Thursday 16 August 2018

Former commissioner fails to convince despite holding firm at McCabe inquiry

Noirin O'Sullivan stood her ground at Dublin Castle, but some of her answers defied logic, writes Shane Phelan

Former Garda commissioner Noirin O’Sullivan (Niall Carson/PA)
Former Garda commissioner Noirin O’Sullivan (Niall Carson/PA)
Shane Phelan

Shane Phelan

Former Garda Commissioner Noirin O'Sullivan's time in the witness box at Disclosures Tribunal this week was remarkable in a number of respects.

On one level it was a bravura performance in which she managed largely to hold firm against an onslaught of questions, refusing to concede ground at Dublin Castle.

But on another level it was three days peppered with extraordinary testimony in which she attempted to distance herself from the events which unfolded at the O'Higgins Commission in 2015.

Many of the responses she gave prompted only further questions and occasional bouts of head scratching from onlookers. There was a sting in the tail too when it emerged on Thursday that Ms O'Sullivan may have to be recalled to give evidence about a previously undisclosed Garda document which labelled whistleblower Maurice McCabe as "a paranoiac" who had lost the control of his station.

In its current module the tribunal is investigating whether false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by Ms O'Sullivan to discredit Sgt McCabe at the commission, which investigated Garda malpractice in the Cavan/Monaghan division.

While there has been no evidence to suggest the former commissioner used a false allegation of sexual abuse, the tribunal is still examining whether other unjustified grounds were used.

Central to its inquiries is the approval Ms O'Sullivan gave to her legal team to challenge Sgt McCabe's motivation and credibility. For months before the commission she had been publicly supportive of Sgt McCabe. All of a sudden she was challenging him in private. This was the course of action advised by her barristers after a consultation meeting attended by a number of gardai, but not Ms O'Sullivan.

At the meeting they were informed about the Ms D case, where Sgt McCabe had faced an allegation of sexually assaulting the daughter of a colleague, and later cleared.

Sgt McCabe had sought access to the full DPP directions in the case, but was refused.

The lawyers were informed there had been a change in Sgt McCabe after this and that he had started making unwarranted complaints against senior officers, including allegations of corruption.

Ms O'Sullivan had a limited knowledge of these events but after weighing up the "unprecedented dilemma" she was faced with, gave the go-ahead.

"I was very satisfied that the advices were coming from a competent and professional legal team," she said.

One of the things the legal team later did was construct a 20-point letter for the commission, setting out the basis under which they were challenging Sgt McCabe. This included a false allegation Sgt McCabe had blackmailed a senior officer in a bid to get access to the DPP directions.

Bizarrely, Ms O'Sullivan did not request a copy of the letter from her legal team. Almost immediately after it was issued, Sgt McCabe told his superintendent in Mullingar he wished to step down as sergeant in charge of the traffic unit there and that he felt "under threat" from Ms O'Sullivan.

In one jaw-dropping piece of testimony, the former commissioner said she was "at a loss" to understand the connection between Sgt McCabe's resignation and what was transpiring at the commission. Sgt McCabe's counsel Michael McDowell put it to her that she had "an extraordinary lack of curiosity" about what her lawyers had put in the letter, which had been sent on her personal authority.

"In the circumstances then, it never occurred to you to say, can I see the letter you sent?" Mr McDowell asked her.

"Not at that time, chairman, because the letter was part of the proceedings before the commission," she responded.

Another curious aspect of her account of events is her failure to have a face-to-face meeting with her legal team at the outset of the commission.

Her solicitor Annmarie Ryan, of the Chief State Solicitor's Office, recognised the potential controversy the legal strategy could cause. It had already given rise to significant ructions on the second day of the commission. Ms Ryan pressed for a meeting that weekend. She was desperate for a consultation but could not secure one, being told by the commissioner's liaison officer, Chief Supt Fergus Healy, that Ms O'Sullivan was busy.

Ms O'Sullivan said this week she had been available, but was never given the impression a consultation was requested. However, she did request a "meet and greet" with her lead counsel, Colm Smyth, during the early stages of the commission.

Asked about this, she said she couldn't remember the specific details of the meeting.

By that point, objections had been raised by Sgt McCabe's legal team and Mr Justice Kevin O'Higgins had issued a ruling that the whistleblower's motivation for making complaints was very much peripheral to the inquiry.

Despite the fact the strategy she had endorsed was in considerable difficulty, there was no discussion backwards or forwards about what had happened at the commission, according to Mr Smyth.

On the second day of the commission, Mr Smyth had said he was challenging Sgt McCabe's integrity. This was not something he had been instructed to do and he later accepted he had said this in error. But when pressed by Mr McDowell that her counsel had acted in the complete opposite way to her wishes, Ms O'Sullivan would not accept that he had. The question was posed in a number of different ways, but she would not concede the point. Indeed the response she gave defied logic.

"I think the legal team did what they were instructed by me to do," she said.

Ms O'Sullivan was also steadfast in her belief that there was no conflict of interest in her legal team also representing a garda who Mr McDowell described as "extremely hostile" to Sgt McCabe. It was put to her by Mr McDowell that her desire for an impartial exploration of the facts was not compatible with her legal team also representing Supt Noel Cunningham. Again Ms O'Sullivan would not concede the point, insisting that if there had been a conflict of interest she had no doubt this would have been brought to her attention.

Sunday Independent

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