AN ATTEMPT TO introduce the garda handling of an historic abuse allegation made against garda whistleblower Sergeant Maurice McCabe at the O’Higgins Commission was done solely for the purpose of embarrassing the sergeant, the Charleton tribunal has been told.
The DPP ruled out a prosecution in the ‘Miss D’ case in 2007, saying there was no evidence an offence had been committed.
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 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,” 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 Siochana”.
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, 15 May 2015.
The email outlined that counsel for the Garda commissioner had “raised as an issue in the hearings an allegation made against Sergeant 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.
Waters said the commission of inquiry hearings were held in private.
McDowell said that phone records showed a 14-minute call to Waters’ number from Garda Commissioner Nóirín O’Sullivan during a recess at the O’Higgins commission during which the Garda Commissioner’s legal team sought clarification of their instructions.
“I have to say in response that I have no recollection of that at all,” Waters said.
The witness said that he did accept that phone records showed he was called from the Garda Commissioner’s landline.
‘Going after’ McCabe
The following Monday, 18 May 2015, a reply to the email outlining the Garda legal strategy was sent stating that it had been noted by Waters, who was acting secretary general at the time.
“I’m not saying I didn’t read it, I’m saying I have no recollection of it,” Waters said.
Ken Ruane, the head of legal affairs and legal advisor to the garda commissioner, said that the issue of 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 that Cyril Dunne, a senior Garda civil servant, told him: “We are going after him [McCabe] in the Commission”.
This allegedly occurred before a February 2015 meeting between 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,” Barrett said in his statement to the tribunal.
Marrinan said that Dunne denied saying this to Barrett.
Earlier, the tribunal heard that Commissioner O’Sullivan had prepared a draft statement for Justice Minister Frances Fitzgerald to use in answering questions in the Dáil, and enclosed the legal advice she had received about Sergeant 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.
Waters said he could not recall if he was aware at the time that the garda commissioner was in favour of publishing her legal advice.
He disagreed with McDowell that a historic allegation of sexual assault against Sergeant McCabe was “common knowledge”, saying that it wouldn’t have been known among many people, but he agreed that there was knowledge of the allegation in the department at the time the O’Higgins Commission was established.
The DPP had decided against prosecuting in the case in 2007, noting that there was no evidence an offence had actually occurred.
Waters said he imagined that the allegation would have been known to then Minister Fitzgerald.