Tuesday 23 January 2018

Witness rules changed after FitzPatrick probe 'mistakes'

ODCE legal adviser Kevin O’Connell
ODCE legal adviser Kevin O’Connell
Shane Phelan

Shane Phelan

Procedures for taking statements from witnesses were changed by the Office of the Director of Corporate Enforcement (ODCE) after "mistakes" made by the lead investigator in a probe into Anglo Irish Bank chief executive Sean FitzPatrick came to light.

ODCE legal adviser Kevin O'Connell led the taking of statements from two Ernst & Young employees who audited the accounts of Anglo.

But after a series of issues were raised about Mr O'Connell's conduct by lawyers for Mr FitzPatrick in 2015, the ODCE changed its procedures so that only gardaí on secondment there can take statements in criminal investigations.

Mr FitzPatrick's counsel Bernard Condon SC has alleged the two witnesses were "coached" on their evidence and allowed to "contaminate" each other's statements.

Mr O'Connell admitted at Dublin Circuit Criminal Court yesterday he had made mistakes and that the ODCE had changed its practices as a result of these failings being highlighted.

The changes were implemented following the 2015 trial of Mr FitzPatrick, which did not reach a conclusion.

A new trial began last September and has been running for 69 days.

Mr FitzPatrick (68), of Whitshed Road, Greystones, Co Wicklow, denies 27 charges of misleading the auditors about the size of multi-million euro loans he had with Anglo between 2002 and 2007.

He resigned from the bank in 2008 after it emerged he had failed to disclose the size of the loans to shareholders.

Mr O'Connell admitted he had not been trained in the taking of statements and only became the leader of the investigation because gardaí at the ODCE were "flat out advancing other matters".

He said he and other ODCE staff involved in the probe did not have the necessary skills needed for a criminal investigation.

"At the time we did not appreciate the risks created by people like me or my colleagues undertaking work that would have been better done by our garda colleagues," he said.

Mr Condon SC accused Mr O'Connell of having sought to put himself "front and centre" in the investigation, but Mr O'Connell denied he had sought "the limelight". He said he took the lead role because gardaí seconded to the ODCE were diverted by other work.

Mr O'Connell also said the ODCE team did not have enough resources.

However, the court heard that he did not speak up when asked about resources at a meeting with the Department of Jobs in May 2011.

He told the court the then Director of Corporate Enforcement, Paul Appleby, was satisfied with resources and he did not think he was entitled to "go on a solo run" on the issue.

Mr Condon accused Mr O'Connell of not asking the auditors certain questions because it might "undermine" his case.

He referred to an email Mr O'Connell had sent to colleagues in April 2010 in which he stated that the auditors should not be asked if they had reminded Anglo directors it was an offence to mislead an auditor.

Mr Condon said the comments were "a matter of outrage".

"I think it was a very serious mistake," Mr O'Connell replied.

The case continues.

Irish Independent

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