The banker, the investigator and the shredding of documents
Kevin O’Connell’s destruction of paperwork played role in Seán FitzPatrick’s acquittal
Kevin O’Connell got a bad feeling when he noticed the pile of documents in the blue plastic tray on the floor behind him, under the window in his office.
It was the afternoon of May 1st, 2015, the Friday before the bank holiday weekend, and he had been having a hard time. The day before he had finished a six-day stint in the witness box, where, in the absence of the jury, he had been quizzed about his role as lead investigator into the actions of Seán FitzPatrick, the former chair of Anglo Irish Bank. Things had not gone well.
O’Connell was a legal adviser with the Office of the Director of Corporate Enforcement (ODCE), the bureau set up in 2001 to target white-collar crime, and the inquiry into FitzPatrick was one of the biggest and most high-profile the agency had yet to deal with. Prior to this O’Connell had dealt mainly with summary offences at District Court level, but now he was in the big time, and the whole country was watching.
A jury was empanelled in April 2015 to hear the charges against the former banker, but rather than begin to hear evidence, they had been asked to go home so some legal matters could be thrashed out first in their absence. FitzPatrick was represented by Bernard Condon SC, and Condon was making a big issue about how the investigation O’Connell had headed had been conducted.
The case involved charges that FitzPatrick had made misrepresentations to the Anglo auditors, Ernst & Young, now EY, over the 2002-2007 period, in relation to directors’ loans. The amounts involved varied according to the year, but at one stage exceeded €100 million.
One of the issues Condon was not happy with was how witness statements were taken from the two senior EY figures who had overseen the Anglo audits during the period concerned.
These were Kieran Kelly and Vincent Bergin, both partners with the auditing firm. The process of taking witness statements had involved Liam Kennedy, a partner with A&L Goodbody, EY’s legal representatives, and the making of numerous drafts.
Emails and drafts, Condon said, had gone back and forth between the ODCE, A&L Goodbody, and EY, A&L were present at nearly all meetings with the two EY partners, the then ODCE chief, Paul Appleby was involved, and the members of the Garda seconded to the ODCE were “conspicuously absent”.
Gardaí are trained in taking witness statements. O’Connell, who was centrally involved, had never taken a witness statement before. The whole process, Condon said, was “lawyer-led”. It was “statement by committee”, with the statements being constructed as if for civil proceedings. But this was not the commercial court. It was a criminal prosecution and it should have been investigated in the normal way.
Unknown to Condon, when O’Connell was in the witness box answering questions about these matters, the ODCE solicitor had a particular worry on his mind.
What documents should and should not be disclosed to the defence by the Director of Public Prosecutions (DPP) was one of the matters Condon was complaining about in his critique of how his client was being treated. O’Connell was worried about the decision not to disclose a particular document to the defence. According to Condon’s later view, that document would have revealed that the DPP was being kept informed as to how O’Connell was going about his work. The decision not to disclose the document, an email, Condon was to say in court in 2016, caused O’Connell to fear that he was going to be “hung out to dry” by the DPP.
O’Connell feared that the DPP was “deliberately suppressing the email”, Condon said, and this caused O’Connell to “panic”.
Crisis of confidence
O’Connell had had something akin to a nervous breakdown back in 2012, when he successfully applied for a significant new post outside the ODCE, and then suffered a crisis of confidence when he was actually offered the job. Now he was panicking again as he prepared to enter the witness box in the absence of the jury to be quizzed about the quality of his work. “He was unwell and he was put into the witness box anyway,” Condon said in 2016.
His time in the witness box proved very difficult but O’Connell got through it. On Friday, May 1st, 2015, he called into the office to clear up a few things and touch base with his colleagues. Then, sitting at his desk, he looked behind him and saw the blue tray. Before the trial he had scoured the office to make sure all relevant documents were given to the DPP, but now he looked through the papers in the blue tray and found 16 more pages relevant to the trial that had not been disclosed. When he was on the phone he liked to jot down notes, and the pages contained jottings from when he was on the phone to A&L discussing the statements from the EY witnesses. They were precisely the type of documents he had been made go through with Condon over four days of cross-examination, in Condon’s attack on how the investigation had been managed. He was “devastated” to now discover he had not in fact disclosed all the documents he should have.
O’Connell sought out his new boss, Ian Drennan, (who had replaced Appleby in 2012), and told him what had happened. Drennan could see he was upset and told him to calm down. They contacted the DPP’s office and told Henry Matthews of that office what had happened, then scanned and emailed the documents to him. O’Connell now knew he was going to have to give fresh testimony to the trial in the absence of the jury, and suffer further cross-examination from Condon. It was approximately 4pm.
Back in his office he wrote up a note of what had happened, and spoke on the phone again with Matthews. Then, according to his evidence to the court in the absence of the jury in September 2016, O’Connell decided he should “look at what else” was in the blue tray. Most of it was jottings to do with conversations with the DPP, but to his “dismay” he discovered a few more pages, three or four, that were to do with the EY witnesses. “I was overwhelmed at this stage with panic.” He put the documents in a tray where he put material he thought should be shredded. He liked to do his own shredding. It was part of his “perfectionist streak”.
At this stage, when he had already decided he was going to destroy the documents, he was visited in his office by Garda Gary Callinan, one of the Garda officers on secondment to the ODCE. The two had an amicable conversation that lasted just over half an hour. All the time O’Connell was intending to destroy the documents he had just found and which he had placed in the shredding tray.
There were other documents in the pile, and as soon as Garda Callinan left, O’Connell picked up the tray and went off down the corridor to the room where the shredding machine was located. It was after 6pm by now, but Garda Callinan was still in the building. They met on the corridor and the detective went with O’Connell, chatting to his colleague, as O’Connell took the documents to the room and shredded them. (Destroying documents that are relevant to a criminal trial is a prosecutable offence.) O’Connell didn’t tell his Garda colleague what he was doing. CCTV in the ODCE offices caught the comings and goings of O’Connell. As he left the shredding room after destroying the documents, he walked quickly away, the empty tray in his hand, and his arm swinging. One of the most high-profile white-collar crimes of recent years, had now entered crisis territory.
O’Connell did not tell his colleague, Adrian Brennan, what he had done when he spoke to him later on the phone. Over the weekend he spoke with Drennan over the phone, but did not tell him what he had done. He was “overwhelmed by the sense it [what he had done] had engendered”, he told the court in 2016. He spent the weekend in his apartment. On the Monday he phoned Drennan and told him what had happened. On Tuesday the trial in the absence of the jury resumed, with the two EY auditors due to give evidence. O’Connell wasn’t there. Judge Mary Ellen Ring (who is now a High Court judge) was updated as to the weekend’s events and the destruction of documents relevant to the case by the chief investigator involved. Soon it was known that O’Connell was receiving psychiatric care. Evidence was taken from the two EY auditors but, in the end, the jury was discharged and the trial put back to 2016.
Taking of statements
As soon as the new jury was empanelled in September 2016, Condon was making a fresh argument in the absence of the new jury. The trial, he said, should be abandoned, not just because of the flaws in the taking of statements from the EY witnesses, but also because of the destruction of relevant documents. The main witness used, as he argued in the absence of the jury that the trial should be stopped, was the man who had led the inquiry, O’Connell.
In his decision on Tuesday to tell the jury to acquit Mr FitzPatrick on all charges, the shredding of documents was among the reasons cited by Judge John Aylmer.
He said a worrying feature of the evidence heard was that there must be a doubt as to why O’Connell singled out for destruction the documents he did, given that at the time he had just disclosed the existence of other documents he had not disclosed.
“The court retains a significant doubt which the court considers to be of substance that those shredded documents may in fact have contained material which might have been of assistance to the defence or damaging to the prosecution.”