Sunday 18 March 2018

No garda probe of FitzPatrick investigator over destruction of case documents - court hears

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

No garda investigation 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 advisor 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 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 27 charges.

The court heard earlier this week that Mr O’Connell shredded four or five documents on May 1, 2015 which should have been disclosed to Mr FitzPatrick’s defence team. He claimed he did so in “a panic” as he was “terrified” at the prospect of having to tell a court why they had not been disclosed.

Bernard Condon SC, for Mr FitzPatrick, told a jury today 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, despite this, there had been no garda investigation.

The jury heard that the head of the Garda National Economic Crime Bureau, Detective Chief Superintendent Pat Lordan, had confirmed to the court no investigation had taken place.

Mr Condon said the defence team had been seeking to find out if an investigation had occurred into the shredding “for some time”.

But the fact there had been no investigation was only disclosed to them 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 would be “a serious outcome” for him.

Mr Condon observed that someone who had destroyed evidence “would expect to have their collar felt”.

“Yes. Such a person would expect that to happen,” said Mr O’Connell.

The court was also told Mr O’Connell was concerned evidence he gave to the trial could be used against him and that he had indicated last year he may exercise his right not to incriminate himself.

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

A letter was written by his solicitor, James Macguill, to the Director of Public Prosecution on October 12 last raising the issue.

The court was told the Office of the DPP wrote back giving a limited assurance to Mr O’Connell.

The letter said: “Without prejudice to the question of whether or not the acts of your client amount to the commission of any offence and in order to address the concerns expressed by your client and to vindicate the defence right of cross examination of your client, the Director indicates that no evidence given by your client in this trial or any further trial of Mr FitzPatrick concerning the above incident will be used in any criminal proceedings against your client.”

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 Condon said prosecution counsel Dominic McGinn SC would say that the DPP’s letter did not offer an immunity at all.

The case continues.

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