Expert testimony cost €300K - but most of Mazar men's evidence was 'inadmissable'
The ODCE spent more than €300,000 on expert testimony for the Sean FitzPatrick trial, the securing of which breached EU laws on public procurement.
Most of the evidence from two experts who work in London accountancy firm Mazars could not go before the jury.
The evidence of one Mazars witness, Nigel Grummit, was deemed inadmissible by trial judge John Aylmer as being "irrelevant, unhelpful, unnecessary and of no probative value and being entirely prejudicial".
The evidence of the other Mazars expert, forensic accountant David Dearman, was deemed admissible but only after his report was revised to incorporate "significant concessions" made by the prosecution following a series of challenges by Mr FitzPatrick's defence team.
The manner in which the ODCE secured the cross-border tender was the subject of prolonged legal argument in the absence of the jury during the mammoth trial. In August 2014, Kevin O'Connell wrote to an official at the Department of Jobs, Enterprise and Innovation, stating that "in conducting the procurement process we have sought to comply fully with all relevant requirements".
Under cross-examination, however, by Mr FitzPatrick's barrister Shelley Horan, Mr O'Connell agreed that statement was not accurate. "We were seeking to indicate the extent to which we were operating within the broad spirit of public procurement law, if not in the letter of it," Mr O'Connell told Judge Aylmer. "In terms of... compliance with procurement obligations, the process was bespoke... and so that it does not tick all the boxes from a procurement perspective."
In a ruling issued last March, 10 days before the case against Mr FitzPatrick collapsed, Judge Aylmer ruled Mr Grummit's evidence inadmissible. He ruled the admission of Mr Dearman's evidence was far more consistent with the public interest in the administration of criminal justice than excluding it in order to "penalise the technical breaches" of the prescribed EU procurement process.
"There were significant confidentiality issues and the ODCE, as procurer, had little or no experience in how properly to overcome these issues and remain fully compliant with EU procurement law," said the judge. In a statement, the Department of Jobs said it understood that experts were engaged by the ODCE following a competitive tendering process.
"The terms of reference were drawn up in consultation with the Office of the Director of Public Prosecutions and Counsel," said a spokesperson.