Lead in­ves­ti­ga­tor ad­mits shred­ding doc­u­ments in er­ror

Bray People - - NEWS -

THURS­DAY

The lead in­ves­ti­ga­tor into al­leged crimes by Sean Fitz-Pa­trick, the for­mer chair­man of An­glo Ir­ish Bank, failed to con­duct a fair in­ves­ti­ga­tion, Dublin Cir­cuit Crim­i­nal 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 Fitz-Pa­trick (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.

Mr FitzPatrick of Whit­shed Road, Grey­stones, has pleaded not guilty 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.

On day 69 of the trial, Bernard Con­don SC, de­fend­ing, told Mr O’Con­nell that he would be ar­gu­ing that the in­ves­ti­ga­tion was 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 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 num­ber 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 Con­don put it to the wit­ness that he was fo­cused on one thing, which was to get a charge, and that he had failed to main­tain the in­de­pen­dence re­quired in a proper in­ves­ti­ga­tion.

Mr O’Con­nell said that while the ul­ti­mate end point of an in­ves­ti­ga­tion would be a charge, it wasn’t a case of get­ting to that point ‘at all costs’.

The jury were shown an email dated Fe­bru­ary 2010 in which Paul Ap­pleby, then Di­rec­tor of Cor­po­rate En­force­ment, thanked a col­league for her work and said: ‘Let’s hope we get pros­e­cutable of­fences out of all of your work.’

Mr Con­don said that Mr O’Con­nell had seen this email at the time and hadn’t quib­bled with it. He said the state­ment by Mr Ap­pleby showed there was a de­sire to get a pros­e­cu­tion and there was fail­ure to con­duct an in­de­pen­dent in­ves­ti­ga­tion.

The wit­ness said that he couldn’t speak for Mr Ap­pleby’s lan­guage but that there was a le­git­i­mate de­gree of op­ti­mism at the end of a process.

‘ That is not the same as hav­ing a com­pletely de­plorable at­ti­tude to tram­pling over the rights of peo­ple,’ Mr O’Con­nell said.

Mr Con­don said that as in­ves­ti­ga­tors the ODCE had a duty to in­ves­ti­gate any­thing which may be con­sis­tent with in­no­cence as well as guilt.

‘From the be­gin­ning, the ODCE had taken the po­si­tion that EY were go­ing to be on the side of the an­gels, and Sean FitzPatrick was go­ing to be in the al­ter­na­tive cor­ner,’ Mr Con­don said. The wit­ness said this wasn’t ac­cu­rate.

Mr Con­don put it to Mr O’Con­nell that in­ves­ti­ga­tors de­cided not to in­ves­ti­gate the ad­e­quacy of the per­for­mance of the au­di­tors, EY, for fear EY would ‘cut and run’ and with­draw their co-oper­a­tion.

The jury heard that at one point Mr O’Con­nell emailed a col­league warn­ing that ‘if we start ask­ing too many ques­tions about au­dit ad­e­quacy I think it might lead to a sit­u­a­tion where EY might be­come less will­ing to co-op­er­ate with us.’

Mr Con­don asked: ‘ Your con­cern was if you started to ask too many hard ques­tions about EY, you would not get their co-oper­a­tion. You de­cided it was prefer­able to get their co-oper­a­tion than to prop­erly in­ves­ti­gate them.’

The wit­ness dis­agreed with this but ac­cepted the ODCE were try­ing to get as­sis­tance from EY.

‘We had no ba­sis on which we could de­mand co-oper­a­tion. There was not some sort of a cru­sade. We gen­uinely be­lieved that we did not have a role in in­ves­ti­gat­ing the ad­e­quacy of the au­dit,’ he added.

He de­nied that he had not been can­did and up­front with EY when he wrote to them in Fe­bru­ary 2009 ask­ing them to co-op­er­ate with a re­quest for doc­u­ments.

In one let­ter to EY’s lawyers, A&L Good­body, he wrote: ‘On pub­lic in­ter­est grounds alone your client should se­ri­ously con­sider as­sist­ing vol­un­tar­ily with the on­go­ing ex­am­i­na­tion.’

Mr O’Con­nell said that in hind­sight the rhetoric in such a state­ment was re­gret­table. He agreed that at the time ‘ the air was thick with risk for EY’ and that the firm was very con­cerned about their pub­lic im­age.

FRI­DAY

The lead in­ves­ti­ga­tor into al­le­ga­tions of fi­nan­cial crimes by for­mer An­glo Ir­ish Bank chair­man Sean FitzPatrick has ac­cepted that as­pects of his in­ves­ti­ga­tion were ‘colos­sally prej­u­diced’.

Coun­sel for Mr FitzPatrick (68) de­scribed as ‘an out­rage’ a de­ci­sion by Kevin O’Con­nell, an in­ves­ti­ga­tor with the Of­fice of the Di­rec­tor of Cor­po­rate En­force­ment (ODCE), not to ask wit­nesses cer­tain ques­tions be­cause they might ‘un­der­mine’ his case.

On day 70 of the trial at Dublin Cir­cuit Crim­i­nal Court, Bernard Con­don SC, de­fend­ing, con­tin­ued his cross-ex­am­i­na­tion of Mr O’Con­nell, a le­gal ad­vi­sor with the ODCE who dealt with wit­nesses from EY (the Ernst & Young), An­glo’s au­di­tors from 2002 to 2008.

He put it to Mr O’Con­nell that in April 2010 he had gone into his first meet­ing with key wit­nesses from EY with an ac­cep­tance that they had not known about the move­ment of loans to Ir­ish Na­tion­wide.

Mr O’Con­nell replied: ‘I see it sug­gests a de­gree of pre­judge­ment,’ but added that there was noth­ing in the ev­i­dence he had so far re­ceived that the loans had been dis­closed to the au­di­tors.

Mr Con­don said that if the loans had been made known to EY ‘we wouldn’t be here’ in court.

‘ That is an ab­so­lutely colos­sal piece of prej­u­dice. That was wrong to do,’ he said. Mr O’Con­nell said he agreed adding: ‘It was a very in­ex­pe­ri­enced way of ap­proach­ing the mat­ter.’

Coun­sel de­scribed as ‘an out­rage’ the fail­ure of in­ves­ti­ga­tors to ask wit­nesses about au­dit­ing stan­dards which sug­gested au­di­tors re­mind di­rec­tors that it was a crim­i­nal of­fence to mis­lead au­di­tors.

‘You were charged with car­ry­ing out a fair and im­par­tial in­ves­ti­ga­tion,’ coun­sel said, ac­cus­ing Mr O’Con­nell of de­lib­er­ately de­cid­ing not to ask about these stan­dards.

Mr O’Con­nell agreed it was ‘a very se­ri­ous mis­take’ adding: ‘I very much re­gret that this was not some­thing that was ad­dressed within the full en­gage­ment with EY. I don’t in any way seek to stand over that de­ci­sion.

‘We were seek­ing to build the case. We did not at this early stage want to start set­ting out the weak­nesses in the case.’

Mr Con­don sug­gested ask­ing cer­tain ques­tions ‘would hurt your case’.

‘If they were to say some­thing about this, it would un­der­mine your abil­ity to bring a pros­e­cu­tion at all. I think that is so,’ coun­sel said.

Mr O’Con­nell told the jury that his team did not have the re­sources it needed to prop­erly in­ves­ti­gate the case.

The court heard that in early 2009 civil ser­vants from gov­ern­ment de­part­ments were as­signed to the ODCE and that around 16 of these, in­clud­ing le­gal staff and gardai, were in­volved in the An­glo in­ves­ti­ga­tion.

Mr O’Con­nell said that with all due re­spect to these per­son­nel in hind­sight he felt they did not have the nec­es­sary skills needed for a crim­i­nal in­ves­ti­ga­tion.

‘What were needed were skilled in­ves­ti­ga­tors. Their skills were not in area of crim­i­nal in­ves­ti­ga­tion. That was what was needed at time, not more peo­ple who lacked that back­ground.

‘At the time we did not ap­pre­ci­ate the risks be­ing cre­ated by peo­ple like me un­der­tak­ing work that would have been bet­ter done at gar­daí,’ he said. He said that he had ‘over­sub­scribed’ to the idea of ‘do­ing more with less’ and had taken on more than he was qual­i­fied for.

The jury heard that in March 2011 Mr O’Con­nell at­tended a meet­ing with the se­nior gov­ern­ment of­fi­cials, the then garda com­mis­sioner Martin Cal­li­nan, and his deputy, Derek Byrne.

Coun­sel put it to Mr O’Con­nell that at the time the ODCE were of­fered by very se­nior of­fi­cials ‘any re­sources, any­thing they wanted’. A note from the meet­ing states that ‘ both gardai and the ODCE stressed they had ad­e­quate re­sources’.

Mr O’Con­nell said the then Di­rec­tor of Cor­po­rate En­force­ment, Paul Ap­pleby, had a view re­gard­ing re­sources and that it was not his po­si­tion to go ‘out on a limb’ and ‘in­de­pen­dently or separately lay claim to re­sources’.

The wit­ness agreed that he was in­volved in tak­ing wit­ness state­ments de­spite be­ing ‘un­trained’ in that area.

The jury heard that dur­ing the trial in April 2015 the judge found this process to be ‘sub-op­ti­mal’ and since that it has changed so that state­ments in ODCE in­ves­ti­ga­tions are now only taken by gar­daí.

Mr O’Con­nell de­nied that he en­cour­aged the au­di­tor wit­nesses, Vin­cent Ber­gin and Kieran Kelly, to in­volve their lawyers in the process of mak­ing their state­ments. He said that he didn’t think they would have agreed to make a state­ment with­out be­ing ‘ lawyered up’ but ac­cepted that he never asked them to do so.

Mr Con­don ac­cused Mr O’Con­nell of wit­ness coach­ing dur­ing a meet­ing with Mr Ber­gin and in house lawyers from EY.

‘We can never know what they would have said with­out your in­ter­ven­tion,’ coun­sel said. Mr O’Con­nell

agreed but said he didn’t think this meant the wit­ness ev­i­dence was com­pletely dam­aged.

He agreed that it was in­ap­pro­pri­ate of him to have said, dur­ing this meet­ing in April 2010 that ‘we hope there is an ad­e­quate ba­sis to pros­e­cute Sean FitzPatrick’.

He de­nied that the mind­set of the ODCE was to ‘ try and do Mr FitzPatrick’.

The jury heard that Mr Ber­gin’s fi­nal state­ment pro­vided to the in­ves­ti­ga­tion team came about af­ter a six month process in­volv­ing 20 drafts go­ing back and forth in­ter­nally within EY and their lawyers.

MON­DAY

A lead in­ves­ti­ga­tor into al­le­ga­tions of crimes by for­mer An­glo Ir­ish Bank chair­man Sean FitzPatrick has ad­mit­ted shred­ding doc­u­ments that he should not have shred­ded.

On day 71 of the trial in Dublin Cir­cuit Crim­i­nal Court, Bernard Con­don SC, de­fend­ing, con­tin­ued his cross-ex­am­i­na­tion of Kevin O’Con­nell, a le­gal ad­vi­sor with the ODCE who dealt with wit­nesses from EY, An­glo’s au­di­tors from 2002 to 2008.

Mr O’Con­nell was an­swer­ing ques­tions about the ODCE’s process of draft­ing wit­ness state­ments in con­sul­ta­tion with wit­nesses and their lawyers. He agreed that dur­ing the first trial of Mr FitzPatrick in April 2015 ‘a bright light was shone’ on this process and it was re­vealed to be ‘sub-op­ti­mal’.

The wit­ness said since then the ODCE changed their prac­tice so that wit­nesses in crim­i­nal in­ves­ti­ga­tions are now only in­ter­viewed by gar­daí.

He said that this process of the ODCE en­gag­ing with wit­nesses and lawyers was al­le­vi­ated by the ex­ten­sive record­ing, de­scrib­ing ‘an un­usu­ally de­tailed chron­i­cle as to what was go­ing on’.

Mr Con­don put it to the wit­ness that this only went as far as where doc­u­ments still ex­isted and not where doc­u­ments may have been shred­ded.

Mr O’Con­nell then told the jury that he had in fact shred­ded what he said were ‘a tiny pro­por­tion of doc­u­ments’ at a lat­ter stage.

‘At a lat­ter stage I made a calami­tous er­ror. I shred­ded a small num­ber of doc­u­ments which I ought not to have shred­ded,’ he said. He agreed that they were shred­ded just af­ter he had been cross-ex­am­ined by Mr Con­don in April 2015.

‘It was a time of enor­mous pres­sure. I made a dread­ful mis­take which there­after I ac­knowl­edged and ad­mit­ted,’ the wit­ness said. He said they re­lated to notes from con­ver­sa­tions he had with A&L Good­body, the lawyers for EY.

The trial con­tin­ues be­fore Judge John Aylmer and a jury.

Seán FitzPatrick.

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