Director of Public Prosecutions v Forsey,  IESC 55 (2018)
THE SUPREME COURT[Record No. 132/2016]
Finlay Geoghegan J.
DIRECTOR OF PUBLIC PROSECUTIONSAPPELLANTAND
Judgment of Mr. Justice John MacMenamin dated the 8th day of November 2018
The existence of a planning regime which allows for potentially huge windfall profits by land rezoning, creates a risk that financially vulnerable persons, with a role in the decision-making process, will engage in corrupt activities. The right to private property guaranteed under Article 43 of the Constitution is subject to “the exigencies of the common good”. The constitutional right is not an absolute one. It is subject to the “exigencies” or requirements of the common good. Whether that constitutional right, balanced as it is by “common good” considerations, requires that the law permits such huge profits does not fall for consideration in this appeal. But it necessarily forms part of the backdrop to what occurred here.
I regret I am unable to agree with the outcome proposed by the majority of my colleagues in this appeal. I would not quash Mr. Forsey’s conviction. I set out herein my reasons, which derive from the totality of the circumstances to this case. There is one simple, unavoidable, fact: that the appellant, Frederick Forsey, did receive €80,000 from a Mr. Michael Ryan to use his influence as a town councillor to advance a “rezoning” project concerning Michael Ryan’s land, close to Dungarvan, County Waterford.
The charges against Mr. Forsey were brought under s.1 of the Prevention of Corruption Acts, 1906 to 2001. They concerned two separate but connected projects. These were, first, to influence Waterford County Council to rezone land belonging to Michael Ryan; and secondly, and alternatively, to induce the members of Dungarvan Town Council to bring into its control the Ryan lands which would have also required the consent of Waterford County Council. At the times relevant to this case, Frederick Forsey was a member of the Dungarvan Town Council in the Fine Gael interest. Mr. Michael Ryan owned substantial lands at Ballygagin, on the outskirts of Dungarvan. The lands were situated in the functional area of Waterford County Council. As a consequence, the County Council would have had responsibility for any planning application. The criminal conduct alleged was that Frederick Forsey behaved corruptly in trying to persuade the County Council to grant planning permission and when that was refused to alter the zoning of the land in the County Development Plan. Mr. Forsey was also charged that he sought to get his own council, Dungarvan Urban District Council (“UDC”) to bring within its confines the Ryan lands. This process would have required the consent of Waterford County Council. But first Dungarvan UDC would have to initiate this process. If Mr. Ryan had achieved his objective, the value of his lands would have been exponentially increased and he would foreseeably have obtained very large profits.
The planning application for this project was lodged with Waterford County Council on the 5th July, 2006. Officials of the planning department dealt with the application for a period of some months until the end of October, 2006. Ultimately, the County Council decided to refuse the application. The promoters did not appeal to An Bord Pleanála, as might have been anticipated. During this time, Frederick Forsey assisted the promoters over a critical period of months by then engaging in a campaign to have Mr. Ryan’s land rezoned from agricultural to industrial, commercial and residential purposes, as part of a strategic review of the county development plan. This would have required a majority vote of the elected members of Waterford County Council. Mr. Forsey was not a member of that Council, but had contacts there which he used.
Additionally, Mr. Forsey assisted in the pursuit of the alternative option: to have the boundaries of Dungarvan town redrawn to the advantage of Mr. Ryan, so as to include Mr. Ryan’s land. Mr. Forsey was a member of Dungarvan Town Council, which he believed could bring about this end. The charges related to both of these activities.
An assessment of the issues in this appeal must begin with what occurred before, at and subsequent to Mr. Forsey’s trial on charges of corrupt conduct, which took place in the year 2012. The factors which I take into account in reaching my conclusion are summarised later in this judgment. Simply put, there has been an absence of compliance with the requirements laid down by this Court in DPP v. Cronin  IESC 9;  4 I.R. 329. This must be seen having regard to the nature of the defence advanced at the trial; the absence of explanation for failure to raise an important legal issues at the trial; and the failure to establish that a “fundamental injustice” occurred at Mr. Forsey’s trial.
In that trial, Mr. Forsey was represented by experienced senior and junior counsel. Later, in an appeal to the Court of Appeal, and in this Court, he was represented by different legal counsel. As can be seen from O’Malley J.’s judgment, the case put forward at both levels of appeal was of a different scope and nature from that pursued at the trial. In making this observation, I mean no disrespect to the counsel who represented Mr. Forsey at the trial. The distinction could be characterised as one between trial tactics as influenced, or perhaps dictated, by the facts, by contrast with deduction from legal principle. Of course, the two should go hand in hand, but to my mind, legal principle cannot be detached from the actuality of the trial. One must start there.
Prior to the trial, a tactical decision was taken to base the defence on accepting the proposition that Mr. Ryan had given Mr. Forsey a loan, and then to attack the credibility of the prosecution evidence, which strongly pointed to the conclusion that the €80,000 was a corrupt payment. Mr. Forsey’s defence was that this very large sum of money which he took was indeed a loan; that, in any case, he supported the project in the interests of the community; and that had the planning project succeeded, it would have created employment in the area. He contended he had no corrupt intent in receiving the monies. That he received a total of €80,000 in three payments of €60,000, €10,000 and €10,000 was proved and not disputed. These were significant sums of money.
The evidence of Ms. Jenny Forsey was central to the trial. In June, 2006, Mr. Forsey, the appellant, and his wife, Jenny Forsey, were living together. They later...
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