Monday 18 December 2017

Witness in Sean FitzPatrick trial denies investigation was 'some sort of a crusade'

Sean Fitzpatrick. Photo: Collins Courts
Sean Fitzpatrick. Photo: Collins Courts

Declan Brennan

The lead investigator into alleged crimes by Sean FitzPatrick, the former chairman of Anglo Irish Bank, failed to conduct a fair investigation, a court has heard.

Kevin O'Connell, the lead investigator with the Office of the Director of Corporate Enforcement (ODCE), admitted that he had been at times “spectacularly naive” and regretted some aspects of the investigation.

But he denied the investigation was “some sort of a crusade” and said that any mistakes made were down to a lack of experience and resources in the ODCE.

Mr FitzPatrick (68) is accused of failing to disclose multi-million euro loans to auditors. The prosecution alleges that the amount of the loans was “artificially reduced” for a period of two weeks around the bank's financial end of year statement by short term loans from other sources, including Irish Nationwide Building Society.

On day 69 of the trial Bernard Condon SC, defending, told Mr O'Connell that he would be arguing that the investigation by marked by coaching and contamination.

“You failed to conduct a fair investigation. Your investigation of this matter was one marked by coaching of witnesses,” Mr Condon said.

He said that the two witnesses from the bank's auditors, EY (formerly called Ernst & Young), were coached and were also permitted to read each other's statements in advance.

“You permitted them to be contaminated by each other,” counsel said.

The witness agreed that he would have anticipated this line of questioning “based on proceedings to date”. The jury heard that the Mr Condon had previously cross-examined the witness on these issues, once during the first trial in April 2015 and secondly during the legal argument as part of the current trial.

Mr O'Connell said he had a leading role in the investigation's interaction with EY. He agreed with Mr Condon that in this context he had more involvement with A&L Goodbody, the “big firm” of solicitors that represented the auditors from 2009, that he had with the auditors.

Asked if the involvement of the solicitors in the investigation was regrettable, the witness replied: “I accept that at this stage, looking back it would have been preferable if the investigation had been conducted with less involvement with solicitors for Ernst&Young”.

Mr O'Connell said that his role in the ODCE was that of a legal advisor and that this investigation was the first time he had been centrally involved in conducting a criminal investigation.

He accepted that he had made mistakes in the course of the investigation but said they were made “in honest and good faith”.

He said there was a resources issue and that the limited numbed of gardaí on secondment to the ODCE were predominantly devoted to another investigation.

“Too few of us were trying to do too much with too little real experience,” he said.

Mr FitzPatrick of Whitshed Road, Greystones, Co Wicklow has pleaded not guilty at Dublin Circuit Criminal Court to 27 offences under the 1990 Companies Act. These include 22 charges of making a misleading, false or deceptive statement to auditors and five charges of furnishing false information in the years 2002 to 2007.

The trial continues on Friday.

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