DPP v Redmond

• Jurisdiction: Ireland
• Judge: McGuinness J.
• Judgment Date: 28 July 2004
• Neutral Citation: [2004] IECCA 22
• Judgment citation (vLex): [2004] 7 JIC 2803
• Court: Court of Criminal Appeal
• Date: 28 July 2004

[2004] IECCA 22

COURT OF CRIMINAL APPEAL

McGuinness J.

O'Donovan J.

de Valera J.

RECORD NO. 236/03

DPP v. REDMOND

BETWEEN

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

RESPONDENT

AND

GEORGE REDMOND

APPLICANT

Citations:

DPP V GANNON 1997 1 IR 40

HAY V O'GRADY 1992 1 IR 210

CRIMINAL PROCEDURE ACT 1993 S2(1)

CRIMINAL PROCEDURE ACT 1993 S2

Abstract:

Criminal law - Appeal - Conviction - New evidence discovered subsequent to conviction - Whether conviction unsafe - Whether leave to appeal should be granted - Criminal Procedure Act 1993, section 2(1)

Facts: the applicant was convicted on two counts of corruption by a jury. On application for leave to appeal that conviction, he submitted, inter alia, that his conviction was unsafe in light of new evidence of bank records which did not support the charges against him. The principal evidence against the applicant at the trial was testimony by the principal prosecution witness to the effect that he withdrew £10,000 from a particular bank and gave it to the applicant on a particular day as a bribe. The newly discovered bank records showed that on the day in question, no withdrawal of such a sum had been made by the principal prosecution witness.

Held by the Court of Criminal Appeal in quashing the conviction on both charges that the court was required to carry out an objective evaluation of the newly discovered fact with a view to determining in the light of it whether the conviction was unsafe. The Court of Criminal Appeal could not conclude for certain that the advent of a newly discovered fact would have no effect on the manner in which the defence was conducted at the trial and accordingly, the question of whether a newly discovered fact had rendered a conviction unsafe and unsatisfactory could not be determined by having regard solely to the course taken by the defence at the trial. Nor that the court should have regard to the course of events might have taken had it been aware in advance at the trial of the existence of a newly discovered fact, and the possibility that a different approach by the defence may have led to an acquittal. Had the bank records been available to the jury there was a strong possibility that that evidence would have raised a reasonable doubt as to whether the applicant was guilty of the particular offences with which he was charged.

Reporter: P.C.

Judgement of the Court delivered the

1 28th day of July 2004 by McGuinness J.

McGuinness J.

2 The applicant in this application for leave to appeal was convicted on two counts of corruption before His Honour Judge Michael White and a jury at the Dublin Circuit Criminal Court on 19 ^th November 2003. The applicant was convicted by a majority of ten to two. One 19 ^th December 2003 he was sentenced to twelve months imprisonment. Both counts on which the applicant was convicted arose from the same incident in which it was alleged by the prosecution that one Brendan Fassnidge, a car dealer and garage owner, gave IR£10,000 in cash by way of a bribe to the applicant in or about the month of March 1988 in return for assistance in the purchase of a right of way from Dublin County Council. At all material times the applicant held the post of Assistant City and County Manager for Dublin City and County, a post from which he has now retired. In his position as Assistant City and County Manager the applicant for many years had general charge of planning matters in the County of Dublin. Prior to his trial on the aforesaid two counts of corruption the applicant had appeared as a witness at the Tribunal of Inquiry into Planning Matters (the Flood Tribunal) and there had been considerable media publicity concerning him in connection both with that Tribunal and with other matters concerning planning.

3 Following his conviction the applicant, who had been refused leave to appeal, applied on 20 ^th February 2004 to this court for leave to appeal against his conviction. The grounds of his appeal were set out as follows:

4 1. The learned trial judge erred in law and on the facts in failing to stay the prosecution of the accused more than six months when there existed a real and serious risk that pre-trial publicity would render his trial unfair.

5 2. The learned trial judge erred in law and on facts in failing to give to the members of the jury panel from which the jury was to be selected to try the accused instructions or directions which were sufficient to ensure that potential jurors who had been exposed to pre-trial publicity and who were as a result likely to be influenced by the same did not serve on such jury.

6 3. The learned trial judge erred in law and on the facts in ruling that evidence obtained as a result of a search of the accused's house conducted on the authority of a search warrant was admissible and, in particular, in rejecting the submissions made on behalf of the accused that the said warrant was invalid.

7 4. The learned trial judge erred in law and on the facts in ruling that a statement made by the accused on the 1 ^st day of April 1999 was in law relevant and admissible in evidence."

8 On 30 ^th June 2004 the applicant applied to this court for an order granting leave to adduce new evidence namely:

9 (i) the bank records of Brendan Fassnidge at the Bank of Ireland, Blanchardstown

(ii) the statement of Sergeant Philip J. Bourke and

10 (iii) the statements of Padraic Brennan and Brendan Byrne both of the Bank of Ireland, Blanchardstown, which said records and statements were attached to a letter from the Office of the Director of Public prosecutions dated the 23 ^rd June 2004.

11 The applicant also sought leave to amend his grounds of appeal by the inclusion of a further ground of appeal namely that his conviction was unsafe in light of the new evidence of the bank records of Brendan Fassnidge which the applicants submitted, did not support the charges made against him.

12 The applicant's application was grounded on the affidavit of his solicitor Ms Clara O'Callaghan, sworn 30 ^th June 2004. The motion to adduce new evidence was heard by this court on 5 ^thJuly 2004. Judgment was reserved overnight and was delivered by Denham J. on behalf of the court on 6 ^th July 2004. This court granted leave to the applicant to adduce the proposed evidence and to amend the notice of appeal as sought. In her judgment Denham J. set out the background to the proposed evidence, to which I will refer later. The order of the court of 6 ^th July 2004 set out that the court granted the applicant's application and directed the attendance of Mr Padraic Brennan, bank manager, Bank of Ireland, Main Street, Blanchardstown, Dublin 15, on Friday the 9 ^th day of July 2004 at the hour of eleven o'clock in the forenoon in the Hugh Kennedy Court. Mr Brennan was ordered to bring with him all bank records for the period 1 ^st March 1988 to 7 ^th April 1988 inclusive as may be in the possession of Bank of Ireland in relation to Mr Brendan Fassnidge or any company relating to the said Brendan Fassnidge.

The Applicant's trial

13 At all times it was clear than the core witness for the prosecution at the trial of the applicant was Brendan Fassnidge and that the crucial element in his evidence was his allegation that he had withdrawn IR£10,000 in cash from his account at the Blanchardstown branch of the Bank of Ireland, that he placed it in a brown envelope, and that he had given this envelope containing the cash to the applicant. Mr Fassnidge gave evidence that the handover of the cash had taken place in his (Mr Fassnidge's) family home and that his wife had also been in the house at the time. No other person was present. It was accepted in evidence that Mr Fassnidge's wife was unwilling either to make a statement to the Gardai in regard to the event or to give evidence at the applicant's trial. Mr Fassnidge's evidence was that he had given the money in question to the applicant in connection with a right of way which he wished to purchase from Dublin County Council in the interests of his then garage business in Palmerstown, Co. Dublin. His evidence was that he had given the money to Mr Redmond in March 1988 and that shortly thereafter he had received a letter from Dublin County Council permitting him to buy the right of way in question. Prior to the trial of the applicant the prosecution had made disclosure of relevant materials to the defence. As was stated by the applicant's solicitor in her affidavit it was made clear by the prosecution that due to the lapse of time since the alleged incident there were no bank records in existence in relation to Brendan Fassnidge's accounts in the Bank of Ireland in Blanchardstown. In his evidence Mr Fassnidge also stated that he himself had no bank records for the relevant period. In addition, as is set out in greater detail in the judgment of Denham J., Garda Martin Harrington gave evidence at the trial that efforts had been made to secure bank records but the gardai were unable to get at the records they were looking for because the banks were not obliged to keep records beyond six years. Up to the fifth day of the trial that position was accepted by both prosecution and defence. On the fifth day of the trial evidence was given by a Mr Paul Sheeran, who had been branch manager of the Bank of Ireland in Blanchardstown in 1987 and 1988. In his evidence Mr Sheeran referred to having seen a file in the bank but was unable to give any details as to the transaction shown on the file. The defence had no notice of this evidence. Neither the prosecution nor the defence pursued the matter any further at the trial.

14 Subsequent to the applicant's conviction and sentence the applicant's solicitor corresponded with the Office of the Director of Public Prosecutions in regard to the document referred to by Mr Sheeran. Subsequently she received from the Office of...