Garda barrister says tribunal cannot ‘cherry-pick’ documents

Smithwick tribunal

A barrister representing a retired garda before the Smithwick tribunal has said the tribunal’s lawyers cannot “cherrypick” evidence without sharing the documents they are relying on with other parties before the inquiry.

Mr Jim O’Callaghan SC was speaking during a legal application to have access to notes of an interview between the tribunal and a retired assistant garda commissioner, Pat O’Toole, who gave evidence on Friday 10 February.

The tribunal is looking at allegations that a garda leak led to the IRA ambush in which the two RUC officers, chief superintendent Harry Breen and superintendent Bob Buchanan, were killed as they returned from a meeting in Dundalk garda station.

During his evidence, Mr O’Toole was challenged about evidence regarding an internal garda probe following the deadly ambush. Mr O’Toole said in a statement to the tribunal, and at an interview, that collusion allegations were part of the reason for the inquiry headed by assistant commissioner Edward O’Dea, but in evidence on Friday said the terms of reference were simply to establish the circumstances of the visit by the two EUC men to Dundalk.

Jim O’Callaghan SC represents retired detective sergeant Owen Corrigan, who has described allegations of collusion as a “monstrous lie”. He argued that he was entitled to the interview notes, as evidence that there were no concerns about collusion in 1989 was crucial evidence reflecting on his client’s good name.

The barrister said that because the interview with Mr O’Toole was “deployed” by the tribunal in questioning all the witness, all parties were entitled to copies. Otherwise, there was a danger that parts of the document could be “cherrypicked.”

Mr O’Callaghan said the gravity of the allegations the tribunal was examining was “more grave than any other allegation made at any other tribunal in the history of the State.”

Lawyers for two other retired sergeants, Mr Leo Colton and Mr Finbarr Hickey, supported the application by Mr O’Callaghan. Both men also deny any allegations of collusion. Counsel for the garda commissioner also supported the submission.

Tribunal barrister Mr Justin Dillon SC said that no allegation of wrongdoing had been made against any party’s good name by Mr O’Toole, and he was not an accuser. Since no one’s reputation had been impugned, there was no need to need to hand over confidential tribunal notes.

In reply, Mr O’Callaghan said that it was for counsel to decide how material might be used in cross examination, not for the tribunal. “Simply because Mr O’Toole is not an accuser of Mr Corrigan does not mean I am not entitled to cross-examine him,” the barrister said.

He said that any confidentiality belonged to Mr O’Toole, not the tribunal, and Mr O’Toole had not claimed confidentiality. Mr Diarmaid McGuinness SC, on behalf of the garda commissioner, said that tribunal barrister Mr Dillon was attempting a “Harry Potter three part trick”, and “put the cloak of invisibility back” on the notes, which he had referred to during his questioning of Mr O’Toole.

Mr Mark Robinson, on behalf of the PSNI, said he would support the position taken by Mr Dillon. The issues raised in the Re Haughey and O’Callaghan v Mahon tribunal cases did not arise in this case, he said. Once “the smoke cleared”, it was clear Mr O’Toole had not made allegations, and the tribunal had simply taken him through statements he had made in order to clarify his evidence.

The chairman said he would give his decision on the applications tomorrow (Tuesday) morning.

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