Tuesday 23 January 2018

FitzPatrick investigator 'ashamed' over destruction of case documents

Legal adviser concealed the papers from garda on his way to shredding room, court told

Sean FitzPatrick at the Dublin Circuit Criminal Court yesterday Photo: Collins Courts
Sean FitzPatrick at the Dublin Circuit Criminal Court yesterday Photo: Collins Courts
Shane Phelan

Shane Phelan

A lead investigator in the Sean FitzPatrick loans probe has said he was "ashamed" of the fact he destroyed documents relevant to the case while in a state of "panic".

Kevin O'Connell discovered the documents in his office a day after he had finished giving evidence in a previous trial of former Anglo Irish Bank chairman Mr FitzPatrick in 2015, which did not come to a conclusion.

Kevin O'Connell, a legal adviser at the Office of the Director of Corporate Enforcement Photo: Collins Courts
Kevin O'Connell, a legal adviser at the Office of the Director of Corporate Enforcement Photo: Collins Courts

While he handed over most of what he found to the Office of the Director of Public Prosecutions, he subsequently destroyed other documents after becoming "terrified" at the prospect of having to explain in court why these had not been disclosed to Mr FitzPatrick's defence team.

Mr FitzPatrick (68), of Whitshed Road, Greystones, Co Wicklow, is on trial on charges of misleading the bank's auditors, Ernst & Young, about the size of multi-million euro loans he had with Anglo between 2002 and 2007. He has pleaded not guilty.

CCTV footage of Mr O'Connell, a legal adviser at the Office of the Director of Corporate Enforcement (ODCE), bringing the documents to a shredding room was shown to a jury at Dublin Circuit Criminal Court yesterday.

Under questioning from defence counsel Bernard Condon SC, he accepted he had attempted to conceal the documents from a garda colleague as he approached the shredding room.

The court heard Mr O'Connell found 16 pages of documents in his office on the afternoon of Friday, May 1. Realising he had made "the worst form of mistake", he went to his boss, director of corporate enforcement Ian Drennan.

The documents were immediately scanned and forwarded to the Office of the DPP.

When Mr O'Connell returned to his office, he discovered four or five more pages of documents which should also have been disclosed. But instead of ensuring these, too, were forwarded to the DPP, he took the documents to a room in the ODCE's offices and shredded them. Mr O'Connell said he was "ashamed" of his actions.

"It should not have happened," he said.

Pressure

Mr O'Connell said he was under "considerable pressure" at the time. He had just given six days of evidence and, after discovering the first 16 pages, had been informed by Mr Drennan he would need to go back into the witness stand to explain why they had not been originally disclosed.

"I was terrified of that prospect," he said.

The experience of being cross-examined was "very unexpected and very new" to him, and he felt "a panic about it". He said: "I was under enormous strain, more than I had ever been in my career to date." However, Mr O'Connell said he realised this was no excuse.

Footage showed a garda colleague entering Mr O'Connell's office after he discovered the documents and staying there for 37 minutes. Mr O'Connell admitted he did not mention the documents to the garda.

"My panic-induced, wrong, mistaken, unethical decision to destroy them had already been formed," he said. Mr Condon said it was "an appalling thing for a state investigator to do" and "an absolute disgrace". Mr O'Connell accepted that it was.

He said that after "agonising" about it over the weekend, he contacted Mr Drennan about it the following Monday.

"It was shameful, wrong and outrageous; 48 hours later, I did the right thing, admitting to the wrong thing I had done. I am glad I did. I couldn't have lived with myself if I hadn't done it," he said.

The trial has heard claims from the defence that the statements of Ernst & Young staff Kieran Kelly and Vincent Bergin, who both audited Anglo, were "coached" by the ODCE.

Evidence has been heard that the statements were composed with input from the ODCE, Ernst & Young and its legal advisers. Jurors have been told two judges had ruled the process used to collect their statements was unlawful.

The court heard a report forwarded to an assistant garda commissioner in June 2015 stated gardaí on secondment at the ODCE were not involved in the drafting of the statements.

The report, written by Detective Inspector Ray Kavanagh, also said: "The garda unit members had no involvement in the damaging of disclosable documents by the ODCE."

However, Mr O'Connell took issue with this report and insisted Det Insp Kavanagh was present at meetings where drafts of the statements were discussed.

The case continues.

Irish Independent

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