Director of Public Prosecutions -v- Forsey, [2018] IESC 66 (2018)

Docket Number:132/16
Party Name:Director of Public Prosecutions, Forsey
 
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THE SUPREME COURT[Supreme Court Appeal No: 132/2016]

Clarke C.J.

MacMenamin J.

Dunne J.

O’Malley J.

Finlay Geoghegan J.

BETWEEN:

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENTAND

FRED FORSEYAPPELLANT

Judgment of Ms. Justice Iseult O’Malley delivered the 21st December 2018

  1. In an earlier decision delivered on the 8th November 2018 the Court quashed the convictions of the appellant on six counts of corruption in public office (see Director of Public Prosecutions v Forsey [2018] IESC 55). The Director of Public Prosecutions now seeks an order for a retrial.

    Background

  2. The trial, which took place in 2012, was concerned with payments made to the appellant over a period of months in 2006 by a person who was attempting to obtain planning permission for a proposed development in Co. Waterford. Receipt of the money, which came to a total of €80,000, was not denied, and nor was the fact that the appellant engaged in activities intended to promote the development. The central issue in the trial was whether he accepted the money corruptly. Relevant evidence in this respect was provided by the appellant’s wife, who gave evidence on behalf of the prosecution.

  3. The jury was instructed that the statutory presumption provided for in the relevant legislation had the effect that the appellant was to be presumed to have received the money corruptly unless he proved on the balance of probabilities that he did not. This Court has found that instruction to have been erroneous, and to have resulted from what appears to have been a mutual legal error on the part of all of the counsel involved as well as the trial judge.

  4. The maximum sentence for the offences in question was, at that time, seven years’ imprisonment. Having been convicted, the appellant was sentenced to six years with the last two suspended. In circumstances discussed in the substantive judgment his appeal did not come on for hearing before the Court of Appeal until the custodial element of the sentence had been completed. He served the sentence in full apart from the final three months, when he was granted temporary release to undertake community service under the supervision of the Probation Service. The suspended element has now expired without any breach of his bond.

    Submissions

  5. The Director accepts that the fact that the sentence has been served is a significant factor. However, she takes the position, in essence, that there should be a retrial because it is in...

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