• Court Reports

ANGLO IRISH TRIAL: Judge tells jurors to leave prejudices 'at the courtroom door'

Friday, 11th April, 2014 5:10pm
ANGLO IRISH TRIAL: Judge tells jurors to leave prejudices 'at the courtroom door'

Judge Martin Nolan has told the jurors that they must leave any prejudices for or against the bankers “at the courtroom door”.

Delivering his charge to the jury, Judge Nolan called on their “moral courage” and said they must do what they think is right.

“These three men here now are innocent, completely and utterly innocent. They only become guilty of any offence if you decide they are guilty. Simple as that.”

“You are not entitled to visit upon them what has occurred since the Lehman Bros crash of October 2008,” he said. “That would be incredibly unfair and wrong.”

Judge Nolan warned the jurors that they must decide this case on the evidence they have heard before the court and nothing else.

“You are under sworn duty to try this case fairly and impartially,” he said.

He asked them to “leave emotion out” and address the evidence in a “dispassionate and analytical fashion”. “You are the judges of fact,” he said.

Judge Nolan reminded them that they must accept his summary of the law that he gives them, “even if you don't like it.”

“The law is there, it's passed by the Oireachtas and binds us all. There's no getting away from it,” he said.

The judge explained that the State must prove its case against the three accused “beyond reasonable doubt”.

In other words, he said the jury must be “as humanly certain as possible” of their guilt, before they can convict them.

Judge Nolan said it was a heavy burden of proof, but it had to be, because a criminal conviction for any person has “huge consequences”.

“That's the reason this safeguard has been in the law for some 800 years or more,” he said.

He also cautioned the jurors that they cannot have any second thoughts on whatever verdict they reach.

“Once you deliver your verdict, it's final. You must put your best endeavour in to get it right,” he said.

The judge remarked ruefully that the jury would find much of what he had to say “pretty boring and mundane”.

“Barristers submit in poetry, but judges must submit in prose,” without recourse to rhetoric, he said.

Earlier today (Friday), counsel for Sean FitzPatrick, Michael O'Higgins SC, continued his closing speech by maintaining that there is no case against his client.

Mr O'Higgins told the jurors that if they decide the loan was in the ordinary course of business, they must acquit Mr Fitzpatrick.

If they decide it wasn't, they must decide on what basis it wasn’t, for example the alleged “trickiness” of the paperwork or the 25 per cent recourse on the loan.

Mr O'Higgins said the prosecution has conceded that the paperwork was beyond his client's control. He also claimed there is no evidence suggesting Mr Fitzpatrick was aware of the 25 per cent recourse.

He said on the contrary, phone evidence shows Mr Fitzpatrick was “less than impressed” or even annoyed when he learned of the recourse.

Mr O'Higgins said the banking situation in 2008 was “like 1916 in reverse”.

“When the lads were taken out of the GPO at first they were spat upon and jeered,” he said, and then only when they were executed did they become heroes.

He said in the case of the Anglo deal, “Everybody was gloriously happy then the climate changed.”

He said in the light of subsequent events and in the aftermath of viciousness and anger, this was looked at in a different light and “the ground started to shift”.

“History has been rewritten,” said Mr O’Higgins.

Counsel said the prosecution is alleging that there was a “cheat” in the transaction, that it wasn't a proper loan, and that it was an attempt to mislead the market.

He then drew on evidence given by expert banking witness Tom Reid, who said he had “no difficulty” with the concept of loaning for shares to protect the assets of the bank.

“Mr Reid's justification is that it was protecting the assets of the bank,” said Mr O'Higgins, who claimed that this was the core purpose of legislation in the Companies Act.

“If you're driving along and a truck is heading towards you and you veer to the left, no one would say you are committing dangerous driving,” he said.

He also used the analogy of a man who is compelled to use water to put out a fire in his house during a time of drought.

Warming to his theme, Mr O'Higgins described a doctor amputating a patient's arm to get rid of gangrene.

“Do you say, he took the arm off? Or do you say, he saved the patient's life, and in the course of doing so, he cut off the arm to prevent gangrene?”

Mr O'Higgins claimed that getting clients to buy shares by providing the loans on commercial terms was “a necessary consequence of exercising a legitimate duty and obligation” to protect the assets of the bank.

He told the jury that it “isn’t a great time to be on trial as a banker.”

He said the “general fear and loathing” towards banks right now inevitably gives rise to the question “will I get a fair trial?.”

Counsel said the answer is “of course you will.” He said the jury system is the envy of the free world and that the reputation of Irish juries is impeccable.

He reminded the 14 jurors that they must try the accused on the evidence before them and nothing more.

He said that there are “legacy issues” from the banking collapse and some of these are currently before the criminal courts. But he warned that this trial is not one of them.

Mr O’Higgins said the Sean Quinn issue was a different issue to the banking crisis. He described it as “spring shower before the storm that was waiting around the corner which would sweep (Anglo) and every bank off their feet.”

Mr O’Higgins said there are many things that could be said about the Financial Regulator’s role in the case, hardly any of them positive.

But he asked why the prosecution was “casually criminalising” the regulator by suggesting it could also be charged with an offence.

Counsel said the prosecution said this because it puts the three Anglo accused in a bad light.

Also earlier today, Counsel for William McAteer, Patrick Gageby SC,  concluded his closing speech to the jury.

He said the prosecution claimed the deal involved “a fraud on the market,” but they then failed to follow through on this claim.

“Nowhere will you find, in the 16 charges, any such assertion against my client,” he said. “There is not a secret 17th  count saying this is a fraud on the market.”

Counsel pointed out that the Financial Regulator was shown the press release describing the Quinn unwind and raised no objection.

He said the Regulator was “the face of the market” but yet made no complaint.

He also asked why Mr McAteer was not allowed rely on Anglo’s compliance department to advise him if the deal was legal, when that was their very purpose.

“You don’t buy a dog and bark yourself,” he said.

“McAteer was not in breach of his duty. He was not in the middle of, or the author of, a great crime, or 16 great crimes.”

On Wednesday, the jury in the trial were ordered to find two of the bust bank’s former chiefs, Sean FitzPatrick and Pat Whelan, not guilty on some charges relating to loans to the Quinn family.

Judge Martin Nolan told the jury: “For good reason I have directed not guilty verdicts. It will all be made apparent to you in due course.”

Sean FitzPatrick still faces ten charges of illegally loaning money to the Maple Ten group of investors to buy shares in the bank.

This was part of a plan to unwind Seán Quinn’s 29.4% control of Anglo, which officials believed was driving down the share price.

Mr Whelan and former Anglo Director of Finance William McAteer also still face these charges, as well as six charges relating to the loaning of money to the Quinn family.

The trial, which centres on allegedly fraudulent loans to the Quinn family, and others, so they could buy shares in the bank in order to boost the share price - is in its tenth week and all three have denied the charges.

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