DPP v Forsey

• Jurisdiction: Ireland
• Judge: Ryan P.
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IECA 233
• Court: Court of Appeal (Ireland)
• Docket Number: [2014 No. 80]
• Date: 29 July 2016

[2016] IECA 233

THE COURT OF APPEAL

Ryan P.

[2014 No. 80]

The President

Birmingham J.

Sheehan J.

BETWEEN

THE PEOPLE

(AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

PROSECUTOR/RESPONDENT

AND

FRED FORSEY

APPELLANT

Conviction – Corruption – Burden of proof – Appellant seeking to appeal against conviction – Whether trial judge misdirected the jury as to the burden of proof

Facts: The appellant, Mr Forsey, between late August 2006 and the end of that year, as an elected member of Dungarvan Urban District Council in Co. Waterford, allegedly corruptly received a series of three payments totalling ?80,000 from Mr Ryan, a person interested in a planning application for development of land at Ballygagin, Co. Waterford. The lands were situated in the functional area of Waterford County Council, so it had responsibility for the application. Dungarvan UDC?s administrative area was close by, but it had no role in relation to the planning application. The criminal conduct alleged was that he behaved corruptly in trying to persuade officials and councillors in Waterford County Council to grant permission for the proposed development, and when that was refused, to alter the zoning of the land in the County Development Plan. Mr Forsey also allegedly sought to get his own Council, Dungarvan UDC, to bring into its control the Ryan lands that were to be developed, a process that would have required consent from Waterford County Council, but first, Dungarvan UDC would have to seek to achieve that result. He was indicted on two charges each in respect of the three payments that Mr Forsey received from Mr Ryan, reflecting his endeavours first with Waterford County Council and then with Dungarvan UDC. The charges were laid under s. 1 of the Prevention of Corruption Act 1906. The respondent, the DPP, at the trial relied on the presumption of corruption in proceedings against the holder of a public office when it is proved that he received any gift, consideration or advantage from someone having an interest in the discharge by the office holder of specified functions, contending that it imposed on Mr Forsey an obligation to disprove corruption if the jury were satisfied beyond reasonable doubt that Mr Ryan had a relevant interest in the discharge of Mr Forsey?s functions; that he made the payments to Mr Forsey and that Mr Forsey was an agent within the meaning of the 1906 Act. Mr Forsey?s defence was that: (a) he did not have a function in the planning decisions; (b) he was a supporter of the proposed development; and (c) the money that Mr Ryan gave him was a loan or a series of loans which he had agreed to repay and which were the subject of a written agreement signed by him and Mr Ryan. The appellant was convicted on six counts of corruption by jury verdict at Waterford Circuit Criminal Court on 18th May 2012. On 27th June 2012, he was sentenced to six years? imprisonment on each count, to run concurrently, but with the final two years suspended in respect of each count. The court of trial had refused leave to appeal but, having changed his legal advisers, Mr Forsey successfully applied to the Court of Criminal Appeal on the 20th October 2014 for an extension of time in which to appeal and the matter ultimately came on for hearing before the Court of Appeal. Mr Forsey argued that he ought not to have been convicted because the development that he was accused of corruptly promoting was not within the jurisdiction or administrative zone of his own Council but in the area controlled by Waterford County Council; his role as an elected member of Dungarvan UDC did not give him any function in relation to a planning application made to Waterford County Council for a proposed development in its area of responsibility. Mr Forsey also argued that the trial judge misdirected the jury as to the burden of proof that arose under s. 4 of the Prevention of Corruption Act 2001. Mr Forsey said that the prosecuting counsel made the same error in his closing address to the jury.

Held by Ryan P that Mr Forsey was exploiting his position as an elected member of one Council in order to secure a successful outcome to the planning application made to the neighbouring body; his access was his elected status. Ryan P noted that on the prosecution evidence, the money was paid to him for the very purpose of exploiting his access. Ryan P held that it was not necessary for a conviction that the corrupt behaviour concerns specific statutory functions of the accused; it is sufficient if the activities can be comprised in the more general definition of being in relation to his office or position.

Ryan P held that the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered by the President on 29th July 2016

Background and Issues

1 The appellant, Mr. Fred Forsey, was convicted on six counts of corruption by jury verdict at Waterford Circuit Criminal Court on 18th May 2012. The charges were brought under the Prevention of Corruption Acts 1906 to 2001. On 27th June 2012, he was sentenced to six years' imprisonment on each count, to run concurrently, but with the final two years suspended in respect of each count. The court of trial had refused leave to appeal but, having changed his legal advisers, Mr Forsey successfully applied to the Court of Criminal Appeal on the 20th October 2014 for an extension of time in which to appeal and the matter ultimately came on for hearing before this court. By the time the appeal came for hearing, Mr. Forsey had been released after serving the full sentence less remission.

2 The prosecution case against Mr. Forsey was that between late August 2006 and the end of that, year Mr. Forsey, as an elected member of Dungarvan Urban District Council in County Waterford, corruptly received a series of three payments totalling ?80,000 from Mr. Michael Ryan, a person interested in a planning application for development of land at Ballygagin, County Waterford. The lands were situated in the functional area of Waterford County Council, so it had responsibility for the application. Dungarvan UDC's administrative area was close by, but it had no role in relation to the planning application. The criminal conduct alleged was that he behaved corruptly in trying to persuade officials and councillors in Waterford County Council to grant permission for the proposed development, and when that was refused, to alter the zoning of the land in the County Development Plan. The prosecution also charged that Mr. Forsey sought to get his own Council, Dungarvan UDC, to bring into its control the Ryan lands that were to be developed, a process that would have required consent from Waterford County Council, but first, Dungarvan UDC would have to seek to achieve that result. He was indicted on two charges each in respect of the three payments that Mr. Forsey received from Mr. Ryan, reflecting his endeavours first with Waterford County Council and then with Dungarvan UDC.

3 The charges were laid under s. 1 of the Prevention of Corruption Act 1906, as inserted by s. 2 of the 2001 Act. It provides that an agent or any other person who corruptly accepts any gift consideration or advantage as an inducement to doing any act in relation to his office or position shall be guilty of an offence. Mr. Forsey was an agent within the meaning of the 2001 Act, because he was the holder of a public office within the meaning of the Public Bodies Corrupt Practices Act 1889. Another provision of the 2001 Act that is central to the appeal is s. 4 which provides for a presumption of corruption in proceedings against the holder of a public office, as above defined, when it is proved that he received any gift, consideration or advantage from someone having an interest in the discharge by the office holder of specified functions. The benefit is deemed to have been received – and given – corruptly as an inducement or reward ?unless the contrary is proved.? The section applies to any functions of a member of a body that is part of the public administration of the State under the Planning and Development Act, 2000: section 4(2).

4 The prosecution relied on the presumption at the trial, contending that it imposed on the accused, Mr. Forsey, an obligation to disprove corruption if the jury were satisfied beyond reasonable doubt that Mr. Ryan had a relevant interest in the discharge of the accused's functions; that he made the payments to Mr. Forsey and that Mr. Forsey was an agent within the meaning of the Acts. This last point was not in dispute and neither were the payments disputed. Mr. Forsey's defence may be summarised as being that: (a) he did not have a function in the planning decisions; (b) he was a supporter of the proposed development; and (c) the money that Mr. Ryan gave him was a loan or a series of loans which he had agreed to repay and which were the subject of a written agreement signed by him and Mr. Ryan.

5 Mr. Forsey appeals on two grounds. First, he argues that he ought not to have been convicted because the development that he was accused of corruptly promoting was not within the jurisdiction or administrative zone of his own Council, Dungarvan UDC, but in the area controlled by Waterford County Council. His role as an elected member of Dungarvan UDC did not give him any function in relation to a planning application made to Waterford County Council for a proposed development in its area of responsibility. The other ground of appeal is that the trial judge misdirected the jury as to the burden of proof that arose under s. 4 of the 2001 Act. Mr. Forsey says that the prosecuting counsel made the same error in his closing address to the jury.

6 Mr. Forsey's case is that the judge was wrong in charging the jury that the accused carried the burden of proof, when the statutory factual foundation was laid, of proving a non-corrupt motive or disproving the statutory...