DPP knew in 2010 of fears about key witness statements
The Office of the Director of Public Prosecutions (DPP) was made aware several years ago of the questionable manner in which statements had been taken from key witnesses in the Sean FitzPatrick loans case.
The disclosure has raised serious questions about the DPP's decision not to intervene or raise concerns with the Office of the Director of Corporate Enforcement (ODCE), which was leading the probe.
Defence lawyers questioned why the prosecution of Mr FitzPatrick proceeded at all, when it was clear the methods used to take statements could give rise to accusations of witness coaching. The manner in which statements were taken from two of Anglo Irish Bank's auditors, EY partners Vincent Bergin and Kieran Kelly, was ruled to be unlawful by trial judge John Aylmer. But he was initially prepared to allow their evidence go before the jury in line with a Supreme Court ruling that means illegally obtained evidence can be used in certain circumstances.
Following a renewed, successful application by Mr FitzPatrick's defence to stop the trial, Judge Aylmer yesterday ruled the statement-taking process led to the statements of Mr Bergin and Mr Kelly being "scripted, coached, contaminated by the views of others, including the ODCE and cross-contaminated in every significant detail from start to finish".
In evidence given when the jury was not present, ODCE lead investigator Kevin O'Connell told Dublin Circuit Criminal Court he informed the DPP's office in 2010 and again in 2012 of the "tripartite" manner in which statements were taken from two auditors at Ernst & Young. "Aspects which it is now contended were headline instances of coaching were being disclosed to the Office of the DPP at that time," he said.
Instead of bringing the auditors to a Garda station to answer questions, as is the norm in criminal investigations, the ODCE engaged in a lengthy process with EY and its solicitors A&L Goodbody. Draft statements were initially drawn up by lawyers and circulated between the auditors, legal staff in EY, and the ODCE over several months. Changes were made to the statements at the suggestion of Mr O'Connell and then ODCE director Paul Appleby.
The court heard there were at least 53 different drafts of a statement by Mr Bergin, and 39 different drafts of Mr Kelly.
In December 2010, around a year after the probe began, Mr O'Connell submitted a report to the Office of the DPP describing the process used.
In his ruling yesterday, Judge Aylmer said that had the defence cross-examination in respect of certain matters of Mr Bergin and Mr Kelly been less skilful, "no amount of warnings by the court to the jury of the dangers arising from the fact that the evidence of these witnesses had been coached from start to finish could have compensated for the pernicious effect that that process had on the testimony of those witnesses".