Thursday 27 April 2017

Sean FitzPatrick lawyers accuse investigators of crafting and creating statements

Sean Fitzpatrick
Sean Fitzpatrick

Declan Brennan

Lawyers defending Sean FitzPatrick have accused investigators of crafting and creating statements in order to get evidence to prosecute the former Anglo Irish Bank chairman.

Mr FitzPatrick (68) is accused of misleading auditors about multi-million euro loans from 2002 to 2007. He has denied all charges.

On day 75 of the trial at Dublin Circuit Criminal Court, Bernard Condon SC, defending, finished his lengthy cross-examination of Kevin O'Connell, a lead investigator from the Office of the Director of Corporate Enforcement (ODCE).

During seven days in the witness box, Mr O'Connell admitted that the methods used to produce statements from witnesses in the investigation were wrong and unlawful.

He told Mr Condon that the mistakes he made were down to his inexperience of investigating criminal offences and denied they were part of a deliberate effort to get a prosecution at all costs.

On Friday, Mr Condon put it to him that the investigation was “a shambles” and one which “you should not take any pride in and one which the ODCE should never repeat”.

Mr O'Connell replied that he took no pride whatsoever in all the manifold mistakes made by him. He said that since these mistakes were deemed unlawful by Judge Mary Ellen Ring during the first trial in May 2015, the ODCE has modified its practices.

The jury heard that in February 2012, Mr O'Connell's then boss, previous director of corporate enforcement, Paul Appleby, wrote to an ODCE colleague thanking her for her work. He said: “Let's hope we get prosecutable offences out of all your work”.

Mr Condon said this comment by Mr Appleby spoke volumes about a desire of the ODCE to prosecute Mr FitzPatrick.

“Nothing was going to stop you,” counsel said. The witness replied that they would have been stopped if relevant evidence had not been available.

“So what you did was crafted and created witness statements so you could get evidence,” Mr Condon said. Mr O'Connell repeated that his inexperience and a lack of input from other colleagues led to mistakes being made.

Mr Condon said the statements of witnesses from Anglo's auditors EY (formerly Ernst & Young) were a result of coaching and contamination. He said they were statements by a committee formed by a triangle of three separate bodies, the ODCE, EY and A&L Goodbody, a legal firm representing EY.

He named 22 people. These included five gardaí, four people and “other unknown persons” from EY and Liam Kennedy, a partner with A&L Goodbody.

Mr O'Connell agreed that these people were involved “to one degree or another” in the drafting of statements using methods later ruled to be unlawful.

Earlier this week the jury saw a note to garda management stating that no gardaí were involved in the drafting of the statements.

The jury also heard previously that during the first trial in May 2015, Mr O'Connell shredded documents relevant to the investigation. On Friday, he told Dominic McGinn SC, prosecuting, that the five pages destroyed would have been jottings and scribbled notes of phone calls.

He said that the investigation into Anglo had created thousands of paper documents, as well as 850,000 electronic documents. He said not all of these would be relevant to the audit fraud offences before the court.

Mr FitzPatrick, of Whitshed Road, Greystones, Co Wicklow, has pleaded not guilty to 27 offences under the 1990 Companies Act. These include 22 charges of making a misleading, false or deceptive statement to auditors and five charges of furnishing false information in the years 2002 to 2007.

The trial continues before Judge John Aylmer next Thursday.

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