Former garda commissioner Nóirín O'Sullivan has told the Disclosures Tribunal that, during her appearance at the O'Higgins Commision in late 2015, nobody questioned her about her instructions to her legal counsel at the inquiry.

Ms O'Sullivan was being questioned this afternoon by Shane Murphy, Counsel for An Garda Síochána.

She said nobody put any matters to her at the commission about her legal approach or instructions.

The tribunal heard that Counsel for Ms O’Sullivan, Colm Smyth, ultimately clarified at the O'Higgins Commission that the issue of Sergeant Maurice McCabe's integrity was not part of the instructions received by the legal team.

Ms O'Sullivan told the commission that she took the allegations of corruption and malpractice that had been made against senior gardaí at the time of the commission very seriously.

She said she was concerned about the impact on public confidence in the gardaí and also about the vindication of the rights of the individuals against whom allegations had been made.

Ms O'Sullivan was also asked about a letter forwarded to the then minister for justice Frances Fitzgerald in 2016 in the aftermath of the O'Higgins Commission.

The tribunal heard evidence yesterday about the input of an official from the Department of Justice in the drafting of that letter.

Ms O'Sullivan said there were a number of drafts shared between parties, but the final letter that was forwarded to Ms Fitzgerald was her letter, with her facts and her view of the matters being put forward.


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AG official 'does not recall' concerns over garda legal representation

An official from the Attorney General's office has said he does not recall concerns flagged in relation to a potential conflict of interest in the garda legal representation at the O'Higgins Commission.

The same legal counsel represented the garda commissioner and senior gardaí above superintendent rank.

Richard Barrett, deputy director general of the Attorney General's office, was asked whether anything was seen as being wrong with the representation.

The Attorney General's office nominated counsel for An Garda Síochána.

He said he did not remember any discussion on that. Mr Barrett said similar representation had arisen in many parallel inquiries and it was not without precedent.

He was also questioned about his contact with the Department of Justice on 15 May 2015.

His colleague, Michael Dreelan, received a call from Ms O'Sullivan's solicitor at the O'Higgins Commission to say an issue had arisen at the inquiry.

Mr Dreelan then passed on the information to Mr Barrett, who said he was receiving the details "second-hand, if not third-hand".

Mr Barrett said he was concerned that a judicial review or other litigation would disrupt or slow down proceedings, so he called the Department of Justice to inform officials there.

He spoke to Michael Flahive, who later circulated an email to several officials in the department about the call.

The emergence of this email in November led to a controversy, which eventually resulted in Ms Fitzgerald resigning as justice minister. 

Mr Barrett said some of the details in the email did not completely reflect his recollection of the phone call and he said "the subtlety of the message may have been lost in the retelling".

O'Sullivan 'not aware' of conflict of interest

Earlier, Ms O'Sullivan said she was not aware or informed of any potential conflict of interest arising out of the fact that she was being represented by the same legal counsel as other senior gardaí at the O'Higgins Commission.

The tribunal was shown a copy of the transcript of the O'Higgins Commission hearings from December 2015, during which Superintendent Noel Cunningham said he believed that Sgt McCabe had not supported him, and had undermined him.

The tribunal is examining whether or not Ms O'Sullivan inappropriately relied on unjustified grounds to discredit Sgt McCabe at the O'Higgins Commission.

Michael McDowell, counsel for Sgt McCabe at the tribunal, put it to Ms O'Sullivan that she was using as her mouthpiece, the same legal counsel that was being instructed by a person who believed Sgt McCabe was trying to destroy his career.

Mr McDowell said Ms O'Sullivan had advanced the view that her legal counsel was not to focus on Sgt McCabe, but to ask hard questions of all people in respect of establishing the truth at the O'Higgins Commission.

Ms O'Sullivan said she had been advised by the Garda Head of Legal Affairs, Ken Ruane, in relation to the appointment of legal counsel.

She said if at any stage a conflict of interest arose she would have been advised of the need to revisit the matter.

Mr McDowell said her legal counsel had been dependent on Supt Cunningham to contribute to the letter sent by the garda legal team to the O'Higgins Commission on 18 May 2015, which contained an error.

Ms O'Sullivan said she did not know what had happened at the consultations between her legal counsel and other witnesses in the days before the commission began hearings, and she said she did not feel she could account for the evidence of a witness before the commission.

Mr McDowell put it to Ms O'Sullivan that the failure to follow up on a request by her solicitor at the commission for an urgent consultation, after the row arose over the legal strategy on day two, was a ball that was dropped.

Annmarie Ryan of the Chief State Solicitor's office previously told the tribunal that she asked the Garda Liaison, Chief Supt Fergus Healy, for a consultation with Ms O'Sullivan on 15 May 2015 after the question of the legal strategy came up.

Chief Supt Healy has told the tribunal that he relayed the request to Ms O'Sullivan for a consultation to take place over that weekend but she was too busy.

Ms O'Sullivan said again today that she never received the impression that a consultation was needed.

She said she was available that weekend and would never have been too busy to have a consultation with counsel if she had received a request for that.

The tribunal also heard that Ms O'Sullivan had an "extraordinary lack of curiosity" in relation to a letter sent under her authority to the O'Higgins Commission.

Mr McDowell questioned her about Sgt McCabe’s decision to quit as head of the traffic division in Mullingar on 18 May 2015.

This was the same day that a letter had been sent to the commission setting out items to be raised with Sgt McCabe. 

Mr McDowell asked Ms O'Sullivan why she did not ask to see the letter to find out what Sgt McCabe was "freaking out" about that day. 

He suggested that she displayed an extraordinary lack of curiosity about what her lawyers had put in the letter.

Ms O'Sullivan said it was not that she had a lack of curiosity, she said she was told that the document had been submitted and the judge had made a ruling that the issue of motivation was peripheral.

Mr McDowell suggested that she must have thought it was a gross overreaction and an inexplicable decision for Sgt McCabe to resign his position.

Ms O'Sullivan said she was at a loss to explain why he had resigned and also why he had told a superior that he felt under threat from her. 

She said it was very difficult to try to figure out what was going on in somebody else's head, but she did not believe there was an attack launched at Sgt McCabe at the inquiry. She said it was just legal argument.