Looking for answers inside the arena of the Disclosures Tribunal

To step into the Disclosures Tribunal at Dublin Castle is to step into a dizzying meta world.

“This is me talking now,” Michael McDowell said at one point this week, as he referenced the words of Michael McDowell who was counsel for Maurice McCabe at the O’Higgins Commission which is now being explored by, among others, Michael McDowell, counsel for Maurice McCabe, at the Disclosures Tribunal.

“I have a nightmare,” Judge Peter Charleton said on Thursday afternoon, “looking at this transcript, where we're having a Tribunal into a transcript of a Commission that there may be a Tribunal into this Tribunal and my handling of this.”

This module of the tribunal is specifically exploring “whether the false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by Commissioner O’Sullivan to discredit Sergeant Maurice McCabe” at the O’Higgins Commission.

The O’Higgins Commission was investigating “Certain Matters in the Cavan/Monaghan district” in private, although the information that dripped out and who knew what about what was going on inside that private commission forms much of the discussion at this tribunal.

Noirin O’Sullivan may yet be recalled to the tribunal following the submission of a Garda document - produced by a senior officer some years ago and given to the then Garda Commissioner Martin Callinan - on Wednesday evening which described Maurice McCabe as a “paranoiac who had lost control of his station”. Michael McDowell said that if O'Sullivan had been aware of this document it would change utterly her “anodyne and hands-off evidence" at the Tribunal.

O’Sullivan and her counsel at the O’Higgins Commission, Colm Smyth were among those who gave evidence this week and in passing they referenced the emotional toll their roles at the O’Higgins Commission had taken when events there, or a version of them, reached the public arena.

In a forum which seems designed to get inside the heads of other people or get inside the heads of the same people at a previous time in their lives, O’Sullivan’s evidence was something of a contrast.

Noirin O’Sullivan is a woman who keeps her eyes on the road. There were many incidents she couldn’t recall. She had taken over as Commissioner with a determination to make sure Maurice McCabe was supported and she gave evidence which made her sound like a dream boss, who was relentless in her desire to support whistleblowers, while also being a boss who let people get on with their jobs.

Even when things were heating up at the O’Higgins Commission, she was thinking about those under her.

One of the reasons she gave for wanting an adjournment on the Friday afternoon of the first week of the Higgins Commission when the approach of her counsel was being vigorously questioned was her concern for Maurice McCabe.

“I wanted to make sure that there were necessary supports in place for Sergeant McCabe, because obviously, you know, again, in my experience, sometimes for witnesses in what is a legal forum, it can be very stressful, and I was certainly aware that from Chief Superintendent Healy and from speaking to him, there was a lot of -- a lot of heat in the room.”

In this meta world where counsel quoted themselves and examined transcripts of their previous remarks, O’Sullivan remained resolutely prosaic and focused on the matters in front of her.

“It's very difficult to try to figure out what is going on in other people's heads,” she told McDowell at one stage. 

 

And, as she had made clear to Judge Charleton on a number of occasions, Noirin O’Sullivan was a very busy woman so she clearly decide not to waste time trying.

“I put it to you,”McDowell responded, “that you displayed an extraordinary lack of curiosity.”

O’Sullivan rejected this, but she wouldn’t, as she had told counsel for the tribunal on Tuesday when asked about another matter, “get into the realm of speculation”.

Even when she had appeared to take the shape of another person, it seemed it was not as it appeared.

When the evidence of her email to Frances Fitzgerald the morning after an edition of Prime Time where the then Minister for Justice Fitzgerald had failed to express confidence in O’Sullivan was produced, O’Sullivan was able to explain that what appeared to be the draft of a speech for Fitzgerald to read in the Dail was in fact something else.

It appeared to contain a draft of a speech and was written in the first person, but O’Sullivan told the tribunal that it was not a draft speech, but simply “facts”.

She had referred to herself in the third person and had written it from Fitzgerald’s point of view but it wasn’t a draft speech, even though draft was mentioned.

"I have interrogated this matter in detail with the Commissioner,” this email began. Kathleen Leader, counsel for the tribunal pointed out to the former Commissioner that the Commissioner referred to “was you, who was sending the email.”

Leader suggested that “you were clearly drafting a statement for the Minister there”.

O’Sullivan rejected that. "What I had been doing was drafting a statement for myself, given that I felt I was in a position where I had to consider my position.

“And I may well have put it into the first person in terms of -- or the third person, sorry, for the purpose of doing this - but I was not drafting a statement for the Minister, but I was giving her the factual position and making sure that she was in possession of the full facts.”

The facts ended with Noirin O’Sullivan writing in the third person for Frances Fitzgerald that “I wish to state here and now that I have full confidence in the Commissioner”. Who, of course, was Noirin O’Sullivan.

O’Sullivan explained that this was “a demand to know if she had confidence in me”. If she didn’t, O’Sullivan would be forced to consider her position. Fitzgerald didn’t read the statement in the Dail.

So even then O’Sullivan was rejecting any attempt to speculate or to imagine how anyone else was thinking but stating the facts, even in the third person.

Through all this, Maurice McCabe sits in the final row of seats reserved for the lawyers, listening to the evidence which he knows so well. To some the granular detail may seem bizarre, but the details are his life and what happens here is of critical importance. 

McCabe will soon give evidence himself. Until then, he observes every minute of this meta production.

When Michael McDowell discussed the submission which led him to ask that O’Sullivan was recalled to the witness box, he returned to the idea to be found in this document that Maurice McCabe was behaving in a “paranoid manner”.

Judge Charleton, who attempts to keep things moving in a dry way, said McCabe's counsel was returning to that word again, and sometimes he felt a little paranoid himself.

“The old phrase, Judge,” Michael McDowell replied, “that just because you are paranoid doesn't mean they are not trying to get you, applies here very much.”