Garda whistleblower Sgt Maurice McCabe apologised this week at the Charleton Tribunal for an incorrect passage in his statement to the tribunal that the chairman suggested did not reflect "objective reality".
The acceptance that the claim made in his statement was an error came after the chairman and lawyers representing other parties at the tribunal listened to audio tapes of private hearings held in 2015, to see if McCabe’s claims about being shouted at were correct.
The sergeant gave evidence on Monday and Tuesday in what is expected to be his only appearance in the witness box at a tribunal set up by the Oireachtas to investigate whether Garda HQ operated a smear campaign against him because of his whistleblowing activities.
It was McCabe’s first instance of giving evidence at a public forum about what was described by tribunal counsel Patrick Marrinan SC as his “crusade” and the distress and difficulty he has said he encountered as a result.
At times McCabe was tearful and at one stage the tribunal rose for 10 minutes to allow him compose himself.
The tribunal was established in February 2017 and a month later McCabe supplied it with a statement. Earlier this week the tribunal was told that a passage in the statement where McCabe said that during the O’Higgins Commission hearings he told Colm Smyth SC, counsel for the then Garda Commissioner, Noirin O’Sullivan, to stop shouting at him, was an error.
"This statement was included due to an error on the part of someone in my office during the preparation of the statement," McCabe's solicitor, Sean Costello, told the tribunal in a letter sent in prior to McCabe entering the witness box.
Difficult to accept
Questioned by Shane Murphy SC, counsel for Garda HQ and former commissioners O'Sullivan and Martin Callinan, McCabe said it was "an error on behalf of somebody else" and not his, McCabe's, error. However the tribunal chairman, Mr Justice Peter Charleton, said he found the explanation in the solicitor's letter difficult to accept.
In his statement to the tribunal, McCabe said the following about his experience of what had happened in private at the O’Higgins Commission in 2015:
“The hearings were highly adversarial and I broke down on a number of occasions due to the ferocity of the attack by counsel for the commissioner [O’Sullivan]. I had to seek medical attention. Her counsel did not cross-examine anybody but me in a similar fashion. I had no issue with the vigorous cross-examination I was subject to by the other legal teams [. . .]. They were doing their job to protect their clients and were thoroughly professional but [I] took grave exception to the pejorative and hostile tone adopted by Colm Smyth SC, so much so that on a number of occasions I had to say ‘Mr Smyth please stop shouting’.”
In response to McCabe’s statement, the tribunal chairman went through the transcripts looking for every instance of the word “shout”. The quote mentioned in McCabe’s statement does not exist.
The relevant transcripts from the O’Higgins hearings were available to interested parties. However, the tribunal decided, prior to McCabe giving evidence, to also circulate audio recordings of every appearance of McCabe at the commission. Lawyers then listened to these. As Paul Sreenan SC, counsel for the barristers that represented Ms O’Sullivan at the commission put it at the tribunal on Thursday, this exercise resulted in considerable cost.
The circulation of the recordings led to the apology by McCabe’s solicitor. He said the recordings “accurately disclose the tone and manner in which our client was cross-examined”.
‘Mystified’
Charleton said he was “somewhat mystified” as to how the mistake could have been made. It was hard to see it as an error, he said.
Turning to McCabe in the witness box, he said the description by McCabe in his statement as to what happened at the commission was a “human life narrative as opposed to the kind of thing that perhaps someone who is lying says”.
He asked if the passage was an example of where McCabe “may exaggerate matters”. Sometimes a person reliving an experience, in order to get it across, tries to “put emotion into it and perhaps too many words come out that otherwise don’t necessarily reflect the objective reality. Is this an instance of that?”
“It probably is, judge,” McCabe replied, “and I apologise”.
McCabe said he had not spotted the error in his statement prior to it being submitted to the tribunal. It was an interesting comment in that one of the matters the tribunal has been examining was the failure of Garda officers to spot an error in a legal submission handed into the commission which contained a false allegation against McCabe.
Murphy, the barrister representing Garda HQ, said McCabe demanded perfection from everyone around him but when he made an error a different standard applied.
Sreenan, counsel for O’Sullivan’s legal team at the commission hearings, pointed out that McCabe’s barrister and solicitor at the tribunal had also represented him at the commission hearings, where the shouting at their client was alleged to have occurred. Michael McDowell SC is McCabe’s barrister and his solicitor is Sean Costello, of Sean Costello & Co. Sreenan said they must have read McCabe’s statement in draft form.
During his evidence McCabe grew emotional when recounting a conversation he said he had with John McGuinness of Fianna Fáil in 2014, during which, he said, he was told that Callinan had a few months earlier, told McGuinness that McCabe had abused his own children, and was not to be trusted.
Denies comments
Lawyers for McGuinness have said their client will confirm this claim. Callinan, who has yet to give evidence, has told the tribunal in statements that he vehemently denies that he made the alleged comments.
McCabe also said he was told by former Garda Press Officer Supt David Taylor, that he had issued hundreds of texts to journalists and others when ordered to do so by Callinan, as part of a smear campaign. Taylor’s lawyers, in response, said the texts were not as described by McCabe, though it appears Taylor is still alleging a smear campaign was ordered by Callinan. Callinan denies this. McCabe has asked recipients of any smear texts from Taylor to come forward to the tribunal.
The O’Higgins Commission examined complaints about certain policing matters made by McCabe, as well as complaints he made against senior Garda officers, including Callinan. It upheld McCabe’s complaints about the policing matters, but dismissed as unfounded the serious allegations he had made against the senior officers.
Charleton, in comments to McCabe during McCabe’s evidence, said he had been “vindicated” by the report and that the matters raised by McCabe about policing standards made you “wonder what kind of police force we have got”.
In his report the commission chairman, Mr Justice Kevin O’Higgins, said McCabe “impressed the commission as being never less than truthful in his evidence, even if prone to exaggeration at times”.
He said McCabe had acted out of genuine and legitimate concerns, had shown great courage, and had performed “a genuine public service” at considerable personal cost.
The O’Higgins Commission was established in the hope that it would bring to an end a controversy that had caused ructions within the justice and political establishment. However, in the wake of its report in 2016, media leaks concerning what had happened at the confidential hearings, created further controversy.
Murphy, for Garda HQ, said on Thursday that these “selective leaks” of inaccurate information about what had happened during the O’Higgins Commission, in the wake of its report, activated an intense public controversy one of the consequences of which was the establishment of the Charleton Tribunal. And so the saga has continued.
It is expected the tribunal will resume hearings next month.
