Thursday 22 February 2018

Sean FitzPatrick's lawyer questions reliability of prosecution witness

Sean FitzPatrick Photo: Collins Courts
Sean FitzPatrick Photo: Collins Courts

Shane Phelan Legal Affairs Editor

Lawyers for former Anglo Irish Bank chairman Sean FitzPatrick have questioned the reliability of a prosecution witness in his trial for misleading auditors about loans.

The claim was made about a partner at Ernst & Young who audited Anglo between 2002 and 2004.

Kieran Kelly admitted in court today he had given misleading evidence at a previous trial of Mr FitzPatrick about the manner in which a witness statement was taken from him.

He told the court this was due to him not remembering at the time the process that had been used.

Dublin Circuit Criminal Court heard today that at the previous trial in 2015, Mr Kelly said the witness statement he gave was his “own words” compiled under questioning from a garda and an official from the Office of the Director of Corporate Enforcement (ODCE).

However, he accepted today this was not correct.

A jury has heard from Mr Fitzpatrick's defence team that his statement was compiled with input from the ODCE and lawyers working on behalf of Ernst & Young.

Defence barrister Bernard Condon has said Mr Kelly and another auditor, Vincent Bergin, were “coached” in a manner deemed by two judges to have been unlawful.

Mr Kelly also admitted today he had been wrong when he previously claimed he had not read any other witness statements before making his own.

He admitted he had read a statement made by Mr Bergin.

Mr Condon said he had to put it to Mr Kelly that he was an ”unreliable” witness.

“You remember evidence now you didn’t before,” he said.

“It is fair to say there is a question mark over the accuracy of your recall.”

Responding, Mr Kelly said he always tried to give answers to the best of his recollection.

The court heard that subsequent to the previous trial, which did not come to a conclusion, Mr Kelly gave a statement to gardaí in January 2016 correcting mistaken testimony he gave in court.

Speaking about his previous testimony, given on May 14, 2015, he said: “I think it is fair to say that on May 14 I didn’t remember the entirety of the process.

“So to that extent, I was answering from my recollection. My recollection wasn’t complete.”

His subsequent statement to gardaí came about after he was able to review files detailing the process through which his statement was taken.

“This helped me remember and I thought it important at that point to come and clarify things,” he said.

Mr Condon said he was not for a moment suggesting Mr Kelly had perjured himself or wilfully misled the court at the previous trial.

“It seems to me it was a lack of memory,” the barrister said.

Mr Condon said that through circumstances Mr Kelly had given evidence that was misleading and when the opportunity arose he corrected it.

Mr Kelly accepted this was the case.

Jurors were told how Mr Kelly’s draft statement was reviewed by a number of lawyers, including a solicitor and a barrister working for Ernst & Young.

The court heard that he had a meeting with Liam Kennedy, a partner in A&L Goodbody, in November 2011.

A note of the meeting contained a reference to the adequacy of audits carried out at Anglo.

Mr Kelly said he did not accept that those comments amounted to an acceptance by him that there was “something lacking” in the audit.

He also told the court he would have had no problem giving a statement without having Ernst & Young’s lawyers present if he had been asked to do so.

Mr Kelly said he was “surprised” by testimony from ODCE investigator Kevin O’Connell, who said he had not believed Mr Kelly would have cooperated without lawyers being present.

“I can’t think of any reason why Kevin O’Connell would have cause to believe I wouldn’t have met the guards without Ernst & Young’s lawyers being present,” he said.

Mr FitzPatrick (68), of Whitshed Road, Greystones, Co Wicklow, denies charges of misleading auditors about the size of multi-million euro loans he received from Anglo between 2002 and 2007.

The case continues.

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