Tribunal will look at O’Sullivan instruction to lawyer
GARDA Commissioner Nóirín O’Sullivan’s instructions to her lawyer and whether false allegations against Maurice McCabe were inappropriately relied upon by her are set to become a key focus of the Disclosure Tribunal.
Supreme Court judge Peter Charleton indicated he will have to decide whether discussions between the commissioner and her lawyers are protected by attorney-client privilege.
The matter is one of several issues confronting Mr Justice Charleton, who opened his public inquiry yesterday at Dublin Castle into allegations of an orchestrated smear campaign against Sgt McCabe.
One of the allegations to be investigated relates to instructions said to have been given by Ms O’Sullivan to lawyers acting on her behalf, who are alleged to have sought to introduce a false sexual abuse allegation at the O’Higgins Commission.
Mr Justice Charleton indicated the relationship between journalists and sources will also be put under intense scrutiny.
The judge asked if it was possible journalistic privilege does not apply to “using the media as an instrument of naked deceit”.
He said the tribunal had “no settled view on the matter” and would have to carefully consider it.
In an opening statement, Mr Justice Charleton asked anyone with information relevant to the allegations being examined by the tribunal to provide written statements and evidence by March 13.
He said the “basic touchstone” of the tribunal would be “fairness”, with “no preconceived notions in this tribunal as to who is a villain and who is a victim, if there are such”.
The tribunal has been set up to examine allegations of an alleged smear campaign against Sgt McCabe.
It will also examine disclosures made by Superintendent David Taylor and another whistleblower, Garda Keith Harrison.
However, Mr Justice Charleton announced that one of its terms of reference, the consideration of other protected disclosures made prior to February 16 this year, would be “parked” for now.
Mr Justice Charleton said he would not tolerate participants who lie or obfuscate and that the tribunal had been entrusted with doing its business in a speedy manner.
“The tribunal is here to establish the truth,” he said.
The judge said the tribunal’s ultimate findings may not be to everyone’s taste.
However, he added that while truth can be bitter, it is not shameful.
He said the legal mind was conditioned to look for evidence, to seek supporting evidence and to uncover patterns indicative of truth.
It was not conditioned to leap to conclusions or declare someone had done something discreditable without sufficient proof.
Mr Justice Charleton said the tribunal was a final step following a number of internal garda investigations and the scoping inquiry by Mr Justice Kevin O’Higgins.
Anyone whose reputation was likely to be impacted upon will be entitled to legal rep- resentation, he said. But not every witness will be entitled to representation.
Most of the examination is likely to be done by counsel for the tribunal, he said.
He also said each party would be entitled to make an oral or written submission at the end of the tribunal, but a draft report would not be circulated
in advance of findings being published. Some evidence at the tribunal may also have to be heard “in restricted circumstances”. He said he would hear submissions on this.
Among issues which may be heard in a restricted manner are matters in relation to the creation and distribution of a Tusla file containing false allegations of sexual abuse by Sgt McCabe, contacts between gardaí and Tusla in relation to Garda Keith Harrison, and whether or not there was any pattern of senior gardaí using such files to discredit members of the force.
A likely date for when public hearings of evidence will begin was not disclosed.