Title:	Director of Public Prosecutions -v- Forsey
Neutral Citation:	[2018] IESC 66
Supreme Court Record Number:	132/16
Court of Appeal Record Number:	80/2014 COA
High Court Record Number:	N/A
Date of Delivery:	12/21/2018
Court:	Supreme Court
Composition of Court:	Clarke C.J., MacMenamin J., Dunne J., O'Malley Iseult J., Finlay Geoghegan J.
Judgment by:	O'Malley Iseult J.
Status:	Approved
Result:	Appeal dismissed

THE SUPREME COURT

BETWEEN:

1. In an earlier decision delivered on the 8th November 2018 the Court quashed the convictions of the appellant on six counts of corruption in public office (see Director of Public Prosecutions v Forsey [2018] IESC 55). The Director of Public Prosecutions now seeks an order for a retrial.

Background
2. The trial, which took place in 2012, was concerned with payments made to the appellant over a period of months in 2006 by a person who was attempting to obtain planning permission for a proposed development in Co. Waterford. Receipt of the money, which came to a total of €80,000, was not denied, and nor was the fact that the appellant engaged in activities intended to promote the development. The central issue in the trial was whether he accepted the money corruptly. Relevant evidence in this respect was provided by the appellant’s wife, who gave evidence on behalf of the prosecution.

3. The jury was instructed that the statutory presumption provided for in the relevant legislation had the effect that the appellant was to be presumed to have received the money corruptly unless he proved on the balance of probabilities that he did not. This Court has found that instruction to have been erroneous, and to have resulted from what appears to have been a mutual legal error on the part of all of the counsel involved as well as the trial judge.

4. The maximum sentence for the offences in question was, at that time, seven years’ imprisonment. Having been convicted, the appellant was sentenced to six years with the last two suspended. In circumstances discussed in the substantive judgment his appeal did not come on for hearing before the Court of Appeal until the custodial element of the sentence had been completed. He served the sentence in full apart from the final three months, when he was granted temporary release to undertake community service under the supervision of the Probation Service. The suspended element has now expired without any breach of his bond.

Submissions
5. The Director accepts that the fact that the sentence has been served is a significant factor. However, she takes the position, in essence, that there should be a retrial because it is in the public interest that a criminal trial on such serious charges should proceed to a valid verdict unless the accused can demonstrate that there is prejudice to the extent that a fair trial could not be held. Although it is accepted that, in the circumstances of this case, there could be no question of a further punishment being imposed on the appellant were he to be convicted again, it is submitted that punishment is not the only consideration. The offence should be marked as such, so that further such offending may be deterred. This is particularly so, it is submitted, where the offence is one that affects public confidence in democratic institutions, public officials and the rule of law.

6. The Director points to the fact that the judgment of the Court did not relate to any infirmity in the evidence in the case (by contrast with cases such as Director of Public Prosecutions v Redmond [2004] IECCA 22) and says that all relevant evidence remains available. The lapse of time has not prejudiced the appellant.

7. The appellant relies chiefly on the fact that he has served, in full, a sentence that was close to the maximum that could have been imposed. He says that there is no case of a retrial being ordered in those circumstances. He also refers to the fact that the trial was the subject of considerable media coverage, involving “dissection” of his private life, and says that he is still dealing with the consequences in terms of his attempts to start a new career.

Discussion
8. The jurisdiction conferred on an appellate court to order a re-trial, conferred by s. 4 of the Criminal Procedure Act 1993, is a discretionary one and is clearly to be exercised on the basis of a consideration of the competing interests involved.

9. In this case, there are, in reality, only two relevant factors – on the one hand, the public interest in bringing a trial on a serious offence to a valid verdict, and on the other, the right of the individual accused not to be subjected to an unfair and oppressive process. The Director cannot claim that any other interest points to a retrial. Apart from the unlikelihood that any trial judge could think it appropriate to impose further punishment, the offence is not one involving any practical consequential orders (unlike, for example, registration of convicted sex offenders). There is no identifiable victim whose interests might require vindication.

10. Conversely, the appellant cannot point to any material factor other than the sentence. This was not a case where the appeal succeeded because of any factor such as inadequate evidence, or prosecutorial misconduct. There has been no identifiable impairment of his fair trial rights resulting from the lapse of time. No evidence has been lost, no witnesses of assistance to him are missing. He is not of advanced age, and does not claim any ill-health. While the trial was undoubtedly a very public affair, that is hardly surprising given the nature of the charges and of the evidence. It cannot be argued that accused persons who go through a high-profile trial are deserving of a greater level of protection than others.

11. In engaging with the necessary balancing exercise I would endorse the approach of the Court of Criminal Appeal in DPP v Hayes and O’Leary [2014] IECCA 5 (31st January 2014), as set out in the following passage from the judgment delivered by Clarke J.:

“The underlying principle is, perhaps, that it is necessary to place due weight on the public interest in a final decision as to guilt or innocence being made on the merits by a jury (or in an appropriate case by a judge giving a direction to the jury). That value is not absolute. There may be circumstances where it is outweighed by other considerations. The accused who has been the subject of two disagreements may well be able to argue that the interests of justice do not require a third trial. However, it does suggest that the courts should, at least in very general terms, lean in favour of adopting measures which allow the merits of the question of an accused’s guilt or innocence to be determined in the ordinary way by the criminal process. That will be so particularly where, as here, the allegations against the accused are, if true, of a serious variety. There is, in such cases, a significant public interest in a sustainable decision on the merits being reached in the ordinary course of the criminal process as to whether the accused is guilty or not guilty of the serious offences as charged.

That there may, on the facts of an individual case, be sufficiently weighty countervailing factors to require, even in the case of serious offences, that there not be a retrial cannot be doubted. Equally it seems to this court that, again particularly in the context of serious alleged offences, the countervailing factors need to be weighty.”

13. However, the Director has not been able to produce any decision in this jurisdiction where a retrial has been ordered in a case where the entirety of the sentence imposed by the trial court has been served. A brief survey of the case law of the Court of Appeal of England and Wales shows a similar situation – applications for a retrial are commonly refused where a substantial part of the sentence has been served. I do not regard the case of DPP v Fahy [2007] IECCA 102 as of much assistance in this regard. The sentence in that case was 12 months, and the accused had been released when his conviction was quashed after just over seven months. It seems to me to be futile to argue either that this was “virtually” the whole sentence (the Director’s position) or “just over half” (the appellant’s view). Allowing for normal remission, the period of time remaining to be served was under eight weeks. No substantial principle can be grounded upon that length of time.

14. The fact is that it is highly unusual for a substantial sentence to have been served before an appeal comes on for hearing. It occurred in this case for the reasons identified in the main judgment, which should arise very infrequently.

15. Bearing in mind that the sentencing process has a number of objectives, it seems to me that a person who has served a sentence is entitled to feel that any debt to society arising from his actions has already been paid, and that he can attempt to rebuild his life without further engagement with the criminal courts. The sentence served by this appellant included a period spent in community service and a further two years complying with conditions. The rehabilitative objective should also, therefore, have been satisfied. Deterrence, one would have thought, lies in the fact that sentences of this magnitude are available to the courts for offences of this nature.

16. It seems to me that in these circumstances the benefit to the public interest in a further trial is outweighed by the unfairness of putting the appellant on trial again, given the lack of any practical consequence from the prosecution point of view and the undoubted interference that would be caused to the appellant’s efforts to get on with his life.

17. I would therefore refuse the application.