Tuesday 27 September 2016

Former Anglo officials convicted of conspiring to conceal accounts 'did not receive fair trial' - court hears

Daniel Hickey

Published 11/01/2016 | 18:04

Bernard Daly (67)
Bernard Daly (67)

Two former Anglo Irish Bank executives convicted of conspiring to conceal or alter bank accounts being sought by Revenue did not receive a fair trial, the Court of Appeal has been told.

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Former Chief Operations Officer Tiarnan O'Mahoney and former company secretary Bernard Daly are appealing their convictions.

O'Mahoney, who was second in command at the bank, received a three year sentence. Daly was sentenced to two years.

O’Mahoney (56) of Glen Pines, Enniskerry, Co Wicklow, was also convicted of furnishing incorrect information to the Revenue Commissioners in 2003.

Last December, the Court of Apeal quashed an 18-month sentence imposed on the two men's co-accused, former Anglo assistant manager, Aoife Maguire, for her role in the conspiracy. The court said the sentence was too severe and substituted a new nine-month sentence in its place, suspending any unserved portion.

Ms Maguire was released from prison.

Tiarnan O’Mahoney (56)
Tiarnan O’Mahoney (56)

At today's appeal hearing, Brendan Grehan SC, for O'Mahoney, told the court there were twenty-one grounds on which his client was making his appeal.

He said that there was a "series of erroneous, adverse rulings" by the trial judge, Judge Patrick McCartan, which resulted in a "flawed legal process".

"A series of unfortunate incidents resulted cumulatively in evidence which should never have been before the court," Mr Grehan said.

There were four pieces of evidence which "drastically" altered the position against the accused, the court was told. 

"They totally changed what was in effect a circumstantial case in respect of the conspiracy charges into items of direct evidence," Mr Grehan said.

The four matters were the cross-examination of witness, Brian Gillespie, an email sent by Ms Maguire, the evidence of James Shaw, and the unedited interviews of Mr Daly, the court heard. 

These "individually or cumulatively resulted in rendering it an unfair trial," Mr Grehan said. 

During the trial, Brian Gillespie was cross-examined by counsel for Mr Daly. References during Mr Gillespie's evidence to O'Mahoney "impacted in a very negative way on Mr O'Mahoney's rights to a fair trial," the court was told. 

Mr Gillespie had told prosecuting counsel, Dominic McGinn SC, that he had received instructions from O'Mahoney. The instructions were to either remove an account from the list requested by the Revenue Commissioners or to not include it on the list, the court heard. 

Mr Grehan said that the defence lawyers had "no prior notice that Mr Gillespie had this information, this factual matter".

He went on to make submissions about an email sent by Ms Maguire which included O'Mahoney on its CC list. 

The basis for the admission into evidence of the email was "not at all clear," he said. 

In the email, Ms Maguire stated that she was "working directly" for O'Mahoney, the court heard. 

The email did "not square with" the evidence from another witness at the trial that O'Mahoney "didn't read emails and didn't use email".

"There was no proof that it was received by Tiarnan O'Mahoney, let alone proof that he read it," Mr Grehan said.

"If Mr O'Mahoney had been tried alone, the jury would never have seen the email," he added. 

"The effect of this particular email was to associate Mr O'Mahoney with every single act of Ms Maguire," he submitted.

The jury had been asked to accept the email as evidence of truth against Ms Maguire but reject it as evidence truth against O'Mahoney, the court was told.

In this context, it was "inconceivable" that a jury could not be "contaminated" by the email, Mr Grehan said.

A jury could not be expected to "engage in that kind of verbal gymnastics," he told the court.  

Mr Grehan told the judges there was other evidence of a working relationship between O'Mahoney and Ms Maguire but that it was "far weaker".

The court also heard that, during the trial, counsel for O'Mahoney had objected to the statement of witness, James Shaw, particularly his comment that the instructions to delete accounts were coming from O'Mahoney. 

Mr Shaw's evidence was "highly objectionable and prejudicial," Mr Grehan said. 

He further stated that the damage caused by this evidence to O'Mahoney in front of the jury was "very great".

Earlier, Lorcan Staines BL, also for O’Mahoney, told the court there were two "unusual features" in the investigations on which the trial was based. 

The first was that the investigation had been outsourced to a fraud investigator within Anglo, Patrick Peake. The second was that gardaí were working against the statutory time limit.

Mr Staines said that O'Mahoney had not been charged with the offences he faced in court within the statutory time limit of ten years.

The appeal continues before Mr Justice George Birmingham, sitting with Mr Justice Garrett Sheehan and Mr Justice John Edwards.

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