Gardaí have never investigated a State official’s destruction of documents related to the investigation of alleged crimes by former Anglo Irish Bank chairman Sean FitzPatrick, a trial has heard.
Mr FitzPatrick, aged 68, is on trial at Dublin Circuit Criminal Court accused of misleading auditors about multi-million euro loans in the years 2002 to 2007.
The jury has already heard that, in May 2015 Kevin O’Connell, a lead investigator from the Office of Director of Corporate Enforcement (ODCE), shredded documents which were relevant to the investigation.
He told Bernard Condon SC, defending, that he panicked when he discovered the five pages in his office and made a wrong decision to destroy them. He admitted it was unethical and said he was ashamed of his actions.
He said he disclosed his actions to his boss, director of corporate enforcement Ian Drennan, three days later.
Yesterday, Mr Condon began a sixth day of cross-examining Mr O’Connell. The witness agreed it was a criminal offence to destroy documents relevant to an investigation.
He also agreed that there had been no Garda investigation into his shredding of the documents.
He said that when he told Mr Drennan about his actions, he did so knowing it could have led to very serious outcomes, such as criminal investigations or disciplinary proceedings. He agreed with counsel that none of these things happened.
He said that, at the start of the current trial last October, the Director of Public Prosecutions (DPP) offered Mr O’Connell what counsel described as “effective immunity” from prosecution.
This offer came while Mr O’Connell was giving evidence during legal argument and he indicated to the court that he may wish to rely on the privilege against self incrimination.
Mr Condon told the jury this was a legal right available here and is known in the US “as pleading the fifth”, where a person does not have to answer a question that may incriminate them.
On October 12, 2016, the chief prosecution solicitor for the DPP wrote to solicitors for Mr O’Connell stating that no evidence given by him concerning the destruction of documents would be used in evidence in criminal proceedings against him.
The court heard that lawyers for the DPP have firmly rejected that the letter amounted to an immunity against prosecution.
Mr Condon submitted that it was a qualified but “effective” immunity.
Mr FitzPatrick, of Whitshed Rd, Greystones, Co Wicklow 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.
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