Judge Warns Jury Must Be Satisfied, Beyond Reasonable Doubt In Lowry Case

The jury sitting on the trial of Tipperary Independent TD, Mr Michael Lowry and on his refrigeration company Garuda Ltd.; both accused in relation to alleged tax offences, are expected to resume their deliberations on Monday morning next at 10.30am.

As readers will be aware, these charges relate to a commission payment of some €372,000 correctly due from a Finnish refrigeration company, Norpe OY, and made payable to Garuda Ltd in 2002. Same was paid to a third party in the Isle of Man on the verbal direction of Mr Lowry, who was abroad on extended leave, at the time of the transaction.

The Irish State would maintain that same payment was kept off the books in 2002, and that Mr Lowry and the company then attempted to introduce this payment in his 2006 tax returns.

Mr Lowry and Garuda Ltd. have both rigorously denied these charges, pleading not guilty to knowingly delivering incorrect accounts and information in relation to Corporation Tax for the year 2002. They had also rigidly denied making an incorrect Corporation Tax Return in 2007, relating to the business year 2006 and with failing to keep proper audited accounts; allegedly brought about with Mr Lowry’s consent or connivance.

A charge alleging that Mr Lowry himself had submitted an incorrect tax return for 2002 was already dropped by the prosecution on Wednesday last.

Yesterday Mr Justice Martin Nolan, summing up, informed the jury that the issue in this case was “what Mr Lowry actually knew”. He stated that the selected jury members must be fully satisfied, beyond a reasonable doubt, that Mr Lowry was fully aware that this earned commission, had not been included in his company accounts and tax computations.

He said Mr Lowry’s explanation was that he had instructed a staff member to raise an invoice in 2002, and had assumed this had been completed and the money automatically entered onto the company’s books by his firm of accountants.

Judge Nolan also told the trial jurors that they must be fully satisfied, beyond a reasonable doubt that this is not true in order to convict. He said that if they found the explanation was reasonably believable, then they must acquit. He further stated that if the jury believed Mr Lowry did not know about the money appearing in Garuda’s 2006 accounts, they must also acquit on that charge as well.

Judge Nolan articulated that the eleven person jury must also deliver a corresponding verdict for both Mr Lowry and Garuda Ltd. as Mr Lowry was and is “the company”. He said the jury must look at the evidence in a common-sense way, before coming to a decision coldly in the light of facts.

Earlier yesterday, Mr Lowry’s personal Senior Counsel, Mr Michael O’Higgins SC had informed jurors that the case against his client was was “deeply flawed” from the “get-go” and “jaundiced from the outset”.  “You can read a lot of stuff telling you about Michael Lowry. The people of Tipperary are almost shamed for returning him, election in and election out,” Michael O’Higgins SC, told the jury. “There is no aura about Michael Lowry. No mystery about him topping the polls; he grafts,” (This referred to evidence from his political secretary, that he works from 8.00am to midnight, throughout his Tipperary constituency).

He further inquired of the jury if they had “ever made a mistake in your life, the kind of mistake that comes under scrutiny” and immediately afterwards there is some “authority figure” investigating you. “You are told your mistake is not just up for grabs, but your motive too and you are told that you are under investigation,” counsel told the jury. Mr O’Higgins said that because of “time pressures”, the charges were “simply laid against” his client, although Mr Lowry was willing to meet with his accusers, the Revenue tax inspectors. This case was taken just a mere 3 weeks before the 10 year elapsed time frame for Lowry’s alleged offence.

“Time Pressures” refers to a past statement [See Section 1078 (7)] of the Taxes Consolidation Act; regarding the then Caymen island scandal by the former Revenue Commissioner chairperson Ms Josephine Feehily.  She had then stated that while many cases passed the serious evasion test to be considered for prosecution, the time elapsed, typically in excess of 10 years since the alleged offence had occurred, meant it would not be possible to mount a successful prosecution.

[Section 1078 (7)] of the Taxes Consolidation Act provides that proceedings must be initiated within 10 years from the date of the commission of the offence]  Notwithstanding any other enactment, proceedings in respect of an offence under this section may be instituted within 10 years from the date of the commission of the offence or incurring of the penalty, as the case may be.]

Mr O’Higgins asked the jury if they had found it somewhat bizarre that Mr Lowry had never once been interviewed by a tax inspector, despite his home and business premises being raided, on the same hour, by some 21 persons employed by Revenue. Taxes Inspector Ms Shelia Hanley who was involved in the raid and the thorough search of Mr Lowry’s home, had informed the jury that she accepted that only a “small sheaf ” of documents were recovered and same were “not of any evidential value”, meaning that nothing untoward had been located suggesting any criminal activity.

Mr O’Higgins claimed that Revenue inspectors had put their summons out, because of time pressures, without even having a case against Mr Lowry. He said the jury now needed to focus on whether Mr Lowry had the fullest knowledge of what had been accounted for in his company’s books. Here he said was a case where there was an ‘excessive form of zeal’; ‘a form of tunnel vision’, and a case brought about which displayed utter ‘inflexibility’ and was entirely ‘disproportionate with regard to the real facts’.

We will return to report on this case on Monday next, when the jury will again convene to further deliberate.