Monday 17 December 2018

Questions linger on as former commissioner may not be out of the woods yet

Colm Smyth, lead counsel for Nóirín O’Sullivan, at Dublin Castle yesterday. Photo: Gareth Chaney
Colm Smyth, lead counsel for Nóirín O’Sullivan, at Dublin Castle yesterday. Photo: Gareth Chaney
Shane Phelan

Shane Phelan

When Nóirín O'Sullivan walked out of Dublin Castle on Wednesday afternoon it appeared she was out of the woods - at least as far as the current module of the Disclosures Tribunal is concerned.

Before she even stepped into the witness box this week she had already been cleared of one of the two issues currently being examined by the tribunal.

This was the question of whether she had used false allegations of sexual abuse to discredit Sgt Maurice McCabe at the O'Higgins Commission.

Mr Justice Peter Charleton said all sides could agree no evidence has been produced to suggest this was the case.

The remaining issue then is whether Ms O'Sullivan inappropriately relied on other unjustified grounds to do down Sgt McCabe at the commission.

There has been evidence Ms O'Sullivan's barrister made a mistake when he said he was challenging Sgt McCabe's integrity at the commission.

Considerable time has also been spent examining how a letter from her legal team to the commission contained an untrue allegation that Sgt McCabe blackmailed a superior officer.

Neither of these issues has been traced back to Ms O'Sullivan and it appeared she may well have been home and hosed. However, the dramatic emergence of a Garda document which described Sgt McCabe as "a paranoiac" who had lost control of his Garda station means she may not be out of the woods after all.

Sgt McCabe's counsel Michael McDowell said he wanted the former commissioner back for further questioning.

He is now weighing up whether to make a formal application in this regard.

Being recalled would be something of an embarrassment for Ms O'Sullivan, but it's also clear from yesterday's hearing that other questions linger.

One prime example is a somewhat unusual meeting Ms O'Sullivan had with her lead counsel Colm Smyth SC on May 21, 2015. This occurred less than a week after a major row erupted at the commission over Ms O'Sullivan's legal instructions to challenge Sgt McCabe's motivation and credibility.

Mr Smyth had also said in error he was challenging Sgt McCabe's integrity too.

All hell broke loose and the legal team had to work around the clock that weekend to draft a letter for the commission outlining what they were basing their legal strategy on.

But if the evidence to date is to be believed, the former commissioner did not discuss these matters in any great detail when she met Mr Smyth. Given the stakes involved, this seems baffling.

The commissioner did not brief her legal team face to face ahead of the commission starting.

Her instructions were imparted via liaison officer Chief Supt Fergus Healy.

After the row over the legal strategy, Ms O'Sullivan's solicitor Annmarie Ryan, recognising that the situation was "political dynamite", desperately sought a face-to-face consultation.

But she was told Ms O'Sullivan was too busy.

The former commissioner has insisted she was available and was never given the impression a consultation was being sought.

Things got even curiouser when Ms O'Sullivan sought a "meet and greet" with Mr Smyth, but did not want any of her other lawyers to come too. Ms Ryan said she wasn't put out, but would have expected to have been asked to attend.

Ms O'Sullivan said she couldn't recall the specific details of the meeting.

Yesterday, Mr Smyth said he had been reluctant to meet a client in the absence of an attending solicitor who could take notes. "That is the cardinal rule," he said.

But he agreed to go on the basis that it was not a legal consultation.

A general conversation ensued, he said, touching on her appointment as commissioner and family matters. There may have been some mention about the commission, but no discussion backwards or forwards about what was happening, he said.

The barrister also said Sgt McCabe's name was never mentioned, nor the names of the other officers Mr Smyth was representing.

Irish Independent

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