DPP v Redmond

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 06 July 2004
• Neutral Citation: [2004] IECCA 15
• Court: Court of Criminal Appeal
• Date: 06 July 2004

[2004] IECCA 15

COURT OF CRIMINAL APPEAL

Denham J.

O'Donovan J.

Quirke J.

RECORD NO. 236/03

DPP v. REDMOND

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

GEORGE REDMOND

Citations:

PUBLIC BODIES CORRUPT PRACTICES ACT 1889 S1

PREVENTOIN OF CORRUPTION ACT 1916

CRIMINAL JUSTICE ACT 1994

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S7

COURTS OF JUSTICE ACT 1924 S33(1)

BRADDISH V DPP 2001 3 IR 127 2002 1 ILRM 151

DUNNE V DPP 2002 2 ILRM 241

MCLOUGHLIN V TUITE 1986 ILRM 304

DPP V O'BRIEN UNREP CCA 17.6.2002 2002/10/2217

DPP V KEANE UNREP CCA 29.1.1990 2000/8/2854

Abstract:

Criminal law - Practice and procedure - New evidence -Leave to adduce new evidence - Whether it would give rise to injustice if applicant not given opportunity to adduce new evidence - Whether applicant ought to be allowed to include further ground of appeal

Facts: The applicant was convicted of corruption. The offences involved the same alleged incident, the payment of case to the applicant in relation to a right of way. The applicant applied for leave to appeal against his conviction. By motion, the applicant applied for an order granting him leave to adduce new evidence, namely, bank records and statements and to include a further ground of appeal in his application for leave to appeal, namely that his conviction was unsafe in light of the new evidence of the bank records.

Held by the Court of Criminal Appeal in allowing the motion and ordering leave to adduce new evidence and in addition in granting the applicant leave to include a further ground of appeal that the court was satisfied that it would give rise to an injustice if the applicant were not given an opportunity of adducing this evidence on the hearing of the application for leave to appeal.

Reporter: R.W.

Judgment of the Court delivered on the

6 th day of July, 2004 , by Denham J.

Denham J.

1 1. George Redmond, the applicant in an application for leave to appeal, has applied for an order granting leave to adduce new evidence, namely (i) the bank records of Brendan Fassnidge at the Bank of Ireland, Blanchardstown; (ii) the statement of Sergeant Philip J. Bourke and (iii) the statements of Padraic Brennan and Brendan Byrne both of the Bank of Ireland, Blanchardstown, which records and statements were attached to a letter from the office of the Director of Public Prosecutions dated 23 ^rd June, 2004. Also, the applicant seeks an order granting leave to include a further ground of appeal, namely that his conviction is unsafe in light of the new evidence of the bank records of Brendan Fassnidge which, it is submitted, do not support the charges.

2 2. The application is grounded on an affidavit of Clara O'Callaghan, Solicitor, of the firm of Anthony Harris & Company, representing the applicant. Ms. O'Callaghan deposed:-

2 "2. I say that the applicant herein was tried and convicted on two counts of corruption at the Dublin Circuit Criminal Court on Bill 3000/01 before His Honour, Judge Michael White and Jury. Both counts arose from the one incident in was alleged by the prosecution that one Brendan Fassnidge gave £10,000.00 in cash to the applicant in or about the month of March of 1988 in return for assistance in the purchase of a right of way. The applicant was convicted by majority of 10:2 and was sentenced to 12 months imprisonment on the 19 ^thof December, 2003 which was backdated to the 19 ^th of November, 2003, when he went into custody.

3 I say that in advance of the trial voluminous disclosure was made to the defence by the prosecution and it was made clear that due to the lapse of time since the alleged incident there were no bank records in existence in relation to Brendan Fassnidge's bank accounts with the Bank of Ireland in Blanchardstown where he alleged that he had procured the £10,000 before handing it over to the applicant.

4 The situation therefore was that it was not possible to show whether in fact Brendan Fassnidge had withdrew that sum of money from the bank in relation to this alleged transaction. This was the understanding of the defence before the trial commenced.

5 At the trial, the credibility of Brendan Fassnidge and his allegation was crucial to the prosecution case. Counsel for the applicant cross-examined the prosecution's so called “core” witness Brendan Fassnidge on this basis and indeed Brendan Fassnidge made it clear that he had no bank records to back up his allegation and agreed that there were no bank records in existence. See Book “O”, Day 2 at page 37 questions 128 to 138.

6 This also appeared to be the prosecution's view as can be seen from the evidence of Garda Martin Harrington as led by the prosecution. See Book “W”, Day 10 at page 75 question 155. He stated that “Efforts were made to secure records, but the banks are not obliged to keep records beyond 6 years and we were unable to get the records we were looking for.”

7 A Mr. Paul Sheeran former Bank Manager at Bank of Ireland in Blanchardstown at the relevant time appeared to have a different view. See Book “R”, Day 5 at page 38 questions 134–138. He gave evidence that suggested that there were in fact records in existence.

8 Counsel for the [applicant] did not pursue what these records were because the prosecution had told us there were no records and he could not risk breaching the cardinal rule of cross-examination when he did not know what answer might emerge. Neither could the matter be pursued in a voire dire in case matters arose which might in fact cause the prosecution case to be advanced beyond the position that there were no records of such a transaction.

9 This state of affairs was caused through no fault of the defence who had relied on the prosecutions's apparently erroneous understanding of the true position. I say that the prosecution should have made disclosure of this matter and in this regard to have failed in their duty to properly investigate this matter and in this regard to seek out evidence both for and against the applicant.

10 After the applicant was convicted and sentenced acting on the advice of counsel, I wrote to the Office of the Director of Public Prosecutions on the 5 ^th of January, 2004 seeking the documentation referred to by Mr. Sheehan in his evidence. I say that I have new received the bank records of Brendan Fassnidge at the Bank of Ireland, Blanchardstown, Dublin. They are in two booklets marked GR/AH BOI 1 and 2 and are referred to in statements also furnished from a Sergeant Philip B. Bourke of An Garda Siochana and Padraic Brennan and Breda Byrne both of Bank of Ireland, Blanchardstown. These records and statements were attached to a letter to my firm from the Office of Director of Public Prosecutions dated the 23 ^rd of June, 2004. I beg to refer to a true copy of the said letter and attachments upon which marked with the letter “A” I have signed my name prior to the swearing hereof.

11 I say that from my perusal of the said records, it appears that it can now be stated definitely, that these bank records of Brendan Fassnidge do not support his allegation against the applicant. This I am advised is very significant in that it advances the previous position which was that there were no records to show one way or another. I say that I am advised by counsel that this is significant evidence which casts serious doubt on the reliability of the prosecution's “core” witness and hence the bare majority jury verdict in this case. In these circumstances, on behalf of the applicant, I am seeking the leave of the court to introduce this new evidence of these bank records at the hearing of the appeal and if necessary to permit a new ground of appeal to be added to deal with this matter to the effect that the conviction is unsafe due to the fact that the now available bank records do not support the evidence of Brendan Fassnidge.

12 I accordingly, pray this Honourable Court for an order in terms of the Notice of Motion herein."

Copies of (i) the bank records of Brendan Fassnidge at the Bank of Ireland, Blanchardstown, GR/AH BOI 1 and 2, (ii) the statement of Philip J. Bourke Sergeant, and (iii) statements of Padraic Brennan and Brenda Byrne, were exhibited before the Court.

3 3. The charges of which the applicant was convicted were:

"Count No. 1"

Statement of Offence

Corruption contrary to section 1 of the Public Bodies Corrupt Practices Act, 1889 as amended by the Prevention of Corruption Act, 1916.

Particulars of Offence

George Redmond, being an officer or servant of the Council of the County of Dublin, a public body, on a date unknown between the 1 ^stday of June, 1987 and the 25 ^th day of June, 1989 within the State corruptly received a gift of money from Brendan Fassnidge as an inducement to or reward for doing or forbearing to do anything in respect of the sale of a right of way at Palmerstown, County Dublin by the Council of the County of Dublin and in particular the receipt of £10,000 in cash at the home of Mr. Brendan Fassnidge.

Statement of Offence

Corruption contrary to section 1 of the Prevention of Corruption Act, 1906 as amended by the Prevention of Corruption Act, 1916.

Particulars of Offence

George Redmond, being an agent of the Council of the County of Dublin, on a date unknown between the 1 ^st day of June, 1987 and the 25 ^th day of June, 1989 within the State corruptly accepted for himself a gift of money as an inducement to or reward for showing favour to another, namely Brendan Fassnidge, in relation to his said principals affairs, namely the sale of a right of way at Palmerstown, County Dublin and in particular the receipt of £10,000 in cash at the home of Mr. Brendan Fassnidge.

The particulars of the offences were amended by the trial judge by the additional of the words "and in particular the receipt of £10,000 in cash at the home of Mr. Brendan Fassnidge.".

Statement of...