Thursday 27 October 2016

'Most extraordinary' that former Anglo chief Sean Fitzpatrick is not on trial for Revenue defraud instead of three officials - jury told

Conor Gallagher

Published 24/07/2015 | 17:26

Former Anglo Irish Bank company secretary Bernard Daly
Former Anglo Irish Bank company secretary Bernard Daly
Former Anglo Irish Bank official Aoife Maguire at Dublin Circuit Criminal Court yesterday
Former Anglo Irish Bank official Tiarnan O'Mahoney at Dublin Circuit Criminal Court yesterday

One of the most extraordinary features of the prosecution of three Anglo Irish Bank officials accused of defrauding Revenue is that former chairman Sean FitzPatrick is not on trial instead, a jury has been told.

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Brendan Grehan SC, defending former chief operations officer Tiarnan O’Mahoney, said in his closing speech that it was Mr FitzPatrick who stood to benefit from the accounts being concealed and no one else.

The jury also heard from the prosecution who described Mr FitzPatrick as “a thread” running through the case but said that he was not the one they have the return a verdict on.

Mr O'Mahoney (56) of Glen Pines, Enniskerry, Co. Wicklow, former company secretary Bernard Daly (67) of Collins Avenue West, Whitehall, Dublin and former assistant manager Aoife Maguire (62) of Rothe Abbey, South Circular Road, Kilmainham, Dublin have pleaded not guilty to seven counts at Dublin Circuit Criminal Court.

It is alleged that they hid or omitted accounts, connected to Mr FitzPatrick from Anglo's Core Banking System (CBS) or from documentation provided to Revenue, who were conducting an investigation into bogus non-resident accounts which may have been liable for Deposit Interest Retention Tax.

“One of the most extraordinary features of this case is that Sean FitzPatrick is not on a bench over there if the prosecution is right in saying he’s the main beneficiary in all this,” Mr Grehan said.

Counsel compared Mr FitzPatrick to “the man on the grassy knoll” or Macavity the Mystery Cat. “His paw marks are everywhere but he’s nowhere to be seen. Instead you have Tiarnan O’Mahoney here with others,”

Mr Grehan said that there is no evidence that the Revenue suffered any loss from the lack of disclosure of accounts or that Mr O’Mahoney made any gain.

He suggested that the reason Mr FitzPatrick wanted to conceal the accounts may have been because he was moving from the position of CEO to chairman and he wanted to make sure there were no matters which could return to haunt him later, such as allegations of insider trading.

Referring to a prosecution argument that the accused assumed there would have been some tax liability on the accounts, Mr Grehan said there was no evidence for this. He said the jury was being asked to convict “on the basis of some kind of thought crime” and that “we have no evidence at all of what anyone might have thought”.

He said there was also no evidence that his client knew any of the details of any of the accounts connected to Mr FitzPatrick.

Counsel referred to an email which was sent by Mr FitzPatrick’s secretary to Mr O’Mahoney listing accounts belonging to John Peter O’Toole, the brother-in-law of Mr FitzPatrick. This email was sent the same day that Revenue requested a list of accounts with certain characteristics which matched the O’Toole account.

Mr Grehan said that his client would already have these account numbers as they had been previously been sent to Revenue as part of a different investigation. He also said that there was no evidence that Mr O’Mahoney ever read his emails.

Mr O’Mahoney is charged with conspiracy to defraud Revenue. Mr Grehan said that the charge of conspiracy has an ignominious history and is “a very broad brush thing which is put out there when you don’t have something specific to allege.”

He cited the examples of Daniel O’Connell and Charles Stewart Parnell being charged with conspiracy as well as Irish people in England being charged with conspiracy to cause explosions in past decades just because they drank in the same pub and sang rebel songs.

In his closing speech to the jury prosecuting counsel, Dominic McGinn SC, said that Mr FitzPatrick is the thread the runs through all the charges but that he is not on trial and jurors do not have to come to any verdict on his guilt or innocence.

Mr McGinn told jury that Mr FitzPatrick was connected to each of the deleted or altered accounts in various ways and that this provided the motive for the three accused to conceal them from Revenue.

The accounts are alleged to have been concealed at the same time Revenue were investigating the bank for holding bogus non-resident accounts which may have been liable DIRT.

“While that was happening a decision was made to hide these accounts because of the connection to Sean FitzPatrick and a concern they may lead to tax liability,” Mr McGinn said.

Counsel said when the investigation started, the first concern of those in charge was to stop the account of Mr FitzPatrick’s brother-in-law, Mr O’Toole, being disclosed to Revenue.

The court heard Mr O’Toole lived in Australia at the time. Counsel said this account may appear to have been a genuine non-resident account but that does not mean that it wasn’t bogus.

Mr McGinn said evidence shows that transactions were being made on the account in Dublin while the owner was living abroad. He said Mr FitzPatrick was making lodgements to it and that Mr O’Toole’s mother seems to have been operating the account.

Counsel said there were unusual practices going on with the O’Toole account including evidence that it was used to deal stock during the periods when bank directors were barred from trading. He also said there were large sums of money transferred in and out of the account by Mr FitzPatrick near the time of the bank’s year end returns.

Mr McGinn said Mr FitzPatrick and Mr O’Mahoney tried to stop the bank’s head of compliance Brian Gillespie from returning the O’Toole account to Revenue. He said there were further attempts to change details on the accounts before the decision was made to delete them altogether.

The prosecution case is that Mr Daly was centrally involved in selecting and managing the team which was assigned to provide details of certain non-resident accounts to Revenue during their investigation.

Counsel said Ms Maguire was on this team but worked separately to the others and that the evidence was that she reported directly to Mr O’Mahoney.

Counsel said Mr O’Mahoney was also involved in setting up the team. He told the jury that Mr O’Mahoney asked the team leader, Zita Madden, if she would be willing to delete an account if asked and that she was removed from the team when she said she was uncomfortable with the request.

Mr McGinn said the ultimate act of conspiracy was the archiving of six accounts so that they would not be visible on the bank’s computer system. All these accounts were connected to Mr FitzPatrick, including one which was originally called the Sean FitzPatrick/Crohan O’Shea trust before it was changed to simply Crohan O’Shea Trust.

Two additional accounts, called Carnahalla Ltd, were not archived but their details were altered on the system, counsel said. The court heard Mr O’Mahoney was involved in one of these accounts as he took out a loan, along with Mr FitzPatrick, using the account to do a share deal.

Mr McGinn said Ms Maguire instructed IT staff to delete the six accounts but that like Ms Madden and Mr Gillespie, they were uncomfortable doing this. Instead they archived the accounts which meant they would appear to be deleted but would still be recoverable.

Counsel said Ms Maguire was “centrally involved” in making these changes and that there were email records to show this.

Counsel for Mr Daly, Sean Guerin, will begin his closing speech on Monday. The jury is expected to begin deliberations on Tuesday.

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