DPP v Forsey
| Jurisdiction | Ireland |
| Judge | Ms. Justice Iseult O'Malley |
| Judgment Date | 21 December 2018 |
| Neutral Citation | [2018] IESC 66 |
| Court | Supreme Court |
| Docket Number | [Supreme Court Appeal No: 132/2016],[S.C. No. 132 of 2016] |
| Date | 21 December 2018 |
[2018] IESC 66
THE SUPREME COURT
O'Malley Iseult J.
Clarke C.J.
MacMenamin J.
Dunne J.
O'Malley Iseult J.
Finlay Geoghegan J.
[Supreme Court Appeal No: 132/2016]
Conviction – Corruption – Unfair trial – Conviction earlier set aside – Application for retrial
Facts: The appellant had been convicted of 6 counts of corruption following allegations that he had received payment in respect of the grant of planning permission. The Supreme Court had earlier set the convictions aside, and the respondent Director now applied for a retrial.
Held by the Court, that the application would be refused. In the instant case, the appellant had already served his sentence before the matter came on appeal. To order a retrial would be an unfair infringement on the appellant’s right to rebuild his life following his sentence. DPP v Hayes and O’Leary [2014] IECCA 5 considered.
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.
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.
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.
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.
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 the public interest that a criminal trial on such serious charges should proceed to a valid verdict unless the accused can demonstrate that there is prejudice to the extent that a fair trial could not be held. Although it is accepted that, in the circumstances of this case, there could be no question of a further punishment being imposed on the appellant were he to be convicted again, it is submitted that punishment is not the only consideration. The offence should be marked as such, so that further such offending may be deterred. This is particularly so, it is submitted, where the offence is one that affects public confidence in democratic institutions, public officials and the rule of law.
The Director points to the fact that the judgment of the Court did not relate to any infirmity in the evidence in the case (by contrast with cases such as Director of Public Prosecutions v Redmond [2004] IECCA 22) and says that all relevant evidence remains available. The lapse of time has not prejudiced the appellant.
The appellant relies chiefly on the fact that he has served, in full, a sentence that was close to the maximum that could have been imposed. He says that there is no case of a retrial being ordered in those circumstances. He...
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...such a doubt exists; not simply that an issue might be arguable. This Court conducted a similar analysis in The People (DPP) v Forsey [2019] 2 IR 471. Anomalies 26 Whether constitutional analysis requires a reversed burden to circumscribe that of establishing a probability but of establishi......
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DPP v C.S.
...a point not being raised at trial, the appellate courts have overturned the conviction. An example is that of People (DPP) v Forsey [2018] IESC 66, where the issue was a fundamental one relating to the core constitutional principle of the presumption of innocence. For the purpose of ensurin......