by Gerard Cunningham
Garda whistleblower Sgt Maurice McCabe was forced to retreat into his garda station following a confrontation with family members of the young woman who alleged he sexually assaulted her, the Charleton tribunal heard.
In 2007 the DPP recommended against bringing charges in the case, saying there was no evidence an offence had been committed. The tribunal is looking at claims there was a smear campaign against Sgt McCabe
Mr Justice Peter Charleton said that following the DPP's decision there had been two incidents involving members of Ms D's family, and at one point Sgt McCabe "retreated to the station and ran up the stairs".
In a letter dated February 25, 2008 to Superintendent Michael Clancy, who was the district officer for Bailieboro, Co Cavan, Sgt McCabe referred to the incidents.
An investigation was subsequently launched. The tribunal heard the letter contained “serious allegations” against Ms D’s father, who was a garda colleague of Sgt McCabe.
Supt Noel Cunningham, who was then an inspector, was instructed to investigate the issues raised in Sgt McCabe’s letter. He had previously investigated the sex assault allegations made against Sgt McCabe in 2007.
He told the tribunal he did not believe it was appropriate to appoint him to the 2008 investigation, as he knew both Sgt McCabe and Mr D well but he didn’t raise an objection.
Supt Cunningham said that some of the allegations raised by Sgt McCabe were “quasi criminal” and couldn't be ignored, even if Sgt McCabe had not wanted an investigation launched against Mr D.
The tribunal heard that when Supt Cunningham met him to deal with the allegations Sgt McCabe talked about anything but the claims. Around this time Sgt McCabe went on sick leave and was subsequently transferred to Mullingar Garda Station soon afterwards.
The witness said that Sgt McCabe had made complaints against a number of members still serving in the Bailieboro District. He said he Sgt McCabe took the transfer “to accommodate the investigation” of these complaints.
He said he believed Sgt McCabe had stepped down as sergeant in charge of the garda station “of his own volition”.
Supt Cunningham said that when Sgt McCabe applied for the transfer to another area he went to his office and asked him to reconsider. He said he told Sgt McCabe he had no difficulty with him remaining on as Sergeant in Charge.
"I went to him in his own office and I asked him to reconsider, because I was quite happy to work with him," Supt Cunningham said.
The superintendent said that Sgt McCabe "appeared very stressed", and he suggested that the sergeant could see a welfare officer.
Mícheál P O'Higgins SC, on behalf of the garda commissioner, put it Supt Cunningham that he later wrote to Sgt McCabe "in friendly terms" updating him on events in Cavan since his transfer.
Supt Cunningham confirmed to Mr O'Higgins that he had not received instructions from former Garda Commissioner Martin Callinan, Commissioner Noirin O'Sullivan, Supt David Taylor or anyone in senior garda management to ignore a 2013 letter from HSE social worker Keara McGlone about the investigation.
Asked if he took a deliberate decision to “wilfully not respond to Keara McGlone's letter in the knowledge it would trigger an earthquake in the HSE” Supt Cunningham replied: “absolutely not".
Asked if he took part in a smear campaign against Sgt McCabe, he again replied: "Absolutely not."
Supt Cunningham said he was never motivated by any animus to Sgt McCabe, and said he would not describe Sgt McCabe as "a thorn in his side". He said this was a phrase that had been used by Michael McDowell SC, the barrister for Sgt McCabe.
A retired garda superintendent knew that an allegation of sexual assault against garda whistleblower Sgt Maurice McCabe "could not be right" when he first saw it, the Charleton tribunal has heard.
Retired Chief Superintendent James Sheridan told tribunal investigators that the allegations, in a referral sent to gardai from Tusla, could not be right, barrister Michael McDowell said reading from an interview between Sheridan and tribunal investigators.
The tribunal is looking at whether there was a smear campaign against Sgt McCabe, who is represented by Mr McDowell.
In May 2014, a Tusla notification was sent to Bailieboreo Garda Station after Ms D, who in 2006 had made the allegation of child abuse against Sgt McCabe, sought counselling. The notification contained an inaccurate allegation for serious sexual abuse from an unrelated case.
Supt Leo McGinn wrote to his superior, Chief Supt James Sheridan, on receipt of the Tusla notification, recommending that gardai should review the investigation, but with officers from outside the Cavan-Monaghan division or from the cold case unit at the National Bureau of Criminal Investigation (NBCI).
Supt McGinn wrote that there was no copy of the investigation file in the Bailieboro District, and it was believed to be held in Monaghan Garda Station.
Tribunal barrister Mr Diarmaid McGuinness SC asked why the witness wanted to re-investigate a case where the DPP had made a direction not to prosecute because there was no evidence of an offence.
"My experience and my firm opinion is that matters, criminal matters such as this should be investigated by gardaí, perhaps from superintendent level or above, from outside the division where the allegation is made or where parties live," Supt McGinn said.
Supt McGinn said it was a "commonly held view in Bailieboro" that the case should have been investigated by officers from outside the district."
On the day the referral was received, the then minister for justice Alan Shatter had resigned, for reasons linked to the Guerin report into the treatment of Sgt McCabe. Given the “media maelstrom” taking place around these events and the possibility of "a tribunal down the road" he thought it best that all issues involving the Garda should be reviewed.
"Seeing what was going on in the outside world, I though it best to have the whole file reviewed," he said.
The superintendent said he had "no axe to grind" with Sgt McCabe, adding “I never met the man”.
Supt McGinn said that after he showed a Tusla notification report containing an erroneous allegation to Mr D, the officer said he would have to speak to his daughter.
Mr D later came back to tell the superintendent that the allegation in the notification was incorrect.
Supt McGinn said he contacted Tusla to let them know the notification was incorrect, but he did not have a note of the call or who he spoke to.
A memo written on 16 May 2014 by counsellor Laura Brophy said that when she spoke to the superintendent, he had not been informed of the error.
Supt McGinn said he did not know why Sgt Tony Byrne, the liaison officer who would have dealt with the Tusla notification, had not seen the document.
At a meeting in Mullingar in July 2014 attended by Supt McGinn, Chief Supt Sheridan and Assistant Commissioner Kieran Kenny, the confusion over different allegations and "cut and paste errors" was discussed. Minutes of the meeting were sent to the garda commissioner's office at garda HQ.