Ex-Justice boss has 'no recollection' of call
Former Garda commissioner Nóirín O'Sullivan had a conversation with the then-acting secretary general of the Department of Justice, Noel Waters, at a crucial moment during the O'Higgins Commission, phone records indicate.
However, neither Mr Waters nor Ms O'Sullivan can remember the 14-minute call on May 15, 2015.
It occurred during a brief recess of the commission.
Ms O'Sullivan's lawyers were asked by the commission to confirm that they had been instructed to attack Sgt McCabe's motivation, and the commission adjourned briefly so that she could be contacted.
The tribunal had previously heard Ms O'Sullivan "sought time to speak to the DoJ [Department of Justice]" before confirming her original instructions. The department has maintained neither it nor former tánaiste Frances Fitzgerald had prior knowledge of, or input into, the legal strategy.
Mr Waters said he could not remember the call, and insisted the department had played no role in the strategy.
He said it would have been "inappropriate" for the department to get involved.
When it was put to him by tribunal counsel Diarmaid McGuinness that it was reasonable to assume he and Ms O'Sullivan discussed what was occurring at O'Higgins that day, Mr Waters responded: "I have to say in response that I have no recollection of that at all."
Mr Waters also said he had "no recollection" of an email written by the department's assistant secretary Michael Flahive to Ms Fitzgerald on May 15, 2015, informing her of the issue at the tribunal.
Mr McGuinness pointed out that an email from Mr Waters's private secretary to Mr Flahive stated its contents had been "noted" by the acting secretary general.
But Mr Waters replied: "I am not saying I did not read it. I am saying I have no recollection of it."