Former Garda commissioner Nóirín O’Sullivan consulted the Department of Justice before confirming that her legal team should attack the motivation of Garda whistleblower Maurice McCabe at the O’Higgins Commission.
The Charleton Tribunal has heard that on May 15th, 2015, the legal team acting for Ms O’Sullivan contacted the then commissioner to get her confirmation that it should question Sgt McCabe’s motivation.
Ms O'Sullivan in turn contacted the then assistant secretary at the department, Ken O'Leary, to discuss the matter. An email was also sent to the private secretary of the then minister, Frances Fitzgerald, after the department was contacted by the Attorney General's office.
On the day in question, counsel for Sgt McCabe, Michael McDowell SC, asked whether the Garda commissioner was attacking his client’s motivation.
A recording of Colm Smyth SC, counsel for the former Garda Commissioner, confirming at the commission that he had been instructed to question the motivation and integrity of Sgt McCabe, was played at the Charleton Tribunal, which resumed public hearings on Monday.
The issue of the knowledge of the then minister for justice Frances Fitzgerald on the attitude adopted by Ms O’Sullivan at the commission, which sat in private, almost led to the collapse of the Government late last year.
In a statement to the tribunal, Mr O’Leary said Ms O’Sullivan had asked him whether, based on his experience, anything occurred to Mr O’Leary of which she should be mindful.
He suggested Ms O’Sullivan should be guided by her legal advisers but also mentioned the “need for sensitivity in relation to protecting the position of Sgt McCabe, the position of other people at the commission against whom serious allegations had been made”, and other matters.
Tribunal barrister Kathleen Leader said that Ms Fitzgerald, in her statement to the tribunal, had said she believed it would have been totally improper for her to interfere with the commission of investigation and the email she had received on the matter made it clear she had no function. She did not recollect receiving it, she said. She did not know what legal strategy was being pursued by the Garda commissioner "nor had I any role in it."
The tribunal is investigating whether a false allegation of sex abuse against Sgt McCabe might have been raised at the commission hearings. Ms Leader said during a lengthy opening statement that there was no evidence of this.
The tribunal has heard that Sgt McCabe was upset that the details of a finding by the Director of Public Prosecutions that no charges should be brought against him arising from a 2006 allegation of sexual abuse were not circulated to those who knew of the allegation.
The DPP entirely dismissed the 2006 allegation and said that, even if it were true, it would not constitute a crime. However standard procedure prevented the circulation of the comprehensive nature of the DPP’s decision.
Ms Leader read from the transcripts of the commission where Supt Noel Cunningham said that he had known Sgt McCabe for maybe 20 years and that he had been told by him that after the false 2006 allegations, Sgt McCabe didn’t trust anybody any more.
The tribunal heard that at a sitting of the commission later in 2015 Mr Smyth said he had been mistaken when he said in May that it was his instructions to attack Sgt McCabe’s integrity. However it was still his instructions to attack his motivation and credibility in relation to allegations of corruption and malpractice that had been made by Sgt McCabe against senior officers.
The tribunal will sit again on Friday.
