By Gerard Cunningham
A garda witness has told the Charleton Tribunal that former Commissioner Nóirín O'Sullivan did not contribute to a document which outlined legal instructions to challenge the motivation of garda whistleblower Sgt Maurice McCabe.
A draft document of instructions that came out of a legal meeting May 2015 wrongly alleged that complaints by Sgt McCabe were being made to put pressure on a senior officer to release the directions of the DPP in directing no prosecution in an alleged sexual assault case.
The instructions referred to an allegation that Sgt McCabe had told Supt Noel Cunningham in August 2008 that he intended that the only reason he made complaints was to force his superior to allow Sgt McCabe to have the DPP directions given to him.
Days later the legal team for the Garda told the O'Higgins Commission of Investigation that it would be challenging the integrity of Sgt McCabe. As a result of this Sgt McCabe revealed for the first he had made an audio recording of the meeting at which the alleged admission was made, which showed that it had not happened.
A later report of the meeting which was prepared by Supt Noel Cunningham and sent to his superior, Chief Supt Colm Rooney, confirmed Sgt McCabe's account and the recording.
"If nobody ever said that how did it get into a letter drafted by a lawyer?" asked tribunal chairman Mr Justice Peter Charleton.
Chief Supt Healy told the tribunal that the Garda Commissioner's legal team were dealing with Supt Cunningham and Chief Supt Rooney in drafting the document. He said the garda commissioner was not.
Tribunal barrister Kathleen Leader said that the proposition was being put to Sgt McCabe at the O'Higgins inquiry that he was blackmailing a senior officer, while he was being publicly supported as a whistleblower.
Chief Supt Healy, who was described by Ms Leader as "the commissioner's eyes and ears" at the O'Higgins inquiry in 2015, said the inquiry was seen as an opportunity "to get to the truth of everything and to deal with the fallout from that."
The tribunal is examining whether false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by then Garda Commissioner Noirin O’Sullivan to discredit whistleblower Sgt Maurice McCabe at the O'Higgins Commission of Investigation.
Chief Supt Healy said his instruction from the garda commissioner was to "pursue the truth and establish the facts". Ms Leader said it seemed the first documented record of this instruction was in 2016.
The chief superintendent said he was "one hundred per cent sure" that he received this instruction from the commissioner in a conversation before the O'Higgins inquiry began sittings in May 2015.
In 2007 the DPP directed no prosecution after a woman, identified as Miss D, made allegations against Sgt McCabe, saying that there was no evidence an offence had occurred. The chief superintendent said that "everything changed" after Sgt McCabe's request to have the DPP's direction in the Miss D case circulated was refused in 2007.
He said that the barristers said to him they needed to get instructions from the commissioner in relation to Sgt McCabe's motivation and credibility.
On the evening of 14 May 2015, Chief Supt Healy said he spoke with the garda commissioner and told her "Counsel had formed the view there was a series of issues here that needed to be examined and the motivation in respect to those issues was something they needed to explore."
"If it was advice from counsel she was inclined to agree and give permission to go ahead," Chief Supt Healy told the tribunal.
The following day at the O'Higgins Commission, the garda commissioner's legal team were challenged to confirm that they were acting on the instructions of the commissioner.
The Commission adjourned, during which time Chief Supt Healy spoke with the Commissioner O'Sullivan to confirm the legal instructions. Ms Leader said that phone records appeared to show that the garda commissioner phoned Chief Supt Healy immediately after she telephoned the Department of Justice.
Chief Supt Healy said the Garda Commissioner wanted an adjournment of the Commission if possible. But she said the legal team were to pursue instructions as advised by counsel otherwise.
"The situation was difficult. It was tense," Chief Supt Healy said.
In a telephone call later that evening, Chief Supt Healy told commissioner the legal team was available to meet her over the weekend, but she told him she was "otherwise engaged".
The chief superintendent was also asked about a note taken by solicitor Annmarie Ryan which referred to "political dynamite".
"I would not have used those words but certainly with what had happened during the day it was a very explosive issue," Chief Supt Healy said.