O’Sullivan’s absence like ‘Hamlet without the prince’

Analysis: Charleton tribunal questions Garda on legal error that had massive consequences

The matter currently being investigated by the Charleton tribunal grows more nuanced with each day’s evidence.

The Oireachtas asked the tribunal to investigate whether former Garda Commissioner Nóirín O’Sullivan used a false sex allegation or other unjustified grounds at the O’Higgins Commission to discredit Sgt Maurice McCabe.

The sex allegation suspicion has been shown to be groundless so we are left with the possibility of unjustified grounds. And in fact we know that an unjustified ground was put to McCabe during the commission hearings. Monday’s evidence concerned how this came about.

Evidence from members of the legal team that acted for O'Sullivan has indicated that the fault lay with certain Garda officers. However the Garda officers have now, so to speak, sent the ball back into the lawyers' side of the court. The tribunal chairman, Mr Justice Peter Charleton, will no doubt give his view in time.

The unjustified ground arose from an error in a legal submission that had massive consequences. From the perspective of McCabe, who by his own admission has come to feel he couldn’t trust anyone, the error had the effect of making him think that O’Sullivan, who in public had been expressing support for him, had decided, within the confidential hearings the commission, to go after him. The blow to his trust in O’Sullivan is a contributory factor to the existence of the tribunal.

O’Sullivan’s legal team at the commission decided early on that they had to challenge the motivation and credibility of McCabe. The evidence suggests that part of the reason for this was a misunderstanding, which led to the error in the legal submission. Monday’s proceedings suggested that, absent the misunderstanding, the lawyers had no grounds for going after McCabe. Though that may be an overstatement.

A striking aspect of the evidence has been that the Garda legal team was representing both O’Sullivan and officers against whom McCabe had made serious allegations which were ruled by the commission to be unfounded. If there had been two legal teams, one representing the Commissioner and one representing officers who wanted to contest serious and unfounded allegations against them from McCabe, we mightn’t be where we are today.

Monday's witness, Supt Noel Cunningham, was one of the officers against whom McCabe had made unfounded allegations. He seemed to grow suddenly and momentarily tearful when asked how that had felt. As well as living for years with the untrue allegation, he was also traduced in the Dáil where it was stated by Mick Wallace that he, the superintendent, intended to give false evidence to the commission until he had been prevented from doing so by McCabe's dramatic production of a secret tape recording that showed that the intended evidence (the error) was untrue.

During his evidence Cunningham said that he had never instructed his lawyers to challenge McCabe’s motivation and credibility. As matters stand, it seems it was the lawyers’ idea, formed after they had interviewed some Garda officers, but not O’Sullivan. The lawyers sought the necessary go ahead from O’Sullivan, and she gave it, by way of an intermediary. All of this without her having, by that stage, met with any member of her legal team, including her solicitor.

O’Sullivan’s odd absence from the action can sometimes make the tribunal inquiry feel like a case of Hamlet without the prince.

When the tribunal finishes this phase of its inquiries and moves on to whether Garda HQ, including O’Sullivan’s predecessor, Martin Callinan, conducted a smear campaign against McCabe, the evidence may get less convoluted. Though based on everything heard to date about Garda HQ, that could turn out to be enormously wide of the mark.