DPP v Michael Fahy

• Jurisdiction: Ireland
• Judge: Finnegan J.
• Judgment Date: 28 November 2007
• Neutral Citation: [2007] IECCA 102
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 66 of 2007],66 of 07
• Date: 28 November 2007

COURT OF CRIMINAL APPEAL

Finnegan J.

Feeney J.

Irvine J.

66 of 07

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

v.

MICHAEL FAHY

APPLICANT

Abstract:

Criminal law - Criminal procedure - Appeals against conviction - Fair procedures-Evidence - Prejudice - Disclosure book of evidence - Quash and retrial

The applicant appealed against his conviction for false pretences, attempted theft and related offences on the grounds that evidence was led that was not contained in the Book of Evidence and that the evidence was more prejudicial than probative. The applicant had applied to have the jury discharged.

Held by the Court of Criminal Appeal per Finnegan J., that the trial judge ought to have discharged the jury and the appeal would be allowed and a retrial directed.

Reporter: E.F

1 Judgment of the Court delivered on the 28th day of November 2007 by Finnegan J.

2 The applicant was convicted of the following offences:

3 1. Obtaining by false pretences contrary to section 2 of the Larceny Act 1916 as amended by the Larceny Act 1990.

4 2. Attempted theft contrary to section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and common law.

5 3. Attempted theft contrary to section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and common law.

6 4. Attempting to make a gain or cause a loss by deception contrary to section 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and common law.

7 5. Attempting to make a gain or cause a loss by deception contrary to section 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and common law.

8 6. False accounting by production or making use of a document contrary to section 10(1)(c) of the Criminal Justice (Theft and Fraud Offences) Act 2001.

9 7. False accounting by production or making use of a document contrary to section 10(1)(c) of the Criminal Justice (Theft and Fraud Offences) Act 2001.

10 He was sentenced to twelve months imprisonment on each count, the sentences to run concurrently. In respect of the matters listed at 1, 2 and 3 he was in each case fined EUR25,000.

11 The notice of appeal sets out 31 separate grounds. However the grounds may be summarised as follows:

12 1. The prosecution in breach of the Criminal Justice (Miscellaneous Provisions) Act 1967, sections 413, 4C and 4D as inserted by the Criminal Justice Act 1999, section 9 led evidence not contained in the book of evidence or statement of any further evidence.

13 2. That the evidence so led was not probative and was prejudicial to the applicant.

14 3. The applicant notwithstanding a request was not given sight of a document contained in a list of further exhibits having requested sight of the same.

15 The Criminal Justice (Miscellaneous Provisions) Act 1967 as amended insofar as is relevant provides as follows:

16 `48(1) Where the prosecutor consents to the accused being sent forward for trial, the prosecutor shall, within forty two days after the accused first appears in the District Court charged with the indictable offence or within any extension of that period granted under subsection 3, cause the following documents to be served on the accused or his solicitor, if any.

• (c) a list of the witnesses the prosecutor proposes to call at the trial;

• (d) a statement of the evidence that is expected to be given by each of them;

• (e) a copy of any document containing information which it is proposed to give in evidence by virtue of Part 11 of the Criminal Evidence Act 1992 and

• (g) a list of the exhibits (if any).

  4C(1) At any time after service of the documents mentioned in section 4B(1) the prosecutor shall cause the following documents to be served on the accused or his solicitor, if any.

• (c) a statement of any further evidence that is expected to be given by any witness whose name appears on the list already served under section 4B(1)(c);

• (g) a list of any further exhibits.

  4D The accused shall have the right to inspect all exhibits mentioned in the list of exhibits served on the accused or his solicitor under section 4B or 4C."

17 The Book of Evidence contained a statement of the evidence of John Morgan who held the position of Director of Services with Galway County Council. In his statement of evidence he deals briefly with an interview with the applicant on the 10th March 2004. His statement contains the following passage:

18 "Again at the conclusion of the meeting 1 made notes of the interview that I had with Councillor Fahy which I dated 20th March 2004. On today's date 20.7.04 I have handed over to D/Garda Glynn a certified copy of these notes marked "J.M.2" I will produce and identify the original notes in court when and if required to do so":

19 The notes to which he referred were not included in the list of exhibits contained in the Book of Evidence. However by way of disclosure the entire Garda file was furnished to the applicant's solicitors on the 3rd day of May 2006 and contained in the same was a typed copy of the notes to which he referred.

20 The trial commenced on the 27th February 2007. On that morning a list of additional exhibits was served which contained an item described as "Notes of meeting between John Morgan and the accused Michael Fahy, prepared by John Morgan and referred to at page 36 of the Book of Evidence. "

21 Immediately after service junior counsel for the applicant asked for copies of all documents contained in that list but specifically asked for the notes of the meeting. By the time Mr Morgan came to give evidence on the 1st March 2007 this request had not been complied with. Very early in Mr Morgan' evidence he was asked by counsel for the prosecution and replied as follows:

• "Q. Did you take a note of this meeting with Councillor Fahy?

• A. I wrote up a note of the meeting subsequently, yes.

• Q. How long afterwards?

• A. Within a couple of days."

22 The effect of this, as is accepted before this court by counsel for the respondent, is that the notes were not admissible in evidence either as a contemporaneous note or under Part II of the Criminal Evidence Act 1992. Nonetheless counsel for the prosecution continued to elicit from the witness information contained in the notes but not contained in the statement of that witnesses' evidence included in the Book of Evidence. Relevant to the applicant's submission are the following questions and answers:

• "Q. Did he make any comment about Mr Byrne, the fencer?

• A. Councillor Fahy indicated that Mr Byrne had tried to do him, That he was only a crook, I think was the words he used, that he had given him a price when he asked him for a price for doing the work, he had given him a price of EUR12, 000, but that subsequently Mr Fahy had spoken to somebody who knew something about fencing and told him that it was only worth EUR2,500.

  And

• "Q. Did you also indicate to him that the Manager was of a mind that the matter could be resolved without going through the Gardai?

• A. I did. 1 told him that the Manager following on from receipt of my report and discussing that it had decided that if the monies that the Council was out of pocket was reimbursed and a penalty paid that he would review the matter. At the time this decision was made by the manager, Donal O'Donoghue, he was on I think his way to Australia at the time. He was going to Australia.

• Q. Who was going?

• A. Mr O'Donoghue was going to Australia for St. Patrick's Day and he indicated prior to departure if the matter was resolved and the parties were willing to pay back the money, that he would consider the matter when he came back from Australia.

• Q. What amount of penalty?

• A. EUR3,000 was the figure.

• Q. Was the figure mentioned?

• A. Yes.

• Q. When you explained all that to Councillor Fahy, what did he say to you?

• A. Initially he was going to ring Tom Byrne and discuss with him about who would pay or how it would be paid. I actually gave him Tom Byrne's phone number, mobile phone number from an invoice that was there or a copy of the invoice and we continued to discuss the matter and Councillor Fahy, he didn't ring him and then he said to me, he says, `sure, I will pay the whole lot myself, the EUR10,000'.

• Q. Did he give any reason why he said he would pay the whole lot?

• A. All he said to me was 'It is nothing really. It's only a small amount of money, he says, and qualified it by saying that he, `sure, 1 have been offered EUR3.8 million for the field in Ardrahan'."

23 At that point counsel for the applicant intervened on the basis that none of this was contained in the Book of Evidence. The court then adjourned for lunch and immediately following lunch senior counsel for the applicant applied to have the jury discharged relying on the two portions of Mr Morgan's evidence set out above on the grounds that the applicant had no notice of the same, that the information elicited by the questioning was of no relevance, of no probative value and prejudicial. While the notes referred to by Mr Morgan were mentioned in his witness statement they were not an exhibit until the first day of the trial when the list of further exhibits was served. Senior counsel for the applicant was unaware of the notes or their contents until furnished with the same over lunch. The notes had been disclosed which indicated to the defence that they would not be part of the prosecution case. The witness statement was highly misleading as it suggested that the statement was a contemporaneous note while clearly it was not.

24 In responding to the applicant's submission counsel for the prosecution accepted that he led evidence from the notes. He accepted that the portions which he led were not probative but maintained that they were not prejudicial.

25 Having considered the application the learned trial...