A Garda officer has told the Charleton tribunal that an error which created the impression at the O'Higgins Commission that the Garda legal team was attacking whistleblower Sgt Maurice McCabe's good faith was not his.
The officer, Supt Noel Cunningham, also expressed bafflement at how the head of his legal team at the commission, Colm Smyth SC, could have given the evidence he had given to the tribunal about how the error occurred.
The error set in train a series of events which culminated in a massive political controversy in 2016 and calls for the resignation of the then Garda commissioner, Nóirín O’Sullivan.
The tribunal is investigating whether Ms O’Sullivan used unjustified grounds at the private O’Higgins Commission hearings in 2015 to discredit Sgt McCabe.
The error was contained in a letter handed into the commission by the Garda legal team on May 18th, 2015.
The letter mistakenly stated that Sgt McCabe had referred at a meeting in Mullingar with Supt Cunningham to a complaint he had made "against" Chief Supt Michael Clancy, when in fact he had referred to a complaint he had made "to" the chief superintendent.
The error had the effect of making it appear that Garda HQ was asserting that Sgt McCabe had made a complaint in bad faith.
It caused Sgt McCabe to immediately step down from his position as sergeant in charge of the traffic corps in Mullingar because he felt he could no longer trust Ms O’Sullivan.
After the commission’s report was published in 2016, media stories based on leaks from the commission proceedings suggested that if Sgt McCabe had not secretly taped the meeting in Mullingar in 2008, gardaí would have presented untrue evidence at the commission that would have reflected badly on him.
Speaking under privilege in the Dáil on May 25th, 2016, Independent TD Mick Wallace referred to the error and said "gardaí were planning to perjure themselves or provide false evidence to impugn Sgt McCabe's motives".
He said Sgt McCabe “would be buried by now if he had not taped the conversation”. Mr Wallace later named the two gardaí to which he was referring, one of whom was Supt Cunningham.
The other garda named was Sgt Yvonne Martin, whom the tribunal chairman, Judge Peter Charleton, has said had no dealings with the commission. Sgt Martin was present at the Mullingar meeting.
The mistake was withdrawn during the course of the commission after the error was disclosed.
Giving evidence on Monday, Supt Cunningham told the tribunal that as a result of the leaks, it was suggested that he and Sgt Martin were going to perjure themselves at the commission, but there was “no truth in this whatsoever”.
When it was put to him that no one at the tribunal sitting had suggested this to him today, he responded that this was correct. He appeared to become emotional when asked about the matter, saying: “It has been very difficult.”
In response to Patrick Marrinan SC, for the tribunal, Supt Cunningham confirmed that notes taken by two parties to consultations he gave to the Garda legal team on May 12th, 2015, recorded him as giving the correct version as to what was discussed at the meeting he had in Mullingar with Sgt McCabe.
The tribunal had been told that over the weekend beginning Friday, May 15th, 2015, the Garda legal team drafted the letter following consultations with Supt Cunningham and former superintendent Colm Rooney.
The letter was handed to the commission on the morning of Monday, May 18th.
A report from 2008 written by Supt Cunningham about the meeting in Mullingar was submitted along with the letter and showed that the description of the meeting contained in the letter was incorrect, as did Sgt McCabe’s tape.
The tribunal has not heard detailed evidence about the consultations that produced the letter, as Supt Cunningham and Mr Rooney are claiming privilege in that regard.
On Monday, Supt Cunningham said he believed he was at all times clear when talking to the lawyers about the matter.
He said he could not “for the life of me” understand why the head of the Garda legal team, Mr Smyth, had said in his statement to the tribunal that the matter arose from a “misunderstanding”, but in his evidence had said the error arose in line with his clients’ instructions.
The legal team at the commission was representing Ms O’Sullivan and a number of officers against whom Sgt McCabe had made complaints, including Supt Cunningham and Mr Rooney.
Supt Cunningham, responding to Michael McDowell SC, for Sgt McCabe, said it could not have been that he had met with Sgt McCabe in Mullingar to discuss a complaint against Mr Rooney.
This was because he had the same rank as Mr Rooney at the time, and complaints against an officer always have to be investigated by an officer of a higher rank.
If Sgt McCabe had being referring to a complaint against Mr Rooney, “I would have said thanks very much and have been out the door.”
Supt Cunningham also said that a correct description of the incident was actually contained in the May 18th letter, one paragraph before the one that contained the error. Mr McDowell said that what was in question was not a “clerical error” but a “massive intellectual and factual mistake”.
The error in the letter was clarified when Supt Cunningham was giving evidence at the commission on June 24th, 2015, and after Sgt McCabe had produced his tape.
The error had been put to Sgt McCabe on May 18th, 2015, by Mr Smyth, and Sgt McCabe had said it was absolutely false.
Supt Cunningham said he was “embarrassed” that he had not noticed the mistake in the letter on the morning of May 18th when he approved its contents before it was handed into the commission.
He had not been shown a hard copy of it, he said. “I am embarrassed by the mistake and any distress it may have caused to Sgt McCabe.”
His failure to spot the error was “a mistake and it was nothing more than a mistake. I didn’t see it.”
The tribunal has adjourned until Wednesday afternoon.