Wednesday 24 January 2018

Gardaí never probed 'criminal' shredding of notes by official in FitzPatrick inquiry

ODCE legal adviser Kevin O’Connell. Photo: Collins Courts
ODCE legal adviser Kevin O’Connell. Photo: Collins Courts
Shane Phelan

Shane Phelan

No garda inquiry was conducted into the shredding of case documents by a lead investigator in the Sean FitzPatrick loans probe, a court has heard.

Dublin Circuit Criminal Court was also told the investigator, Office of the Director of Corporate Enforcement (ODCE) legal adviser Kevin O'Connell, was given a "qualified immunity" from prosecution so he could testify in the case. The court also heard he had not been disciplined by the ODCE.

Defence lawyers claimed gardaí had failed to carry out their duties when they did not investigate what amounted to a criminal offence.

Mr O'Connell was a leading figure in the ODCE's investigation of Mr FitzPatrick over his alleged misleading of the auditors of Anglo Irish Bank about the size of multi-million euro loans he had from the bank between 2002 and 2007.

Mr FitzPatrick, who was Anglo's chairman, has denied making misleading, false or deceptive statements to auditors.

The court heard earlier this week that Mr O'Connell shredded four or five documents on May 1, 2015.

The trial of Mr Fitzpatrick continues. Photo: Collins Courts
The trial of Mr Fitzpatrick continues. Photo: Collins Courts

He believed these were notes of conversations with lawyers representing auditing firm Ernst & Young who were involved in the drafting of statements by two key witnesses.

Mr O'Connell claimed he destroyed them in "a panic" as he was "terrified" at the prospect of having to tell a court why they had not been disclosed.

The jury was yesterday shown CCTV footage of Mr O'Connell leaving the shredding room at the ODCE's offices swinging an empty tray in his hand. Bernard Condon SC, for Mr FitzPatrick, said the shredded documents were "relevant" to the case and should have been disclosed to the defence. This was accepted by Mr O'Connell.

He also accepted it was an offence to destroy documents material to a criminal investigation.

Mr Condon said that, despite this, there had been no garda investigation.

Jurors heard that the head of the Garda National Economic Crime Bureau, Detective Chief Superintendent Pat Lordan, had previously confirmed no investigation had taken place.

Mr Condon said the defence team had spent "some time" trying to find out if an investigation had occurred into the shredding. But the fact there had been no investigation was disclosed to them only last October.

Mr O'Connell told the court he had expected there would be repercussions for him "such as criminal investigation or disciplinary proceedings".

He said that when he admitted about the shredding to his boss, Director of Corporate Enforcement Ian Drennan, on May 4, 2015, he did so knowing there could be "a serious outcome" for him.

He agreed with Mr Condon that someone who had destroyed evidence "would expect to have their collar felt".

The court was also told Mr O'Connell became concerned last October that evidence he gave to the trial could be used against him and indicated he was considering exercising his right not to incriminate himself.

"In American terms they call it pleading the fifth," Mr Condon told the jury. "A person does not have to answer a question where they could incriminate themselves."

A letter was written by Mr O'Connell's solicitor, James Macguill, to the Director of Public Prosecution on October 12 raising the issue.

The Office of the DPP subsequently wrote back stating no evidence given by him concerning the shredding of documents would be used in evidence in any criminal proceedings against him.

Mr Condon said this amounted to "a qualified immunity" that anything Mr O'Connell said at the trial could not be used against him.

The barrister said, however, that in reality the immunity enjoyed by Mr O'Connell was wider than what was said in the DPP's letter.

"I am suggesting to you, you have effectively been given an immunity by the failure of the gardaí, I would assert, to carry out their duties," he said.

Mr O'Connell did not accept he had been given immunity but accepted he had the benefit of the DPP's undertaking. Mr Condon said prosecution counsel Dominic McGinn SC would say that the DPP's letter did not offer an immunity at all.

The trial of Mr Fitzpatrick continues.

Irish Independent

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