Colm Smyth SC said no one ever pointed out to him that he had been given mistaken information, which was included in a legal document to the inquiry on May 18, 2015 and used by him in cross-examining Sgt McCabe, and repeated in a submission a month after.
Mr Smyth told the Disclosure Tribunal yesterday that he only discovered the mistake when it was revealed at the inquiry on June 24 and said it became “blatantly obvious” that a significant error had been made.
The Disclosures Tribunal is examining if former commissioner Nóirín O’Sullivan used unjustified grounds to discredit Sgt McCabe at the O’Higgins commission, which investigated his allegations of poor policing and corruption in Cavan/Monaghan.
The mistake was contained in a legal document, sought by Mr Justice Kevin O’Higgins, which set out the factual basis of the Garda strategy to challenge the credibility and motivation of Sgt McCabe.
The document was supplied to the O’Higgins inquiry on May 18, 2015, and the mistake was put to Sgt McCabe in cross-examination by Mr Smyth.
The mistake said Sgt McCabe had made a complaint “against” his boss, Supt Michael Clancy, in order to secure the release of full DPP directions in a case involving Sgt McCabe — when in fact he had made the complaint “to” Supt Clancy.
The case, known as the Ms D case, involved an allegation of child sexual abuse against Sgt McCabe.
Following an investigation, the DPP ruled that there was no crime and directed against prosecution.
Sgt McCabe sought the assistance of his senior officers to secure the release of the DPP’s full directions to the family of Ms D.
Mr Smyth, along with two junior counsel, represented four senior officers — Chief Supt Colm Rooney, Supt Noel Cunningham, Supt Clancy and former commissioner Martin Callinan — at the O’Higgins inquiry.
Sgt McCabe had made serious allegations against them.
Mr Smyth also represented Ms O’Sullivan.
The Disclosures Tribunal has been told that Chief Supt Rooney, Supt Cunningham and Supt Clancy had input into the legal document drawn up by counsel on the weekend on May 15-18.
Questioned for a second day by Michael McDowell SC, for Sgt McCabe, Mr Smyth said the document was drafted “strictly in accordance with instructions”.
Referring to the key wording in the document, he said: “I was left in no doubt that it was ‘against’ rather than ‘to’.”
Mr McDowell said the mistake was repeated in a June 11 submission by counsel to the commission.
Mr Smyth said he only became aware of the mistake when it emerged on June 24.
He said he was not alerted beforehand and that, if he had, he “certainly would have acted in a different way”.
On June 24, Mr Justice O’Higgins revealed transcripts of recordings made by Sgt McCabe of the 2008 meeting with Supt Noel Cunningham in Mullingar, which showed he had made a complaint to, rather than against, Supt Clancy.
When Supt Cunningham was questioned that day, he confirmed this, which was backed up by his report of the meeting.
The tribunal previously heard that Supt Cunningham’s report had been attached to the May 18 submission, but the contradiction between his report and the submission was apparently not spotted by anyone.
Asked by Mr McDowell how he reacted to developments on June 24, Mr Smyth said:“It became blatantly obvious that a significant mistake had been made.”
Mr McDowell said it was a serious mistake.
Mr Smyth agreed, saying: “You can’t put something to a witness that is clearly wrong. You have to work on proper and sound instructions, and not make things up. It was wrong and shouldn’t have been wrong.”
Mr McDowell also questioned him about excerpts of an unpublished 2010 internal Garda report into Sgt McCabe’s allegations, which said that the behaviour of Sgt McCabe “would tend to illustrate a level of paranoia”.
Mr Smyth said he saw the document, but did not “deploy” it at the inquiry.