Lawyers for the former Anglo CEO David Drumm have told a jury at the Circuit Criminal Court that he should not be criminalised for "trying to save the bank" and "answering Ireland's call" when he authorised a €7.2bn transaction aimed at making its balance sheet look better.
Senior Counsel Brendan Grehan said there was "no secrecy, deception, trickery or skullduggery" in the 2008 transaction which saw money move between Anglo and Irish Life & Permanent and Irish Life Assurance which made customer deposits in Anglo look €7.2bn better.
He described it as "legitimate balance sheet management".
David Drumm, aged 51, from Skerries in County Dublin has pleaded not guilty to conspiring to defraud and to false accounting.
We need your consent to load this rte-player contentWe use rte-player to manage extra content that can set cookies on your device and collect data about your activity. Please review their details and accept them to load the content.Manage Preferences
The prosecution alleges he authorised a conspiracy in 2008, to deceive people by making it look as if customer deposits to Anglo, were €7.2bn greater than they were.
In his closing argument to the jury, Mr Grehan said not one single person had come forward to say they had suffered a loss as a result of the transaction which had been carried out with the knowledge of many highly experienced people inside and outside the bank and yet no red flags were raised.
Despite the size of the transaction, there was no evidence of anyone being defrauded, Mr Grehan said.
He told the jury members they had seen a sucession of witnesses and heard phone calls in which colourful language was used "by people under severe pressure". However, he said there was no evidence that anyone was doing this for personal profit. Instead he said it was "people doing their job".
He said: "No one gained, no one lost, no one got rich, no one got poor and there is no one living on a Caribbean Island with €7.2bn. There is no crime, there is no fraud, there is no false accounting, there is no evidence that everyone was misled and there simply was no conspiracy.
"You were told with the evidence of accountants' hindsight opinion that this was different but you were also told that this was not trial by accountants."
Mr Grehan said it would be a very big step to criminalise someone in a case that was missing all the hallmarks of fraud and criminal activity.
"There was no one standing over a shredder afterwards destroying evidence. There were no whistleblowers and not a single person was struck that something wrong was going on. The records do not show a conspiracy, they are evidence of transactions happening and nothing more."
He said Mr Drumm had "answered Ireland's call and when it was made he did not desert his post. Judge him by what confronted him and not with 20/20 hindsight. Judge him as the reasonable men and women you are," he said.
"There was "no crookery or hookery involved. This was not a con job, it was someone doing their best in the circumstances in which they found themselves and in those circumstances you ought to acquit."
Mr Grehan had earlier outlined the global financial climate in the months leading up to the 2008 transaction at the centre of the trial.
Mr Grehan had described the transactions at the centre of the trial as "legitimate balance sheet management".
He said this was fundamental to the case and why they were saying he was not guilty of any fraud.
He told the jury that many eyes had looked over it without anyone raising a red flag. He said the transactions could not be viewed in isolation and he set out the background of the global financial crisis.
He said the prosecution had to prove two things: the action and the mental element to it.
The actions were not in dispute at all so it was all about the intent, he said.
He said there could be crimes of carelessness or recklessness but none of the crimes the jury are deciding on can be committed carelessly or recklessly.
Intentionally means what it says on the tin that you are acting with a purpose of bringing about a particular result, he said.
He told the jury it was not here to find Mr Drumm innocent, that was not the function of a jury.
It could only find that he was either guilty or that he was not guilty because the prosecution had not proven its case.
"Neither are you here to give a certificate of good character to Mr Drumm, whatever the verdict, you can't do that either," he said.
He said it was not good enough to think that he was probably guilty or even very probably guilty, they must find he is guilty beyond a reasonable doubt.
He said it was like a mini bus trying to get up a hill called the presumption of innocence. "At the top of the hill is the summit of doubt and you have to get over that to get beyond a reasonable doubt. If evidence is the fuel there must be enough to get you up and over the top of the hill."
He told the jury members they must take a sceptical approach and demand to see the evidence and test the evidence.
Mr Grehan pointed to numerous emails which he said openly discussed the transaction.
"What is missing is the hallmarks of fraud where people would not be leaving paper trails."
While Mr Drumm was taking full responsibility for his part, there was an audit committee which was above him, he said.
He also said if there was something to hide there might have been some attempt to hide it, yet nothing like this was done.
He said many highly intelligent, highly competent professionals had seen details of the transactions and "many eyes" were on it from the Central Bank, Ernst and Young, PWC and the bank's own audit committee and yet it was suggested that "this man" had committed a criminal offence.
The number of accountants who saw details of the transaction was "almost Monty Pythonesque", he said.
He said the audit committee's function was to the correct the homework of the executives and was specifically empowered to decide what notes should be made on the bank's accounts.
He said the three "wise men of the audit committee, these titans of industry with enormous experience had missed it. How then can it be, that he (Mr Drumm) is criminally liable for something that they missed?"
He said it was very easy to be critical of the decisions with the benefit of hindsight and say they were the wrong decisions.
He quoted Theodore Roosevelt who said: "In any moment of decision the best thing you can do is the right thing, the next is the wrong thing and the worst thing you can to do is nothing" if others are looking to you for guidance.
Mr Grehan said in "a battlefield-type situation, calls were made, decisions were made and just because the wrong decisions were made that cannot ground a criminal offence".
He said the transactions could only have had affected anyone if they had been reported at the end of the year but in the interim the Government bank guarantee came into place in September of that year and "changed everything". Customer deposits became irrelevant on the balance sheet, Mr Grehan told the jury.
He said nothing was hidden, massaged or sought to be put into a different light.
The evidence had shown that it was common practice in banking to sometimes hide things from the market to preserve confidence in the system, Mr Grehan said, adding that other things were happening which demonstrate clearly that these were the most incredibly trying times for anyone trying to manage a financial institution at the time.
The jury is expected to begin deliberating on a verdict next week.
