Sunday 23 July 2017

FitzPatrick investigator unhappy at lack of garda involvement

Trial: Sean FitzPatrick outside Dublin Circuit Criminal Court. Photo: Collins
Trial: Sean FitzPatrick outside Dublin Circuit Criminal Court. Photo: Collins
Shane Phelan

Shane Phelan

A lead investigator in the Sean FitzPatrick loans probe has claimed garda colleagues did not engage sufficiently with the investigation.

Office of the Director of Corporate Enforcement (ODCE) legal adviser Kevin O'Connell lamented what he called a lack of "buy-in" by detectives seconded to the companies watchdog.

The comments were made in an email from Mr O'Connell to his boss, then director of corporate enforcement Paul Appleby, in July 2011.

A jury at Dublin Circuit Criminal Court heard that Mr O'Connell was frustrated by what he felt was a lack of engagement by gardai with the FitzPatrick probe and that be believed other Anglo Irish Bank-related investigations were taking priority.

The disclosure came on Friday. Earlier in the week Mr O'Connell admitted making a number of mistakes in his conduct of the investigation.

He claimed he was thrust into a lead role in the probe, despite having little experience, because gardai at the ODCE were engaged elsewhere.

Frustrated: Kevin O’Connell, legal adviser with the Office of Director of Corporate Enforcement. Photo: Collins
Frustrated: Kevin O’Connell, legal adviser with the Office of Director of Corporate Enforcement. Photo: Collins

"There were simply not enough gardai to do everything," he said.

The trial has heard how Mr O'Connell organised the taking of statements from two key witnesses, Ernst & Young auditors Kieran Kelly and Vincent Bergin.

But the witnesses ended up being "coached" on their statements by the ODCE and legal advisers, in a process Judge John Aylmer has ruled to be unlawful.

This involved a series of meetings and other discussions where wording was suggested by Mr O'Connell and Mr Appleby.

Mr O'Connell has claimed garda colleagues and the Office of the Director of Public Prosecutions knew how the statements were drafted but did not intervene to say anything was wrong with the process.

The court has heard both Mr Kelly and Mr Bergin will stand over the contents of their statements.

Mr O'Connell also admitted in court to shredding four or five case documents which should have been disclosed to the defence team.

He claimed this was done "in a panic" at a time of "enormous stress".

Mr FitzPatrick (68), of Whitshed Road, Greystones, Co Wicklow, has denied 27 charges related to the alleged misleading of auditors about the size of multi-million euro loans he had from Anglo between 2002 and 2007, contrary to Section 197 of the Companies Act 1990.

The jury has heard how at a meeting with officials from the Departments of Justice and Jobs, Enterprise and Innovation, the ODCE had given assurances that the investigation would be completed by the end of 2011.

However, Mr O'Connell believed this target could not be met owing to a lack of engagement by garda colleagues.

"At the heart of the problem, in my view, is that our garda colleagues do not seem to have bought into the Section 197 investigation to anything like the same extent as the Section 60 and other matters," he said.

The jury heard that Section 60 referred to another Anglo investigation which was under way at the time.

Mr O'Connell complained that he and a colleague, Phyllis Kelly, had "done huge amounts of work" trying to move the case along.

"In my own case I have on a few occasions been in here at weekends and sometimes on weekday evenings to work on quite late," he told Mr Appleby.

"I have also been fairly minimal in planning and taking annual leave because of my expectation that we are only just a little away from a time Section 197 would suddenly move to centre stage and there would be a huge burst of combined effort, concluding in a file to the DPP.

"However, as Phyllis said this morning, our sense is that we have been working in a vacuum."

He added that he felt the case "requires a buy-in from our garda colleagues of equivalent proportions to their buy-in to Section 60".

Under cross examination, Mr O'Connell said he didn't think Mr Appleby replied to the email and he didn't know if there had been any conversation with gardai about his concerns.

The case is set to continue next Thursday.

Sunday Independent

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