The Court of Appeal has reserved judgment on an appeal brought by two former Anglo Irish Bank officials jailed for furnishing false information to the Revenue Commissioners and conspiring to delete bank accounts.
Tiarnan O'Mahoney (aged 56) of Glen Pines, Enniskerry, Co Wicklow and Bernard Daly (aged 67), of Collins Avenue, Whitehall, Dublin had denied knowingly furnishing false information and conspiring to defraud the Revenue as well as conspiring to have accounts deleted from the bank's internal system.
Having been found guilty by a jury at Dublin Circuit Criminal Court, Judge Patrick McCartan jailed O'Mahoney for three years and Daly for two years on July 31, 2015.
Their co-accused Aoife Maguire (aged 62), of Rothe Abbey, South Circular Road, Kilmainham, Dublin was also found guilty of conspiring to delete accounts and conspiring to defraud the Revenue, having denied the charges.
She was jailed for 18 months but the Court of Appeal quashed her sentence last December on grounds that it was too severe. The court imposed a new nine-month sentence in its place and suspended the balance releasing her from prison.
Maguire had not appealed her conviction but her co-accused O'Mahoney, who had been second in command at the bank and Daly, the banks former company secretary, opened appeals against their convictions in the Court of Appeal on Monday.
After hearing oral submissions for five days, Mr Justice George Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice John Edwards, said the court would reserved judgment and give it as soon as possible.
Mr Justice Birmingham remarked that judgment may take some time given the multiplicity of issues and the vast number of grounds for appeal.
He thanked the parties for their assistance in the case: Brendan Grehan SC and Lorcan Staines BL for O'Mahoney; Seán Guerin SC and John Maher BL for Daly as well as Dominic McGinn SC and Kerida Naidoo SC for the Director of Public Prosecutions.
Summary of the submissions:
Mr Grehan submitted that there was a “series of erroneous, adverse rulings” by the trial judge, Judge Patrick McCartan, which resulted in a “flawed legal process”.
There were four pieces of evidence which “drastically” changed “what was in effect a circumstantial case in respect of the conspiracy charges into items of direct evidence,” Mr Grehan said.”
The four matters were the cross-examination of the bank's former Head of Compliance and chief prosecution witness Brian Gillespie, an email sent by Maguire and copied to O'Mahoney, the evidence of James Shaw, and the unedited interviews of Mr Daly.
These “individually or cumulatively resulted in rendering it an unfair trial,” Mr Grehan said.
Despite directions by the trial judge to disregard the evidence in relation to O'Mahoney, Mr Grehan said it would have required “superhuman efforts” by the jury.
He said evidence for a conspiracy to defraud the Revenue simply didn't go beyond a coincidence in time - a revenue audit was taking place - but other things were happening in the bank in that time period.
Counsel for Daly, Seán Guerin SC, told the court that his client's trial was unfair “from beginning to end”.
Mr Guerin said the prosecution had been allowed to misrepresent the evidence and misstate facts because the trial judge held that it was a matter for the jury.
That was “deeply disturbing”, Mr Guerin said and bore “no relation to a fair trial”.
He said the prosecution “deliberatly confused” the jury and sought to profit from the confusion.
He said the trial judge failed to marshall the evidence, failed to present the defence case to the jury and presented disputed evidence as fact.
He said Daly's conviction was imposed on a man with an umblemished record who remained in prison six months later “only because he suffered an unfair trial”.
Mr Guerin asked the court to give effect to the requirement of a fair trial by ruling that “what happened was a travesty”.
Daly simply “didn't get a fair crack of the whip”, Mr Guerin said, and he asked the court to “step in” and restore the “position of good character and record” his client had had before July 31.
Mr Grehan had said the prosecution's closing speech was “absolutely outrageous” which breached every conceivable rule prosecutors were obliged to follow.
He said the prosecution simply didn't care about their obligations to present a case fairly.
Adopting those comments, Mr Guerin said the prosecution made arguments with little or no reference to the evidence and the judge failed to present the defence's case to the jury. It was so far removed from a fair trial it was “almost unimaginable”, Mr Guerin said.
Counsel for the DPP, Dominic McGinn SC, told the court on Thursday that there may have been a “finessing” or “an emphasis put on” certain evidence in the prosecution's closing speech but it was their case that was put to the jury.
In response to claims that the prosecution misstated facts and misrepresented the evidence in their opening speech, Mr McGinn said the jury heard all the evidence throughout a lengthy trial and there was no irredeemable prejudice suffered by Daly as a result of the opening speech.
In response to remarks by Mr Justice John Edwards that the prosection seemed unprepared to correct certain matters raised by the defence, Mr McGinn said a large body of the evidence was common to all three accused and what was said in the opening in no way prejudiced Daly.
Mr McGinn said it was instructive that Maguire had not complained about receiving an unfair trial.
She had not appealed her conviction and, as such, accepted that she had gotten a fair trial, counsel stated.
Mr McGinn said there was no need for an accomplice warning in respect of evidence given by the bank's former Head of Compliance Brian Gillespie.
Counsel conceded that without him, there wouldn't have been a case against Daly, but Mr Gillespie wasn't coming into court roundly pointing the finger at others. If anything, Mr Gillespie's evidence against Daly was “not concrete”, counsel stated.
In response to why dates for the conspiracy charges were expanded on the indictment on the morning of the trial, Mr McGinn said the furnishing of false information was committed on November 17 2003 but before and after that date there was a conspiracy afoot to interfere in banking records.
Mr McGinn said it was always the prosecution's case that the wider conspiracy encompassed the period March 2003 to December 2004. What shifted was the way in which it was presented but the underlying allegations always remained the same.
When asked by the court to state what the prosecution's case against Daly was, Mr McGinn said evidence of Daly's involvement derived from his conversation with Mr Gillespie and also from inferences that could be drawn from his attitude in interviews.
Due to Daly's position in charge of the task team, Mr McGinn said the prosecution contended that he would have been aware of the conspiracy and if he wasn't part of it, he would have asked questions.