Charleton Tribunal: Commissioner says she faced ’almost impossible dilemma’ on McCabe

The retired commissioner gave evidence today before the Charleton tribunal, which is examining whether unjustified grounds were inappropriately relied upon by the commissioner to discredit Sgt McCabe at the O’Higgins Commission of Investigation.

The O’Higgins Commission was set up to look at Sgt McCabe’s complaint of garda malpractice in the Cavan/Monaghan Division.

"I was faced with an almost impossible dilemma. His evidence had to be tested," Ms O’Sullivan told tribunal barrister Kathleen Leader.

Ms O’Sullivan said there was no question that Sgt McCabe had "any ulterior motive or bad motive or mala fide" [bad faith] in making his complaints about Garda conduct.

"I never believed Sgt McCabe was acting out of anything other than appropriate and proper concerns," she said.

Ms O’Sullivan said that Sgt McCabe "had identified without a doubt shortcomings in investigations that were unacceptable and did not do justice to victims".

The former commissioner said her support for Sgt McCabe "was well known internally in the organisation and it was well known externally as well".

Ms O’Sullivan said she was "absolutely committed" to supporting Sgt McCabe in dealing with workplace issues. At the same time, Sgt McCabe was a witness at a Commission, and his evidence would have to be tested.

"I was very aware that Sgt McCabe’s perception would change of me, and of what I was trying to do for him," Ms O’Sullivan said.

Ms O’Sullivan said that on the second day of the Commission’s hearings on May 15, 2015, she spent the morning dealing with security issues ahead of a visit by the Prince of Wales, and there had been a series of arrests and seizures that morning.

That afternoon, she got a telephone call from Chief Supt Fergus Healy, the liaison with the Commission, after he had attempted to reach her several times.

"A legal argument had arisen at the Commission and there was a requirement for me to reconfirm my instructions," Ms O’Sullivan said.

Ms O’Sullivan said that it sounded to her as if an adjournment would be a good idea, after a row broke out and counsel for Sgt McCabe wanted to know if instructions to the Garda legal team had come from the commissioner to challenge Sgt McCabe’s credibility and integrity.

However she was told an adjournment was not possible. "My understanding from speaking with Chief Supt Healy was there was a lot of heat in the room," Ms O’Sullivan said.

"Counsel for Sgt McCabe required to know the instructions were coming from me. I was very happy to give those instructions," Ms O’Sullivan said.

Ms O’Sullivan said she was happy to reconfirm the instructions she had given, because the legal advices she had received from her legal team had not changed.

After the two-minute conversation with Chief Supt Healy, the garda commissioner spoke by telephone to Noel Waters, the secretary general at the Dept of Justice, for 14 minutes.

Ms O’Sullivan said she did not remember the specifics of the call, but it would have been mostly about the security and policing issues around the visit by the Prince of Wales. She would also have discussed details of a memorial service taking place the following day.

Because issues in relation to Sgt McCabe "were making their way into the public domain very quickly" she said she would also have mentioned this issue.

Ms O’Sullivan said that she was following her legal counsel’s advices that they had to explore why Sgt McCabe was making complaints, but said she had not given legal instructions to challenge the sergeant’s integrity at the Commission.

"I have never ever considered Sgt McCabe to be malicious. I have no reason to challenge or impugn his integrity. It was never about the man. It was about testing the validity and veracity of the allegations," Ms O’Sullivan said.

She said she did recall a telephone conversation with Dept of Justice deputy secretary, Ken O’Leary, on May 15, but did not recall the detail of the conversation.

Ms O’Sullivan said she in her telephone calls to the Dept of Justice, she "was not seeking instructions or seeking to consult, I was merely informing him of what had happened".

She said her liaison officer, Chief Supt Healy, would have been aware of her views about Sgt McCabe "and that it was not about Sgt McCabe, it was about putting the facts before the Commission".

On the Monday after the legal row, Sgt McCabe asked to be relieved of his post as sergeant-in-charge of the traffic unit in Mullingar. Sgt McCabe told his superiors he could not go into details about the reasons because be was bound by confidentiality agreements, but felt "under threat" and if anything went wrong "they would come down on him like a ton of bricks."

Ms O’Sullivan said she was informed of Sgt McCabe’s request by a text from an assistant commissioner, and she had been aware that events at the Commission of Investigation could "change his perception" of her.

She said she did not know what Sgt McCabe meant by "under threat". She said she had been in contact with Sgt McCabe previously, and felt she had a good rapport with him.

The commissioner said that it was "established practice" for one legal to team to represent both the garda commissioner and other senior officers at the Commission unless conflicts arose between them.

Ms O’Sullivan said she did not investigate a mistake in the instructions provided in a written document to the Commission of Investigation as it was not her job. It was for the Commission to investigate and she could not interfere in its work. The errors emerged after Sgt McCabe provided the Commission with transcripts of a meeting he had with a senior officer.

Ms O’Sullivan’s evidence resumes today/tomorrow (Tues).