The Garda decided not to launch a criminal investigation even though a solicitor with the Office of the Director of Corporate Enforcement (ODCE) had admitted in sworn evidence that he had destroyed documents relevant to the criminal proceedings against Seán FitzPatrick.
On Tuesday the judge in the trial of the former chairman of Anglo Irish Bank said he would direct his acquittal.
During the trial, the head of the Garda National Economic Crime Bureau, Chief Superintendent Patrick Lordan, was asked by Bernard Condon SC, for Mr FitzPatrick, whether ODCE solicitor Kevin O'Connell had been granted immunity because he was the man who was "taking down" Mr FitzPatrick.
Mr Fitzpatrick, of Whitshed Road, Greystones, Co Wicklow, had pleaded not guilty to 27 offences under the 1990 Companies Act.
These included 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 chief superintendent, giving evidence to the trial of Mr FitzPatrick in the absence of the jury, said he had no power to grant immunity to anyone.
Mr O’Connell, a legal adviser with the ODCE, was the lead investigator into allegations that Mr FitzPatrick had misled the auditors of Anglo Irish Bank, Ernst & Young (EY), over a period of six years.
In May 2015, after he had finished giving evidence in the absence of the jury in the first, later aborted trial of Mr FitzPatrick in relation to the charges, Mr O’Connell destroyed documents he found in his office and which should have been disclosed to the defence. This year he gave sworn evidence to the court that he had done so.
Called to give evidence in the absence of the jury empanelled for the second trial, Chief Supt Lordan said he had discussed the destruction of the documents with a colleague, and deemed it was not necessary to launch a Garda investigation.
The whole issue had been outlined to Judge Mary Ellen Ring in the course of the 2015 trial, and she had not indicated that any issue had to be raised with the Garda, he said. "No one was knocking on my door," he said.
He also said he was conscious that the trial of Mr FitzPatrick was pending and that was something they did not want to interfere with.
Mr Condon said Mr O'Connell had given sworn evidence that he had destroyed the documents. It was "extraordinary" that a person could destroy documents in the course of a trial and not be investigated.
“If it had been Mr FitzPatrick you would have been outside his house at 6 am,” he said. If a garda had destroyed his notebook, he would have been sacked.
There was no investigation into Mr O’Connell because he was “too important to the State”, Mr Condon said. Chief Supt Lordan said he did not agree.
Mr O’Connell, represented in court this year by his own legal adviser, solicitor James Mac Guill, told the court he had been advised not to say anything that might incriminate himself.
This occurred after he had given evidence as to the destruction of the documents, but before his cross-examination.
Subsequently, the DPP, Claire Loftus, furnished a letter saying nothing the ODCE solicitor would say in relation to the FitzPatrick case would be used to prosecute him.
She said this was not the granting of a general immunity from prosecution. Mr O’Connell said on the basis of the letter, he was willing to answer further questions about the destruction of the documents.
The testimony occurred in the absence of the jury and was not reported at the time.