Updated 2.16pm
THE COURT OF Appeal has quashed the convictions of two former Anglo Irish Bank executives jailed for furnishing false information to the Revenue Commissioners and conspiring to delete bank accounts.
Tiarnan O’Mahoney (56) of Glen Pines, Enniskerry, Co Wicklow and Bernard Daly (67), of Collins Avenue, Whitehall, Dublin had denied knowingly furnishing false information and conspiring to defraud the Revenue as well as conspiring to have accounts deleted from the bank’s internal system.
Having been found guilty by a jury at Dublin Circuit Criminal Court, Judge Patrick McCartan jailed O’Mahoney for three years and Daly for two years on 31 July 2015.
The Court of Appeal quashed the former executives’ convictions today on a number of grounds.
Julie Burke of JM Burke Tax solicitors issued a short statement on her client Bernard Daly’s behalf after the verdict. She said: “He is delighted with the success of the appeal against his conviction. He wishes to thank his wonderful family and friends who have given him steadfast support and encouragement since the onset of his ordeal in November 2013.
Mr Daly also wishes to thank his superb legal team led by Mr Sean Guerin SC. He stresses that since 2013 he has consistently maintained his innocence of the serious charges levied against him.
Giving judgment, Mr Justice George Birmingham said they “should not have had to stand trial” on the charge of furnishing false information because the proceedings were not commenced within the 10-year time limit.
The decision to reformulate the charges after they were formally charged was made because the prosecution discovered that there would be a complete defence to the charge that had been presented originally, the judge said.
Because of the reformulation, the proceedings for which Mr Daly and Mr O’Mahoney stood trial were not commenced within the 10-year limit, the judge said.
In addition, the charges originally proffered alleged that as officers of the company they consented to the commission of the offence but the offences on which they stood trial saw them charged as principals, the judge said.
Evidence should not have been admitted
They also successfully contended that a substantial number of documents were wrongly admitted in evidence.
Mr Justice Birmingham said the documents, which the trial judge ruled admissible, were “vital to the prosecution case”. These documents allowed the witnesses – a fraud investigator within Anglo, Patrick Peake – to trace for the jury and to explain and illustrate the means by which Anglo accounts were opened, kept, how ownership was designated, how funds were sourced, moved between different accounts and how the names of different accounts were changed or re-designated at various times.
In circumstances where crucial documentary evidence was admitted in breach of the hearsay rule, Mr Justice Birmingham said the could must uphold this ground of appeal.
Furthermore, the Court held that the conspiracy counts as alleged against Mr Daly ought to have been withdrawn from the jury.
Seán Guerin SC, for Daly, said the prosecution case against his client rested “almost entirely” on the bank’s former head of compliance – a Brian Gillespie.
During the trial, Mr Gillespie described a conversation in which Mr Daly asked if he could delete a name from the list to be provided to the authorities and Mr Gillespie said ‘no’.
Mr Justice Birmingham said that where there was cogent evidence that Mr Daly was ascertaining whether Mr Gillespie would be party to impropriety, there had to be strong suspicion that Mr Daly was involved in further impropriety and, it was contended, that the conspiracy couldn’t have succeeded without him.
However, this contention went further than was justified, Mr Justice George Birmingham said.
The evidence available to the prosecution was thin, tenuous and in those circumstances, the court feels that “notwithstanding the level of suspicion that existed”, it would have been appropriate to withdraw the conspiracy case against Mr Daly from the jury.
Mr Justice Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice John Edwards, said the conclusions reached by the court meant their convictions “must be quashed”.
The question of a re-trial did not arise for Mr Daly because, the court concluded, that there was insufficient evidence to go before the jury.
Mr O’Mahoney’s position was different. His “omnibus” ground of appeal concerning multiple complaints related to the trial in the summer of 2015 and did not affect the question of a retrial, the judge said.
The ground on which he succeeded did not preclude the ordering of a re-trial. The court will hear further submissions on this point at a later date. He was subsequently released on bail.
Giving background, Mr Justice Birmingham said the Revenue Commissioners conducted an audit of Anglo Irish Bank in 1999/2000 in relation to Deposit Interest Retention Tax.
In the course of a subsequent tax amnesty a number of Anglo clients came forward to disclose that they had non-resident accounts which renewed the Revenue’s interest in the institution.
In March 2003, the Revenue obtained High Court orders requiring Anglo to hand over details of non-resident deposit accounts in the bank. IN addition, the Revenue initiated a second DIRT audit of the bank which was formally opened in November 2003.
The so called substantive offence- the furnishing of false information – related to a list for 1995 which was physically handed by Bernard Daly to the Revenue on 17 November 2003.
The prosecution’s case was that it was incomplete in that it did not contain an account held in the name of John Peter O’Toole and that its exclusion was “prompted by the fact that the account was connected to a named senior figure in the bank”.
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