An application for bail pending appeal by one of three former Anglo Irish Bank officials jailed last July, has been rejected by the Court of Appeal.
Bernard Daly, (67) of Collins Avenue West, Whitehall, Dublin, was found guilty of giving false information to the Revenue Commissioners in November 2003. He was also found guilty of conspiracy to delete records from the bank’s computer system and conspiracy to defraud Revenue.
The former company secretary was sentenced to two years in prison and is seeking bail pending a full hearing of an appeal against his conviction.
Mr Justice George Birmingham, sitting with Mr Justice Alan Mahon and Mr Justice Garrett Sheehan, on Wednesday, said the bail application needed to have a strong chance of being successful on appeal and some definite and discrete grounds needed to be identified, without the judges seeing the transcript of the original hearing. It did not meet the test, he said.
Seán Guerin SC, for Daly, had told the court there were substantive grounds that Daly would be successful on appeal, and on that basis he should be released on bail pending the hearing.
He also raised concerns about Daly's health. He told the court his client suffered from hemochromatosis, an excess of iron in the system. Because he needed treatment on a regular basis, he could not avail of being moved to Loughan House, a low-security prison in Cavan. He had to remain in Mountjoy Prison, where he spends "21 hours or more" in his room, Mr Guerin told the court.
He said his client’s trial had been “unfair from beginning to end” and the way in which it was presented by the prosecution substantially departed from the evidence in the case.
He said there was no evidence his client knew the list he handed over to Revenue was defective and there was “not a whit of evidence” he knew anything about the deletion of accounts.
Mr Guerin said on the morning the trial began, there were changes made to the indictment, which lists the charges against an accused, for the sole purpose of including the conspiracy charges against his client.
He also raised concerns about the nature of the investigation and said evidence of who created the list given to Revenue on November 17th, 2003, was not produced. This was the equivalent of a murder trial where the prosecution do not have the pathology for how a victim died, he said.
Mr Guerin also criticised the judge’s charge to the jury, before they retired to consider the verdict.
He said Judge Patrick McCartan, did not provide a sufficient "accomplice warning" to the jury. The only evidence against Mr Daly hinged on a conversation with former head of compliance Brian Gillespie, Mr Guerin said, and there was evidence he was an accomplice. The judge should have told the jury it was dangerous to convict on the evidence of an accomplice, he said, but instead he told them to be cautious.
Dominic McGinn SC, for the Director of Public Prosecutions, had argued the grounds for bail had not been met. He also said it was incorrect to say there was evidence that Mr Gillespie was an accomplice; it was in fact the polar opposite.
Mr Justice Birmingham said Mr Guerin advanced no less than 59 grounds for appeal and seven matters were raised in court. The court was of the view the test set out had not been met, but it would be open to providing an expedited hearing.
The judge also said the grounds that came closest to meeting the test related to the accomplice warning.
He said the court was “very conscious” of the absence of a transcript for the case and so, when the transcript does become available, “would not preclude a renewed application for bail before the hearing date”.
He set a date for hearing of January 11th.
A bail application for Tiarnan O’Mahoney, Anglo’s former chief operations officer, who was also jailed in July, will be heard on Friday.
