Sunday 11 December 2016

Ex-Anglo Irish Bank official remains in jail 'because he suffered an unfair trial', court hears

Ruaidhrí Giblin

Published 13/01/2016 | 17:56

Bernard Daly (67)
Bernard Daly (67)

An ex-Anglo Irish Bank official remains in jail “because he suffered an unfair trial”, according to his lawyers as they ask the Court of Appeal to “step in” and restore his previous good character.

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Bernard Daly (67), of Collins Avenue, Whitehall, Dublin and Tiarnan O'Mahoney (56) of Glen Pines, Enniskerry, Co Wicklow had denied knowingly furnishing false information and conspiring to defraud the Revenue as well as conspiring to have accounts deleted from the bank's internal system.

Having been found guilty by a jury at Dublin Circuit Criminal Court, Judge Patrick McCartan jailed Daly for two years and O'Mahoney for three years on July 31, 2015.

O'Mahoney, who had been second in command at the bank and Daly, the banks former company secretary, opened appeals against their convictions in the Court of Appeal on Monday.

Counsel for Daly, Seán Guerin SC, told the three-judge court today that his client's trial was unfair “from beginning to end”.

Mr Guerin said the prosecution had been allowed to misrepresent the evidence and misstate facts because the trial judge held that it was a matter for the jury.

That was “deeply disturbing”, Mr Guerin said and bore “no relation to a fair trial”.

He said the prosecution were allowed to make entirely contradictory submissions and allowed to alter the indictment on the morning of the trial in an unjustifiable fashion.

Mr Guerin said the prosecution spun the evidence in a most inaccurate and unfair way and notwithstanding the fact that issues were raised by the defence, they repeated misstatements of evidence again in their closing speech.

Furthermore, he said the trial judge aggravated the situation by making “new and important misstatements of evidence himself”.

Mr Guerin said the trial judge failed to marshall the evidence, failed to present the defence case to the jury and presented disputed evidence as fact.

The trial judge was falling into error in his account of what the evidence was, was willing to draw adverse conclusions from non-probative evidence and was confusing unrelated evidence in relation to two lists, counsel stated.

He said Daly's conviction was imposed on a man with an umblemished record who remained in prison six months later “only because he suffered an unfair trial”.

Mr Guerin asked the court to give effect to the requirement of a fair trial by ruling that “what happened was a travesty”.

Daly simply didn't get a fair crack of the whip, Mr Guerin said, and he asked the court to “step in” and restore the “position of good character and record” his client had held before July 31.

When asked whether the prosecution stood over what he had described as misstatements and misrepresentations of evidence, Mr Guerin said the prosecution's position was that these were “matters of emphasis by them”.

The prosecution persisted with these misstatements and they weren't backing down from them, Mr Guerin said.

There was no case against Daly without evidence of a conversation the jury accepted he had had with the bank's fromer Head of Compliance Brian Gillespie, Mr Guerin said.

During the trial, Mr Gillespie described a conversation in which Daly asked if he could delete a name from the list to be provided to the authorities and Mr Gillespie said 'no'.

Mr Guerin said the prosecution expressly told the jury that Daly requested a member of the task team to do something but Mr Gillespie, who wasn't a member of the task team, stated himself that it wasn't a request by Daly but rather a rhetorical question.

Despite that, it was something the prosecution stuck to and held onto even in their closing speech, Mr Guerin said.

There was a factual issue on whether that conversation actually took place, Mr Guerin said, but the judge told the jury in clear terms that it had taken place.

The credibility of Mr Gillespie was absolutely central and again the jury were never told that, counsel said.

Counsel for the Director of Public Prosecutions, Dominic McGinn SC, said there was simply no unfairness in the expansion of the conspiracy on the indictment. The remedy suggested by the prosecution was to allow further time for the defence to prepare their case but no such application was made.

Although the actual acts in furtherance of the conspiracy occurred in 2004, it was clear that steps toward the conspiracy were taken much earlier, Mr McGinn said.

The evidence suggested that the intention and discussions in relation to it had occurred prior to the original indictment date.

The chain of communication suggested a conspiracy was afoot and the goal was to conceal information from the Revenue, Mr McGinn said.

It was artificial to suggest that these things were completely unrelated. There was an ongoing conspiracy involving all three accused, Mr McGinn said, and efforts toward it began as soon as the revenue sparked an interest in the bank.

The furnishing of a list to revenue from which a reference to a particular account was deleted, was a discrete offence involving O'Mahoney and Daly and was separate from the conspiracy, counsel stated.

That was consistently the prosecution's case, Mr McGinn said. During the same time period there were concurrent conspiracies - one involving all three and one involving O'Mahoney and Daly.

Mr McGinn will continue making replying submissions today/tomorrow(THURSDAY) before Mr Justice George Birmingham, Mr Justice Garrett Sheehan and Mr Justice John Edwards.

Last December, the Court of Appeal quashed an 18-month sentence imposed on the two men's co-accused, a former Anglo assistant manager, Aoife Maguire, for her role in the conspiracy.

The court found the sentence was too severe and substituted a new nine-month sentence in its place, suspending any unserved portion, releasing her from prison.

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