DPP v O'Mahoney

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 15 March 2016
• Neutral Citation: [2016] IECA 111
• Date: 15 March 2016
• Court: Court of Appeal (Ireland)
• Docket Number: 226/15 230/15

[2016] IECA 111

THE COURT OF APPEAL

Birmingham J.

226/15

230/15

Birmingham J.

Sheehan J.

Edwards J.

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Tiarnan O'Mahoney

and

Bernard Daly

Appellants

Conviction ? Conspiracy to defraud ? Criminal evidence ? Appellants seeking to appeal against convictions ? Whether documents were wrongly admitted in evidence

Facts: The appellants, Mr O?Mahoney and Mr Daly, who were former senior officials in Anglo Irish Bank along with another co?accused Ms Maguire, stood trial in June and July 2015 in the Dublin Circuit Court. On the 30th July, 2015, each accused was convicted of the charges that he or she had faced. Mr Daly had faced three charges. These were a charge of furnishing incorrect information contrary to s. 1078(2)(a) of the Taxes Consolidation Act 1997, by furnishing to the Revenue Commissioners a list of bank accounts which did not contain a particular deposit account, an offence of conspiracy to commit an offence contrary to s. 243(1) of the Companies Act 1990, by destroying, mutilating or falsifying books and documents relating to particular bank accounts and a conspiracy to defraud the Revenue Commissioners by deleting or concealing particulars of certain bank accounts. Mr O?Mahoney was charged jointly with Mr Daly on these three counts and was also charged with two further counts of a conspiracy to commit an offence contrary to s. 243(1) of the 1990 Act, in relation to a number of other accounts and a further count of conspiring with Ms Maguire to defraud the Revenue in relation to those accounts. Those two charges related to bank accounts separate from those that featured in the charges facing Mr Daly. On the 31st July, 2015, Mr Daly was sentenced to two years imprisonment on each of the offences that he had been convicted of, the sentences to run concurrently. Mr O?Mahoney was sentenced to three years imprisonment in respect of the offence that he was convicted of, again his sentences to run concurrently. Both appellants appealed to the Court of Appeal against their convictions contending that the prosecution failed to prove that the ?substantive offences? that they were convicted of were instituted within the time which they contend was prescribed by statute for the institution of proceedings and that rather the offences were not prosecuted within the time prescribed by s. 1078(7) of the 1997 Act. One of the appellants? grounds of appeal was that a substantial number of documents that the prosecution sought to adduce in support of their case were wrongly admitted in evidence under Part II of the Criminal Evidence Act 1992 and specifically s. 5 thereof. Mr Daly contended that there was no evidence linking him to the counts of conspiracy to commit an offence contrary to s. 243(1) of the 1990 Act and the conspiracy to defraud.

Held by Birmingham J that, in circumstances where the decision to recharge the appellants was as a result of the fact that the prosecution discovered that there was a complete defence to the charge that had been presented originally, the Court could not conclude that proceedings in respect of the offence for which the appellants stood trial were commenced within the ten year window that was available; because of the passage of time, the appellants should not have had to stand trial on the so called substantive count. The Court considered that the trial judge was in error in believing that he could adjudicate on whether information contained in the documents in controversy could be admitted pursuant to s. 5(1) of the 1992 Act without hearing evidence. Birmingham J held that in seeking to pursue the objective of the efficient use of court time, the trial judge was not justified in dispensing with the requirement for proof by means of viva voce evidence of the factual matrix necessary to underpin the validity of a document?s admissibility. The Court held that the evidence linking Mr Daly to the attempted deletion of records was at too distant a remove.

Birmingham J held that the convictions of the appellants must be quashed. In the Court?s view the ground on which Mr O?Mahoney succeeded did not preclude the ordering of a re?trial. In those circumstances the Court would hear the parties on the issue.

Appeal allowed.

JUDGMENT of the Court delivered on the 15th day of March 2016 by Mr. Justice Birmingham

1 In June and July 2015, the appellants who were former senior officials in Anglo Irish Bank along with another co-accused Aoife Maguire stood trial in the Dublin Circuit Court. On the 30th July, 2015, each accused was convicted of the charges that he or she had faced. Mr. Daly had faced three charges. These were a charge of furnishing incorrect information contrary to s. 1078(2)(a) of the Taxes Consolidation Act 1997, by furnishing to the Revenue Commissioners a list of bank accounts which did not contain a particular deposit account, an offence of conspiracy to commit an offence contrary to s. 243(1) of the Companies Act 1990, by destroying, mutilating or falsifying books and documents relating to particular bank accounts and a conspiracy to defraud the Revenue Commissioners by deleting or concealing particulars of certain bank accounts.

2 Tiarnan O'Mahoney was charged jointly with Mr. Daly on these three counts and was also charged with two further counts of a conspiracy to commit an offence contrary to s. 243(1) of the Companies Act 1990, in relation to a number of other accounts and a further count of conspiring with Aoife Maguire to defraud the Revenue in relation to these accounts. These two charges relate to bank accounts separate from those that featured in the charges facing Bernard Daly.

3 On the 31st July, 2015, Mr. Daly was sentenced to two years imprisonment on each of the offences that he had been convicted of, the sentences to run concurrently. Mr. O'Mahoney was sentenced to three years imprisonment in respect of the offence that he was convicted of, again his sentences to run concurrently.

4 Briefly by way of background, it should be explained that in 1999/2000 the Revenue Commissioners conducted an audit of Anglo Irish Bank in relation to Deposit Interest Retention Tax. That audit established a nil liability to tax on the part of the bank.

5 In the course of a subsequent tax amnesty a number of clients of Anglo Irish Bank came forward to disclose to the Revenue that they had non resident accounts. This led to renewed interest on the part of Revenue in relation to the situation at Anglo Irish Bank.

6 In March 2003, the Revenue obtained a High Court order pursuant to s. 908 of the Taxes Consolidation Act 1997, requiring Anglo to hand over details of non resident deposit accounts held by customers of the bank. The terms of the s. 908 order required the bank to furnish information in relation to relevant accounts in various tranches in accordance with a schedule for disclosure between March and October 2003. Information in relation to accounts with balances over £100,000 was to be submitted by the 30th June, 2003, information in relation to balances over £50,000 by the 31st July, 2003, information in relation to balances over £25,000 by the 31st August, 2003 and balances over £1,000 by the 31st October, 2003.

7 In addition, in late October 2003, Revenue initiated a second DIRT audit of the bank which was formally opened on the 10th November, 2003. The purpose of this audit was to examine relevant deposit accounts in order to establish whether the customers were genuinely non resident or were incorrectly using overseas addresses in order to evade DIRT.

8 A task team was set up within the bank to respond to the audit. The audit involved Revenue seeking and being given lists by the bank of relevant non resident deposit accounts that were held in the bank on various dates, that were nominated specifically on the 31st March, 1990, the 31st March, 1995 and the 31st March 1999. From these lists, Revenue officials selected samples of accounts for detailed examination. The Revenue officials who were conducting the audit decided that they would examine all accounts which had a balance of over £100,000 on those dates and that they would examine samples of accounts where the balance was below that figure. In terms of sampling, the intention was that larger accounts would receive more attention and smaller accounts less.

9 What has come to be known as the substantive offence, the s. 1078 offence that both appellants faced, related to the list for the 31st of March, 1995 which was furnished to the Revenue on the 17th November, 2003. It may be noted that there was no dispute about the fact that the list was physically handed to the Revenue by Bernard Daly on that day and the issue at trial was whether it could be proved beyond reasonable doubt that he knew that the list he was handing over was incomplete and in that sense false. The prosecution case was that it was incomplete in that the list which was handed over did not contain one non resident account held in the name of John Peter O'Toole which had a balance of £132,000 on the relevant date. The prosecution contention was that the omission of the John Peter O'Toole account was entirely deliberate and that its exclusion was prompted by the fact that the account was connected to a named senior figure in the bank.

10 The conspiracy charges that the two appellants initially faced together related to alleged efforts to achieve the deletion or concealment of accounts in the name of John Peter O'Toole held under Client Record No. 581585 and Client Record No. 635464 from the bank's ?Core Banking System? (CBS) between May and December 2004. The conspiracy charges that Mr. O'Mahoney faced along with Ms. Maguire related to the deletion or concealment of information in respect of six trust accounts.

11 In relation to the sequence of events that led to the...