Witnesses in FitzPatrick trial 'coached' on statement, court hears
Two key witnesses in the trial of former Anglo Irish Bank chairman Sean FitzPatrick were "coached" on the contents of statements they gave to investigators, a court has heard.
The bombshell claim was made by a lawyer representing Mr FitzPatrick (68), of Whitshed Road, Greystones, Co Wicklow, who denies 27 charges of misleading auditors about the size of multi-million euro loans he had from the bank.
The man who led the probe, Office of the Director of Corporate Enforcement (ODCE) legal adviser Kevin O'Connell, admitted in court to having been "spectacularly naïve" at times, but denied defence claims the investigation was "unfair".
Mr FitzPatrick's barrister Bernard Condon SC said the investigation had been "marked by coaching" of key witnesses, Ernst & Young auditors Kieran Kelly and Vincent Bergin.
Mr Kelly was Anglo's auditor between 2002 and 2004, while Mr Bergin audited the bank between 2006 and 2007.
Mr Condon said the witnesses were "permitted to contaminate each other" by viewing each other's statements before they were submitted.
He also said several draft statements were exchanged "forward and back" between Ernst & Young's legal advisers A&L Goodbody and the ODCE between 2010 and 2012 before final statements were delivered.
The barrister said investigators had a responsibility to be fair, but Mr O'Connell had not conducted a fair investigation.
Mr Condon pointed to letters and emails which, he said, gave the impression Mr O'Connell and the then director of corporate enforcement, Paul Appleby, had made up their minds at an early stage that charges should be brought against Mr FitzPatrick.
Mr Condon said one document, in which Mr O'Connell indicated the ODCE was not investigating the adequacy of Ernst & Young's audits, showed that the ODCE had already made up its mind that Ernst & Young was not at fault.
"I am challenging you that from the beginning the ODCE had taken the position that Ernst & Young was going to be on the side of the angels and Sean FitzPatrick in the other corner," said Mr Condon.
But Mr O'Connell denied he had been on "some sort of crusade" against the former Anglo chairman and insisted he had sought to identify weaknesses in the case and contradictory evidence as well as evidence of guilt. "I had an open mind about this investigation," he said.
Mr Condon said documents showed Mr O'Connell had already drafted potential charges against Mr FitzPatrick in May 2009, before the auditors had even been interviewed.
Mr O'Connell told the court that the case was "the first significant indictable offence the ODCE had investigated" and admitted he had not had any prior experience of conducting such a criminal investigation.
He said his role up to then had been that of a legal adviser, rather than a lead investigator.
Mr O'Connell said his prominent role in the investigation "was a resources issue".
Gardaí seconded to the ODCE were "primarily deviated to another block of work," he said.
Mr O'Connell accepted he had "made mistakes", but said these had been made "in honest and good faith" and no one had sought to correct him.
"The lack of feedback and criticism from people suggested I was doing the right thing," he said.