GARDAÍ HAVE NEVER investigated a State official’s destruction of documents related to the investigation of alleged crimes by former Anglo Irish Bank chairman Seán FitzPatrick.

FitzPatrick (68) is on trial at Dublin Circuit Criminal Court accused of misleading auditors about multimillion euro loans from 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, 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.

This morning, Condon began a sixth day of cross-examining O’Connell. The witness agreed it is 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.

Pleading the fifth

O’Connell said when he told 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. Condon said there has been no garda investigation and hence there has been no prosecution.

He said at the start of the current trial last October the Director of Public Prosecutions (DPP) offered O’Connell what counsel described as “effective immunity” from prosecution. This offer came while O’Connell was giving evidence during legal argument and he indicated to the court he may wish to rely on the privilege against self-incrimination.

Condon told the jury this was a legal right available here and known in the US “as pleading the fifth”, where a person does not have to answer a question that may incriminate them.

On 12 October last, the Chief Prosecution Solicitor for the DPP wrote to solicitors for O’Connell stating that no evidence given by him concerning the destruction of documents will be used in evidence in any criminal proceedings against him.

The court heard lawyers for the DPP have firmly rejected that the letter amounted to an immunity against prosecution. Condon submitted that it was a qualified but “effective” immunity.

FitzPatrick of Whitshed Road, 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. The trial continues.

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