D.P.P.-v- Michael Fahy, [2007] IECCA 102 (2007)

Docket Number:66/07
Judge:Finnegan J.
 
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COURT OF CRIMINAL APPEAL

66 of 07

Finnegan J.

Feeney J.

Irvine J.

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

.v.

MICHAEL FAHY

APPLICANT

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

The applicant was convicted of the following offences:-

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

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

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

  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.

  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.

  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.

  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.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 25,000.

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

  8. The prosecution in breach of the Criminal Justice (Miscellaneous Provisions) Act 1967, sections 4B, 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.

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

  10. 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.

    The Criminal Justice (Miscellaneous Provisions) Act 1967 as amended insofar as is relevant provides as follows:-"4B(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 II 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."

    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:-

    "Again at the conclusion of the meeting I made notes...

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