Anglo jury considers verdict, judge says put views on bank aside

The jury in the trial of three former officials of Anglo Irish Bank has retired to consider its verdict.

Earlier, during his charge to the jury, trial judge Patrick McCartan told them to leave any “hard views” about Anglo Irish Bank behind them.

He said Anglo Irish Bank was not on trial.

Aoife Maguire (63) of Rothe Abbey, South Circular Road, Kilmainham, Dublin, Bernard Daly (67) of Collins Avenue West, Whitehall, Dublin and Tiarnan O'Mahoney (56) of Glen Pines, Enniskerry, Co Wicklow, have been charged with trying to hide accounts, connected to the former chairman of the bank, Sean FitzPatrick, from Revenue between March 2003 and December 2004.

They have pleaded not guilty.

Judge McCartan told the jury when it comes to the facts, they are the authority. The judge said he might express his views, but they are not bound by that. He told them it was best that they were making the decision in the case and not him, as they had come with open minds.

“I’ve become case worn, cranky and I think I know it all,” he said.

The judge explained the Director of Public Prosecutions carried the responsibility for proving the facts "from beginning to end".

He said the accused came to court innocent and remained so unless jury made findings against them. The standard of proof was beyond all reasonable doubt, but didn’t require mathematical certainty or moral certainty.

He told the jury it was open to them to accept everything witnesses had said, or nothing. And they could not draw adverse conclusions from the fact that the three accused had not given evidence, because that was their right.

He said they could have regard to the garda interviews.

He said the first charge was that Mr Daly and Mr O’Mahoney had knowingly and wilfully made returns to Revenue that were incorrect.

The crucial phrase was “knowingly and wilfully”, he said, and the jury had to be satisfied of that. The mere handing over of the list to revenue by Mr Daly was not enough. He must known the information was incorrect, and it was the same for Mr O’Mahoney.

The other charges related to conspiracy to delete records from the bank’s system and conspiracy to defraud Revenue in relation to those charges.

He said each of the accused must enjoy and is entitled to a separate trial and each charge must be considered separately. He said it was an offence for an officer of a company to destroy, mutilate or falsify any book of a company.

He said Ms Maguire was not an officer of the company, but it was possible for a person to agree to commit an offence they cannot themselves commit.

The law allowed that. It also did not require the substantive act to be committed, the judge said. The offence was to have an agreement to do it.

He told the jury crime was “a furtive thing and was by and large done underhandedly so people don’t get caught”.

The jury should ask if there was enough evidence to show an agreement and it could be inferred from the facts, he said.

Conspiracy was a broad offence, he said, and described as “elastic and in disparaging terms”, but it was a valid offence.

He told the jury that whatever was said in garda interviews could only relate to the accused being interviewed. They could also not have regard to evidence that was hearsay.

The judge said by reason of history, the alleged offences didn’t get investigated until 11 or 12 years after they occurred. The delay had an impact on the quality of the evidence.

People’s memories became vague, he said. This was not the fault of the accused as they did not delay the process and the prosecution could not benefit from that.

“The law says the accused’s position ought not to be worsened by lack of memory or lack of detail,” he said.

On the question of circumstantial evidence, the judge said this was like the threads of a rope. One of them on their own would “give you no support or no security”, but when you began to weave them together into a fabric, they developed strength.

Each of them in itself was insufficient to prove the facts. The judge told the jury to look at all the threads of the evidence. It was a case for them to decide whether it created such certainty in their minds as to point to the guilt of the accused.

Judge McCartan also said the jury may have regard to whether or not any of the witnesses they had heard could be considered as accomplices in the alleged wrongdoing of the accused.

He said the witnesses James Shaw and James McGill had “set in place” the deletion program required of them. They knew that as banking personnel it was wrong to delete records, but they went ahead nonetheless.

Although they had not ultimately deployed a deletion program in relation to the accounts related to Mr FitzPatrick, they had diverted the records to an archive.

The defence had argued that another witness, Brian Gillespie, could be considered an accomplice in the alleged offences of Mr Daly and Mr O’Mahoney in the non inclusion of certain accounts in the list provided to Revenue.

“It’s a matter of fact for you to resolve having regard to the facts raised,” the judge said.

If they decided witnesses were complicit, they treat their evidence with caution.

“If you consider Mr Shaw, Mr McGill or Mr Gillespie in any way complicit in the offences as alleged, you must exercise caution when it comes to them seeking to put the blame on any of the accused,” the judge said.

Looking at the statements given by the defendants themselves, the judge said it was a matter for the jury also to decide whether they had been untruthful.

Telling untruths was not the same as admitting to guilt, the judge said. There were many reasons why a person may not want to tell the truth in certain circumstances, including through shame, panic, misjudgement or confusion.

The judge said that in general the State’s case rested on the shoulders of former Anglo fraud prevention officer Patrick Peake. He thought Mr Peake’s testament had established that in respect of the seven accounts mentioned in the indictment that they were in some way connected to the former chief executive of Anglo, Sean FitzPatrick.

Apart from one account, the case was that the details of each of the accounts was altered in a way that was incorrect and not in line with banking practice, using the “much used anonymous login” of MC9.

These six accounts were ultimately taken out of the core banking system and archived in the way described by Mr Shaw and Mr McGill.

The judge said it was also fair to say the banking practices adopted by Mr FitzPatrick were “somewhat unusual in ways”.

He suggested that it was an area of evidence the jury did not have to dwell on.

The judge said he would suggest to the jury that the more the defendants could amplify the role of Mr FitzPatrick and his misbehaviour, the better from their point of view and that what was going wrong in Anglo was “very much to be found at Mr FitzPatrick’s feet and not, by definition at the feet of any of the accused at all”.

It was important to focus on the evidence that sought to implicate each of the accused in each of the charges on the indictment, the judge said.