The DPP ruled out a prosecution in the Miss D case in 2007, saying there was no evidence an offence had been committed. Sgt McCabe wanted the DPP’s instructions to be given to Miss D’s family, but this was not possible because of the DPP’s policy at the time, the tribunal heard.
Senior counsel Michael McDowell, representing Sgt McCabe, said it was his client’s case that after it was decided that the case should not be part of the terms of reference for the O’Higgins Commission, it “was dragged back in a collateral way to embarrass him [McCabe]”.
“His motivation, his credibility, and from time to time, his integrity, was stated to be an issue,” Mr McDowell said. This was done “to make it appear that none of his complaints were genuine but they were all concocted with a view to getting back at An Garda Síochána”.
Under cross-examination, former Department of Justice secretary general Noel Waters said he had no recollection of seeing an email from the assistant secretary general, Michael Flahive, on Friday, May 15, 2015.
The email outlined that counsel for the Garda commissioner had “raised as an issue in the hearings an allegation made against Sgt McCabe”.
“I think it is important to point out that neither I nor anybody else at the department had any idea of what was happening at the commission of inquiry,” Mr Waters said.
Mr Waters said the commission of inquiry hearings were held in private.
Mr McDowell said phone records showed a 14-minute call to Mr Waters’ number from commissioner Nóirín O’Sullivan during a recess at the O’Higgins Commission, during which the commissioner’s legal team sought clarification of their instructions.
“I have to say in response that I have no recollection of that at all,” Mr Waters said. The witness said he did accept phone records showed he was called from the commissioner’s landline.
Ken Ruane, head of legal affairs and legal adviser to the commissioner, said the issue of Sgt McCabe’s motivations was never brought to his attention.
Tribunal barrister Pat Marrinan said that head of Garda human resources, John Barrett, had made a statement where he said Cyril Dunne, a senior Garda civil servant, told him: “We are going after him [Sgt McCabe] in the commission”.
This allegedly occurred before a February 2015 meeting between Sgt McCabe and senior Garda officers, including the commissioner.
“I indicated my shock and dismay that such an approach would be taken at the O’Higgins Commission,” Mr Barrett said in his statement to the tribunal.
Mr Marrinan said Mr Dunne denied saying this to Mr Barrett.
Earlier in the day, the tribunal was told a draft letter from the Garda commissioner to the Department of Justice about the legal strategy pursued by the commissioner at the O’Higgins inquiry was written by a department official.
Mr Waters said there was a lot of back-and-forth in drafting letters to the department.
The tribunal also heard that Ms O’Sullivan had prepared a draft statement for then-justice minister Frances Fitzgerald to use in answering Dáil questions, and enclosed the legal advice she had received about Sgt McCabe at the O’Higgins commission.
“You may choose to put this on the record in the house. If you do, I would request you state that I volunteered this document to you in the public interest,” the commissioner wrote.