‘Four questions’ for the jury to answer

Yesterday, as the trial entered its 10th week, Judge Martin Nolan told the jur ors he had decided to direct them to return not guilty verdicts on six counts against Se án FitzPatrick and seven counts against Pat Whelan.

In Mr Whelan’s case, the seven charges related to the allegation that he was privy to the fraudulent alteration of loan facility letters to seven individuals. The six relevant charges against Mr FitzPatrick related to loans to members of Seán Quinn’s family. Judge Nolan said he would direct not guilty verdicts on all 13 of these charges.

In the afternoon, the prosecution began its closing speech to the jury. Senior counsel Paul O’Higgins set out four questions the prosecution says the jury must answer.

First, was there lending? He said this had been established “over and over and over again” and there was “ample evidence” lending “on a massive scale” took place.

Second, was that lending in the ordinary course of business? This was one of the key questions in the case, Mr O’Higgins said, and it was the State’s case that it was “crystal clear” that the loans were extraordinary.

Third, if there was lending, did the individual accused either authorise or permit it? The fourth question the jury must answer, in the prosecution’s view, was whether the accused took all reasonable steps to prevent what occurred.

None of the accused took any step of any kind to prevent what happened, Mr O’Higgins said.

He then set out a number of things the trial was not about. First, whether or not the financial regulator approved of, encouraged, permitted or was comfortable with the scheme was “wholly irrelevant” to the case.

Second, the trial was not about whether other people should have been prosecuted. In general many circumstances led to people being or not being prosecuted, he said. Some may not be company officers.

If the State prosecuted everyone who could be prosecuted in cases, that would be a “sure recipe” to ensure everyone got off.

Also irrelevant to the jury's considerations, Mr O'Higgins said, were legal advice and the issue of whether the investment bank Morgan Stanley w as involved in the deal. Mr O'Higgins also told the jurors they should not consider "whether or not the bank would have collapsed" as a result of "the doing or not doing what was done here".

Mr O’Higgins said it was the obligation of the prosecution to call all relevant witnesses in the case but this did not make them prosecution witnesses. The Maple 10 witnesses perhaps had dispositions that weren’t “completely neutral”, he suggested, and the Quinns didn’t come to court “without an agenda”. “None of these are singing from a prosecution hymn sheet and in some cases they are not singing from the same hymn sheet as one another .”

Mr O'Higgins said the fact that the financial regulator witnesses came from a State agency did not make them the DPP's "special witnesses". The same could be said for witnesses from Morgan Stanley and the Department of Finance, which was "not without interest or involvement".

In their words