, counsel for the Department of Justice, Ms O’Sullivan agreed neither Ms Fitzgerald nor the officials had any input into her legal advice.
Ms O’Sullivan said she was at a loss to understand why Sgt McCabe had decided he could not longer continue as sergeant in charge of the Garda traffic unit in Mullingar.
The tribunal has previously heard Sgt McCabe told his superintendent he felt “under threat” from Ms O’Sullivan and that if anything went wrong “they would be down on him like a tonne of bricks”.
Sgt McCabe made his decision on May 18, just three days after the commission was told by Ms O’Sullivan’s counsel, Colm Smyth SC, that he had been instructed to challenge the whistleblower’s integrity.
But Ms O’Sullivan said she “couldn’t make the connection” between what was going on at the commission and Sgt McCabe’s feelings of being under threat.
Michael McDowell SC, for Sgt McCabe, took issue with this.
He asked her if she had not sought to find out if something had occurred at the commission. Had the Garda liaison officer for the commission, Chief Supt Fergus Healy, not not kept her aware of what was going on, he asked.
Ms O’Sullivan said Chief Supt Healy had brief her, but she wasn’t aware of the specific questions that had been asked or the words used.
She also took issue with Mr McDowell’s categorisation of matters as “an attack” on Sgt McCabe.
“I don’t believe there was an attack on anybody,” she said.
Ms O’Sullivan went on to say that she didn’t believe she had done anything to make Sgt McCabe feel threatened or to leave his sergeant in charge role.
“I certainly didn’t feel I had done anything that would have amounted to a threat to Sgt McCabe in his role as sergeant in charge of the traffic bureau in Mullingar,” she said.
The former commissioner said it was her understanding there had been a heated legal argument during which “a lot of words” were used.
“I wasn’t aware of the words used,” she said.
Mr McDowell asked her if she was being “starved of information”.
Ms O’Sullivan denied this and said she believed the liaison officer had given his assessment of what happened.
She said that once her legal instructions had been given, the questions and the words used were up to the lawyers and not her as a client.
“That is the latitude that the lawyers had,” she said.
Mr Smyth clarified on November 4, 2015, after being asked about it by Mr Justice Kevin O’Higgins, that he was not challenging Sgt McCabe’s integrity.
Mr McDowell said Ms O’Sullivan was present at the commission that day and asked if she was shocked or surprised when the matter came up.
“I wasn’t aware that these words had been used. On that day I because aware that the integrity [issue] was corrected,” she replied.
“Mr Smyth outlined that integrity was his mistake and the issue of malice was also clarified.”
The tribunal heard that the day before the November 4 hearing Ms O’Sullivan had a consultation with her legal team.
A note by Chief Supt Healy contained the line “would the commissioner consider withdrawing” near the words “mala fides”.
Asked about this, Ms O’Sullivan said she had no recollection of being asked to withdraw anything.
Mr McDowell asked if it was a coincidence that Mr Smyth had withdrawn the integrity challenge the next day.
But Ms O’Sullivan said she just couldn’t account for the contents of the note as she had never instructed that this word be used in the first place.