Saturday 1 October 2016

Retrial ordered for former Anglo Irish Bank chief operations officer after conviction quashed

Published 12/04/2016 | 12:19

Former Anglo Irish Bank official Tiarnan O'Mahoney. Pic: Court Collins.
Former Anglo Irish Bank official Tiarnan O'Mahoney. Pic: Court Collins.

The Court of Appeal has ordered a retrial for Anglo Irish Bank's former Chief Operations Officer, Tiarnan O'Mahoney, following the quashing of his conviction last month.

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O'Mahoney (56) of Glen Pines, Enniskerry, Co Wicklow along with Bernard Daly (67), of Collins Avenue, Whitehall, Dublin 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 Mr O'Mahoney for three years and Mr Daly for two years on July 31, 2015.

The Court of Appeal quashed the former executives' convictions last month on several grounds including the wrongful admission of a substantial number of documents and that the furnishing of false information charge was not commenced within the ten year time limit.

The case returned to the Court of Appeal today/yesterday(TUESDAY) to determine whether Mr O'Mahoney should face a retrial on the alleged conspiracy offences and to hear arguments on the question of legal costs for both former Anglo officials.

Mr Justice George Birmingham said that ordinarily where a conviction has been quashed and quashed because of matters at trial that are capable of being remedied, justice would lean toward a retrial.

Ordering the provision of a retrial for Mr O'Mahoney, Mr Justice Birmingham said there were no particular circumstances in this case that would require or justify a departure from the norm.

On the question of legal costs for Mr O'Mahoney, who has not been on legal aid, the court heard, Mr Justice Birmingham said the court would award costs for the appeal and anciliary applications. But no costs were awarded for the original trial and the question of awarding costs for any retrial of Mr O'Mahoney was reserved.

In Mr Daly's case, the court awarded costs for his trial, appeal and bail applications on a party for party basis.

Mr Justice Birmingham said costs were ordinarily awarded on a party for party basis and not on a solicitor-client basis, as was applied for by counsel for Mr Daly, Seán Guerin SC.

Only in extraordinary circumstances would the court award costs on a solicitor-client basis, the judge said.

The question of a retrial for Mr Daly did not arise because, the court concluded last month, that there was insufficient evidence to go before the jury in respect of the offences for which he stood trial.

Quashed

Quashing the former Anglo executives' convictions last month, Mr Justice George Birmingham said they “should not have had to stand trial” on the charge of furnishing false information because the proceedings were not commenced within the ten year time limit.

The decision to reformulate the charges after they were formally charged was made because the prosecution discovered that there would be a complete defence to the charge that had been presented originally, the judge said.

Because of the reformulation, the proceedings for which Mr Daly and Mr O'Mahoney stood trial were not commenced within the ten year limit, the judge said.

In addition, the charges originally proferred alleged that as officers of the company they consented to the commission of the offence but the offences on which they stood trial saw them charged as principles, the judge said.

Mr Justice Birmingham said the documents, which the trial judge ruled admissible, were “vital to the prosecution case”. These documents allowed the witnesss – a fraud investigator within Anglo, Patrick Peake – to trace for the jury and to explain and illustrate the means by which Anglo accounts were opened, kept, how ownership was designated, how funds were sourced, moved between different accounts and how the names of different accounts were changed or re-designated at various times.

In circumstances where crucial documentary evidence was admitted in breach of the hearsay rule, Mr Justice Birmingham said the could must uphold this ground of appeal.

Furthermore, the Court held that the conspiracy counts as alleged against Mr Daly ought to have been withdrawn from the jury.

Seán Guerin SC, for Daly, said the prosecution case against his client rested “almost entirely” on the bank's former head of compliance – a Brian Gillespie.

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

Mr Justice Birmingham said that where there was cogent evidence that Mr Daly was ascertaining whether Mr Gillespie would be party to impropriety, there had to be strong suspicion that Mr Daly was involved in further impropriety and, it was contended, that the conspiracy couldnt' have succeeded without him.

However, this contention went further than was justified, Mr Justice George Birmingham said.

The evidence available to the prosecution was thin, tenuous and in those circumstances, the court feels that “notwithstanding the level of suspicion that existed”, it would have been appropriate to withdraw the conspiracy case against Mr Daly from the jury.

Mr Justice Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice John Edwards, said the conclusions reached by the court meant their convictions “must be quashed”.

The question of a re-trial did not arise for Mr Daly because, the court concluded, that there was insufficient evidence to go before the jury.

Mr O'Mahoney's position was different. His “omnibus” ground of appeal concerning multiple complaints related to the trial in the summer of 2015 and did not affect the question of a retrial, the judge said.

The ground on which he succeeded did not preclude the ordering of a re-trial. The court will hear further submissions on this point at a later date. He was subsequently released on bail.

Giving background, Mr Justice Birmingham said the Revenue Commissioners conducted an audit of Anglo Irish Bank in 1999/2000 in relation to Deposit Interest Retention Tax. IN teh course of a subsequent tax amnesty a number of Anglo clients came forward to disclose that they had non-resident accounts which renewed the Revenue's interest in the institution.

In March 2003, the Revenue obtained High Court orders rewquiring Anglo to hand over details of non-resident deposit accounts in the bank. IN addition, the Revnue intitiated a second DIRT audit of the bank which was formally opened in November 2003.

The so called subtantive offence- the furnishing of false information – related to a list for 1995 which was physically handed by Bernard Daly to the Revenue on November 17, 2003.

The prosecutions' case was that it was incomplete in that it did not contain an account held in the name of John Peter O'Toole and that its exclusion was “prompted by the fact that the account was connected to a named senior figure in the bank”.

Mr O'Mahoney, who had been the bank's second in command at one point, was subsequently given a provisional trial date of October 9, 2017 by Judge Melanie Greally at Dublin Circuit Criminal Court.

Counsel for Mr O'Mahoney, Brendan Grehan SC, had told the Court of Appeal that a number of upcoming “Anglo cases” would be “sequenced in a certain way” due to the mentioning of certain persons and it was unclear when Mr O'Manohey's retrial could take place.

Mr O'Mahoney was remanded on continuing bail until July 22 next when the case will be up for mention at Dublin Circuit Criminal Court.

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