’My conscience will remain clear,’ says Nóirín O’Sullivan’s barrister on Sgt McCabe’s cross-examination

A senior barrister who challenged garda whistleblower Maurice McCabe at the Commission of Investigation into allegations of garda malpractice has said his conscience is clear.

Colm Smyth SC and two junior barristers represented former Garda Commissioner Nóirín O’Sullivan and certain senior officers at the 2015 O’Higgins Commission of investigation into complaints about garda conduct in the Cavan/Monaghan division.

The Charleton Tribunal is examining whether unjustified grounds were inappropriately relied upon by the former commissioner to discredit Sgt McCabe at the commission.

Mr Smyth was cross-examined on behalf of Sgt McCabe by Michael McDowell SC, who asked if it was wrong to question Sgt McCabe’s motivation at the private hearings.

"I had a duty to defend the interests of my client, regardless of the consequences for myself. You are bound by the same duty," Mr Smyth said.

He said that, if he was asked would he do it again, yes he would, as he would still have to defend his clients.

"My conscience will remain clear," Mr Smyth said.

Colm Smyth. Pic: Rollingnews.ie

Mr Smyth said he did not like "military terms" such as "assault" and "assail" to describe his questions at the commission, as the media would report he had attacked Sgt McCabe. He said he had "probed" the sergeant’s evidence.

Mr Smyth said he put the case he was asked to by the Garda Commissioner, who asked him to test the truth of Sgt McCabe’s allegations.

Mr McDowell asked if a letter drafted by the legal team handed to the commission on May 18, 2015, setting out the commissioner’s case was drafted strictly in accordance with instructions.

"As far as I’m concerned we did what we did within the instructions,” Mr Smyth said.

Mr Smyth said he regretted that he had not seen reports and notes from an August 2008 meeting between Sgt McCabe and Supt Noel Cunningham before the letter was drafted. The letter contained an inaccurate account of the meeting.

Mr Smyth said that notes made by Supt Cunningham which were also handed in to the commission were compatible with a transcript of the meeting recorded by Sgt McCabe.

Mr Smyth said he hoped he was "in no way rude or unpleasant to Sgt McCabe" at the commission.

He said sometimes people got "caught up in the drama of the moment" and in those circumstances, Judge O’Higgins as the referee would be expected to step in and "give a rap on the knuckles". Mr Smyth said he did not ever recall getting a rap on the knuckles.

"I will accept that there were a number of occasions where Sgt McCabe became visibly upset, but I will not accept it was anything I said," Mr Smyth said. He said he appreciated that the sergeant was under a lot of stress at the time.

"It was never my intention to cause upset to him by any question," Mr Smyth said.

Mr McDowell said that the Byrne-McGinn report of an internal garda inquiry had provided a framework and should be seen by his client. In an introduction giving background information, Sgt McCabe was described as having "a level of paranoia”.

Mr Smyth said he never saw the Byrne-McGinn report, and considered it history. He said he was dealing with a more recent report by barrister Sean Guerin SC.

He said he never observed any ill-will or spite or hostility to Sgt McCabe in consultations with his clients.

Mr Smyth said that at a meeting with Garda Commissioner Noirin O’Sullivan, before she gave evidence to the Commission in November 2015, he anticipated that she might be challenged on her evidence by Mr McDowell.

"You said you would question her and she would not enjoy the experience," Mr Smyth said to Mr McDowell.

"We had to inform her of this impending doom, and put her in the picture as to what the likely questions would be," he added.

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