Friday 14 December 2018

O'Sullivan faces being recalled to tribunal over 'offensive' memo

Document said McCabe was paranoid and had lost control of his station

Michael McDowell SC, counsel for Sgt McCabe, said he would ‘like to have her back’
Michael McDowell SC, counsel for Sgt McCabe, said he would ‘like to have her back’
Shane Phelan

Shane Phelan

Former Garda commissioner Nóirín O'Sullivan faces the prospect of being recalled to the Disclosures Tribunal following the discovery of a document that described whistleblower Maurice McCabe as "a paranoiac".

Sgt McCabe's legal team is to consider making a formal application to get Ms O'Sullivan back in the witness box to explain what knowledge she had of the Garda document. Ms O'Sullivan concluded three days of evidence on Wednesday.

Michael McDowell SC, counsel for Sgt McCabe, said he would "like to have her back" and tribunal chairman Mr Justice Peter Charleton said he would consider the issue if an application was made.

"It may be necessary for commissioner O'Sullivan to return," the judge said.

The briefing document was supplied to a barrister who represented Ms O'Sullivan and other senior gardaí at the O'Higgins Commission in 2015.

It described Sgt McCabe as "a paranoiac" who had lost control of his station and should not be put back into it.

Mr McDowell described it as "highly offensive and damaging material" which his client saw for the first time on Wednesday night. The document was circulated by the legal team for the three barristers - Colm Smyth SC, Garret Byrne BL and Michael MacNamara BL - who represented Ms O'Sullivan at the commission.

The four-page document was made up of extracts from the unpublished Byrne/McGinn report, a review conducted between 2008 and 2010 of complaints made by Sgt McCabe.

The vast majority of his 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 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 was dependent on briefings from three senior gardaí for background information on Sgt McCabe.

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 was entirely dependent on what three people told them," said Mr McDowell.

Meanwhile, Mr Smyth told the tribunal he made an error when he said he was challenging Sgt McCabe's integrity at the commission.

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

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.

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

He also denied suggestions by tribunal counsel Diarmaid McGuinness that he had set out to "attack" Sgt McCabe.

Mr Smyth apologised for getting emotional as he described difficulties he had at the outset of the commission. He said he had been up against a legal team who had months to prepare, but he had just 48 hours and was working "on the hoof".

Mr Smyth also said he should have offered an apology to Sgt McCabe over a letter to the commission that incorrectly stated Sgt McCabe made a complaint against a senior officer to pressure him into releasing DPP directions in the Ms D case, where the whistleblower was cleared of sexually assaulting the daughter of a colleague.

"It was remiss of me not to apologise to Sgt McCabe in relation to that matter," he said.

He said he regretted that the incorrect information was included in the letter. "It was done on the explicit instructions of the client who got it wrong," he said. The barrister was not asked for the identity of the client.

Later, there were some testy exchanges during cross examination by Mr McDowell. At one point, Mr Smyth told Mr McDowell not to raise his voice at him.

At another stage, Mr Justice Charleton said he didn't want things going "off the rails" or for there to be "a tribunal into this tribunal".

The cross examination continues today.

Irish Independent

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