Title:	Director of Public Prosecutions -v- Forsey
Neutral Citation:	[2018] IESC 55
Supreme Court Record Number:	132/16
Court of Appeal Record Number:	2014 80 COA
High Court Record Number:	N/A
Date of Delivery:	11/08/2018
Court:	Supreme Court
Composition of Court:	Clarke C.J., MacMenamin J., Dunne J., O'Malley Iseult J., Finlay Geoghegan J.
Judgment by:	MacMenamin J.
Status:	Approved
Result:	Appeal allowed
Judgments by Link to Judgment Concurring Dissenting O'Malley Iseult J. Link Clarke C.J., Dunne J., Finlay Geoghegan J. MacMenamin J. MacMenamin J. Link

Clarke C.J.
MacMenamin J.
Dunne J.
O’Malley J.
Finlay Geoghegan J.

BETWEEN:

Judgment of Mr. Justice John MacMenamin dated the 8th day of November 2018

1. The existence of a planning regime which allows for potentially huge windfall profits by land rezoning, creates a risk that financially vulnerable persons, with a role in the decision-making process, will engage in corrupt activities. The right to private property guaranteed under Article 43 of the Constitution is subject to “the exigencies of the common good”. The constitutional right is not an absolute one. It is subject to the “exigencies” or requirements of the common good. Whether that constitutional right, balanced as it is by “common good” considerations, requires that the law permits such huge profits does not fall for consideration in this appeal. But it necessarily forms part of the backdrop to what occurred here.

2. I regret I am unable to agree with the outcome proposed by the majority of my colleagues in this appeal. I would not quash Mr. Forsey’s conviction. I set out herein my reasons, which derive from the totality of the circumstances to this case. There is one simple, unavoidable, fact: that the appellant, Frederick Forsey, did receive €80,000 from a Mr. Michael Ryan to use his influence as a town councillor to advance a “rezoning” project concerning Michael Ryan’s land, close to Dungarvan, County Waterford.

3. The charges against Mr. Forsey were brought under s.1 of the Prevention of Corruption Acts, 1906 to 2001. They concerned two separate but connected projects. These were, first, to influence Waterford County Council to rezone land belonging to Michael Ryan; and secondly, and alternatively, to induce the members of Dungarvan Town Council to bring into its control the Ryan lands which would have also required the consent of Waterford County Council. At the times relevant to this case, Frederick Forsey was a member of the Dungarvan Town Council in the Fine Gael interest. Mr. Michael Ryan owned substantial lands at Ballygagin, on the outskirts of Dungarvan. The lands were situated in the functional area of Waterford County Council. As a consequence, the County Council would have had responsibility for any planning application. The criminal conduct alleged was that Frederick Forsey behaved corruptly in trying to persuade the County Council to grant planning permission and when that was refused to alter the zoning of the land in the County Development Plan. Mr. Forsey was also charged that he sought to get his own council, Dungarvan Urban District Council (“UDC”) to bring within its confines the Ryan lands. This process would have required the consent of Waterford County Council. But first Dungarvan UDC would have to initiate this process. If Mr. Ryan had achieved his objective, the value of his lands would have been exponentially increased and he would foreseeably have obtained very large profits.

4. The planning application for this project was lodged with Waterford County Council on the 5th July, 2006. Officials of the planning department dealt with the application for a period of some months until the end of October, 2006. Ultimately, the County Council decided to refuse the application. The promoters did not appeal to An Bord Pleanála, as might have been anticipated. During this time, Frederick Forsey assisted the promoters over a critical period of months by then engaging in a campaign to have Mr. Ryan’s land rezoned from agricultural to industrial, commercial and residential purposes, as part of a strategic review of the county development plan. This would have required a majority vote of the elected members of Waterford County Council. Mr. Forsey was not a member of that Council, but had contacts there which he used.

5. Additionally, Mr. Forsey assisted in the pursuit of the alternative option: to have the boundaries of Dungarvan town redrawn to the advantage of Mr. Ryan, so as to include Mr. Ryan’s land. Mr. Forsey was a member of Dungarvan Town Council, which he believed could bring about this end. The charges related to both of these activities.

6. An assessment of the issues in this appeal must begin with what occurred before, at and subsequent to Mr. Forsey’s trial on charges of corrupt conduct, which took place in the year 2012. The factors which I take into account in reaching my conclusion are summarised later in this judgment. Simply put, there has been an absence of compliance with the requirements laid down by this Court in DPP v. Cronin [2006] IESC 9; [2006] 4 I.R. 329. This must be seen having regard to the nature of the defence advanced at the trial; the absence of explanation for failure to raise an important legal issues at the trial; and the failure to establish that a “fundamental injustice” occurred at Mr. Forsey’s trial.

7. In that trial, Mr. Forsey was represented by experienced senior and junior counsel. Later, in an appeal to the Court of Appeal, and in this Court, he was represented by different legal counsel. As can be seen from O’Malley J.’s judgment, the case put forward at both levels of appeal was of a different scope and nature from that pursued at the trial. In making this observation, I mean no disrespect to the counsel who represented Mr. Forsey at the trial. The distinction could be characterised as one between trial tactics as influenced, or perhaps dictated, by the facts, by contrast with deduction from legal principle. Of course, the two should go hand in hand, but to my mind, legal principle cannot be detached from the actuality of the trial. One must start there.

8. Prior to the trial, a tactical decision was taken to base the defence on accepting the proposition that Mr. Ryan had given Mr. Forsey a loan, and then to attack the credibility of the prosecution evidence, which strongly pointed to the conclusion that the €80,000 was a corrupt payment. Mr. Forsey’s defence was that this very large sum of money which he took was indeed a loan; that, in any case, he supported the project in the interests of the community; and that had the planning project succeeded, it would have created employment in the area. He contended he had no corrupt intent in receiving the monies. That he received a total of €80,000 in three payments of €60,000, €10,000 and €10,000 was proved and not disputed. These were significant sums of money.

9. The evidence of Ms. Jenny Forsey was central to the trial. In June, 2006, Mr. Forsey, the appellant, and his wife, Jenny Forsey, were living together. They later parted ways in circumstances which must be briefly described in this judgment. Ms. Forsey told the jury that Frederick Forsey mentioned to her, on a number of occasions, that he had received money from Michael Ryan to advance the “rezoning” project. She testified that, in June, 2006, before the planning application was lodged at all, and while socialising in Dungarvan, she and her husband met Michael Ryan by chance in a public house. Mr. Forsey and Mr. Ryan spoke alone for fifteen minutes. When Ms. Forsey asked Mr. Forsey what the conversation had been about, he was vague in his reply, but said something to the effect of, “I think I will get in with Michael Ryan”. Ms. Forsey testified that, at that stage, she did not understand what her husband meant. Shortly afterwards, her husband had another meeting with Michael Ryan. When Mr. Forsey returned home, he told Ms. Forsey that Michael Ryan had land in Ballygagin that he wanted to develop.

10. Unfortunately, Mr. Forsey was financially vulnerable. The family were not in a good financial situation. In the summer of 2006, Ms. Forsey did not expect that they would be able to go on an expensive holiday, because they could not afford it. She had hopes of a weekend in Killarney. Thus, she was surprised when, in late August, 2006, Mr. Forsey came home to tell the family that they were going to Rome the following Thursday, and that he had booked a holiday for them. The entire family flew to Rome on the 25th August, 2006, and returned on the 28th August, 2006. Ms. Forsey testified that she noticed at the airport that her husband had a large amount of cash. When in Rome, she asked him where this money had come from. He told her that Michael Ryan had lodged €30,000 into his bank account, and that he had to get Michael Ryan’s lands rezoned. He told her that, if he was not able to get the planning permission, there was an alternative, which was to get the Dungarvan boundary extended to include the Ballygagin lands. This also, foreseeably, had the potential to yield large financial benefits to Mr. Ryan. The jury later heard that, on the 25th August, 2006, Michael Ryan, in fact, lodged the sum of €60,000, rather than €30,000, in Frederick Forsey’s bank account.

11. Ms. Forsey testified that in September, 2006, Mr. Forsey told her that he had arranged meetings one Saturday, “all over the county”. His purpose was to meet with different councillors in order to extend the Dungarvan town boundary into the county, in a way which would have the effect of including the Ballygagin lands. Ms. Forsey testified that her husband was in “pure panic mode … this had to succeed”.

12. Unfortunately, in the Autumn of 2006, there were difficulties in the marriage. Ms. Forsey discovered the appellant was involved in another relationship. He moved out of the family home. He re-mortgaged the family home with a prime lending mortgage company. The appellant agreed to give Ms. Forsey €10,000 from the monies he had received. Later he asked to borrow this money back temporarily because the car which he used for his driving school business had been repossessed. He had said he would repay Ms. Forsey the €10,000 within days, but did not do so. Ms. Forsey testified that she pursued her husband to get this money back, and that he had not repaid it by Christmas week. On the 22nd December, 2006, she threatened him that, if he did not repay the money, she would go to An Garda Síochána to tell them about the money he had received from Michael Ryan. She testified that she “basically hounded him”.

13. The evidence in Court established that, on the 24th and the 25th August, 2006, there was a series of telephone calls between Mr. Forsey’s phone and Mr. Ryan’s phone. The €60,000 was paid into Mr. Forsey’s bank account on the 25th August, 2006.

14. Nine phone calls were made between the same numbers between the 9th and the 10th October, 2006. Then, €10,000 was lodged on the 10th October, 2006.

15. On the 22nd December, 2006, a total of 49 separate phone calls took place in one afternoon between Mr. Forsey and Mr. Ryan. All but one of these did not connect. There was one call back from Mr. Ryan. There was also a text message from the appellant. Late on that afternoon, Mr. Ryan paid a further €10,000 into Mr. Forsey’s bank account. This last piece of evidence corroborated Ms. Forsey’s own testimony that she was pressuring Mr. Forsey to give her back the €10,000 she had given him. Ultimately, it appears Ms. Forsey received €8,000 back out of the €10,000.

16. The prosecution established that, during the relevant time period, Frederick Forsey approached the Waterford County Manager, a prominent local Fine Gael TD, John Deasy, and several other members of Waterford County Council. There is no suggestion whatsoever that any of these people were aware of the background to these approaches. There was evidence from one councillor, in particular, Anne-Marie Power. Councillor Power testified that Mr. Forsey arrived at her home with maps and plans. Councillor Power’s mother testified that Mr. Forsey was at the home on that day, and that he did indeed have plans or maps with him. Later, in his own evidence, the appellant denied that he had arrived at the house with plans.

17. Mr. Forsey also approached other officials of Waterford County Council who would have had a direct engagement with the rezoning project during the period from August, 2006 onwards.

18. He also approached the Town Clerk of Dungarvan. Mr. Forsey, as a Dungarvan Town Councillor, spoke in favour of the “boundary project” at Dungarvan Town Council on three occasions.

19. Unfortunately, Mr. Forsey had also been turned down for an overdraft facility on his account of €1,000. There was no evidence that Mr. Ryan made any demands for the return of this loan, or received any repayment. The evidence set out this narrative. The prosecution case also set out evidence which undermined the defence case that this money was a “loan”.

20. At the end of the prosecution case, counsel did not make an application for a direction of no case to answer. No question was raised regarding reverse burdens of proof. The defence went into evidence. The prosecution evidence had been laid out. Mr. Forsey’s case was that the money was a loan which he intended to repay. That was his defence.

21. The gardaí interviewed Mr. Forsey as part of the investigation. Both at this garda interview, and in his evidence, Mr. Forsey testified that when he received the loan from Michael Ryan, he intended to repay it by re-mortgaging the family home. The appellant testified that he had intended to use the loan to rearrange his business, carry out improvements, and complete an extension on the house, so as to enable it to be re-mortgaged, then pay the money back “in one lump sum”. As mentioned earlier, the house was ultimately re-mortgaged with a prime lender in November, 2006. But Mr. Forsey did not repay anything to Mr. Ryan of the €49,000 surplus obtained under the re-mortgage.

22. In hindsight, it is unclear now how even the €60,000 could have been repaid. In fact, the evidence disclosed that the monies received from Mr. Ryan were spent on the Rome holiday, the purchase of two cars, including a second-hand Mercedes, the acquisition of new furniture, carpets and windows for the house, and otherwise for living expenses.

The “Loan Agreement”

23. It will be remembered that by the 25th August, 2006, Mr. Forsey had received €60,000 in total, and not €70,000. The defence case was that the money was a loan to be corroborated by a written “loan agreement”. But this defence was entirely undermined at the trial. In the course of the garda investigation, on Saturday, the 14th June, 2008, Michael Ryan produced to the gardaí a document which he claimed was a “loan agreement” made between himself and Frederick Forsey. The document was signed by both of them. It purported to be dated the 25th August, 2006. However, the amount of the loan mentioned in the loan agreement was €70,000, even though by then only €60,000 had been paid. The date on the agreement did not, therefore, tally with the sum of money mentioned in the “agreement”.

24. Later, in August, 2009, gardaí executed a search warrant at the solicitors’ office where, it was claimed, the loan document had been prepared. Examination of computer files at that office revealed that the purported loan document had not been generated by a computer in that office until the 9th January, 2007, quite soon after Ms. Forsey’s threats to go to An Garda Síochána. Significantly, this was long after the 25th August, 2006. But this was not the only inconsistency.

25. During the investigation, Frederick Forsey told the gardaí that he had signed the loan agreement on the 26th August, 2006, in the home of Michael Ryan’s brother, Patrick Ryan. But, in his statement to the gardaí, Patrick Ryan said that he had no recollection of any signing taking place at his home. Later at the trial, Patrick Ryan testified that he did, after all, remember Frederick Forsey calling to his home to sign the document, but he could not be sure when this occurred. At that stage in the trial, Mr. Forsey’s counsel indicated that his client’s position was that he had not, in fact, signed the loan agreement in Patrick Ryan’s house, but that Michael Ryan had delivered it to him directly. In his own evidence in chief at the trial, Mr. Forsey gave a rather different account, telling the jury that he had signed the loan agreement on the 26th August, 2006, on the roadside outside the County Council office in Dungarvan, and that it had been witnessed by Patrick Ryan. In cross-examination, he gave a series of conflicting and inconsistent accounts of what was “in his head” at the time he gave the garda interview. He claimed he was confused and tired. At the trial, he testified that when his wife “saw the loan”, that is, in late August, 2006, it was she who wanted to go on “another holiday”; that she booked the holiday around this time, and that they “flew out a couple of days later”. In fact, the family left for Rome the very day Mr. Forsey received the money. His evidence did not tally with the established facts.

26. At one stage during a garda interview in the investigation, it was put to Mr. Forsey that Mr. Ryan was a “tough and hard businessman”, so there would have been interest on the loan. Mr. Forsey replied, in the context of interest, “of course there was no free meal”. The loan agreement did not include a provision for interest. Counsel for the Director of Public Prosecutions submits that the defence was “torn to shreds”. It is hard to disagree.

27. Later, at the conclusion of the evidence and the judge’s charge, Mr. Forsey’s senior counsel raised some matters at the requisition stage regarding the “loan agreement” to which reference is made below. The trial judge was not asked to address any other legal issue as to proof or reverse burden. Counsel did not submit to the judge that his charge was unfair, or that he had misstated the law. In fact, in the trial court Mr. Forsey’s senior counsel said he was going to stay “well away” from legal issues, and that these were a matter for the trial judge. Frederick Forsey was convicted of the offences and sentenced to six years imprisonment.

28. The appeal has been argued with great skill in this Court. The written and oral submissions draw attention to authorities from many common law jurisdictions, and also the European Court of Human Rights. But what is abundantly clear is that these issues, now so heavily relied on, were simply not raised at trial. It is fair to say that in this appeal, Mr. Forsey’s counsel did not spend much time dealing with the evidence in the case.

29. In her judgment delivered today, O’Malley J. sets out what the trial judge should have covered in the charge. The requirements are set out at paragraph 145 of her judgment:

“145. The jury in a case of this nature should therefore be instructed clearly as to the elements of the offence. They should then be told that the prosecution has the burden of proving beyond reasonable doubt all of the elements, with the exception of the component that is the subject of the presumption – the corrupt intention. They should be told that if the prosecution has satisfied them beyond reasonable doubt of the matters it has to prove they are to take corrupt intention as having been proved, regardless of whether the prosecution has given evidence in relation to it or not, or has given only weak evidence, unless there is something in the evidence that makes them doubt that the accused had a corrupt motive. The overriding consideration is that a jury should not convict if left in doubt as to guilt”.

30. In Cronin (op.cit., at para. 6), the accused was convicted of murder in a nightclub. The accused raised the defence that he did not have the gun. The accused applied to the Court of Criminal Appeal for leave to appeal. Counsel for the applicant submitted that the trial judge erred in failing to charge the jury in relation to an alternative defence of accidental or mistaken discharge of the gun. This objection was not raised at the trial. The Court of Criminal Appeal refused leave to appeal, but subsequently certified that the issue raised was one of exceptional public importance. This Court (Geoghegan, Fennelly, McCracken, Kearns, and Macken JJ.) held, in dismissing the appeal, that when an accused was represented by an experienced legal team, a trial judge should not, of his own volition, raise possible lines of defence which the accused had chosen not to pursue. The test established in Cronin has two limbs. First, only where an appeal court is of the view that due to some error or oversight of substance a fundamental injustice had occurred, should a legal point not raised at trial be permitted to be argued on appeal; and second, there must be an explanation as to why the legal point was not raised at trial. This conclusion is reflective of the respect and integrity due to the trial process, and decisions made by counsel and the judge in the context of that trial.

31. In Cronin, two judgments were delivered, and form part of the ratio. Geoghegan J. said that he had no doubt whatsoever that counsel for the applicant in that trial had not overlooked a possible alternative of manslaughter defence; in fact, to run that alternative defence might have had the effect of weakening the defence which the applicant himself put forward in the witness box. Importantly, at page 339 of the report, Geoghegan J. premised his conclusion in dismissing the appeal on a finding that “no fundamental injustice had been caused”. In his concurring judgment, to which I will revert later, Kearns J. drew attention to a number of facts which led him, too, to dismiss the appeal. Among these was that the point at issue before the Court of Appeal and then this Court in Cronin had been raised almost three years after the trial, but had never actually been raised at the trial. These issues, in the form now advanced by Mr. Forsey’s present legal counsel, were argued first in the Court of Appeal four years after the trial. However, that elapse of time must be seen in the context of what might be described as confusion as to whether Mr. Forsey wished to appeal or not.

32. As regards that elapse of time, I agree with O’Malley J.’s observations regarding the unfortunate circumstances surrounding the then defence solicitor’s apparent failure to file a Notice of Appeal. The evidence on that issue, albeit rather unresolved, is disquieting. I say no more than that the Court of Appeal was entirely justified in extending the time for bringing the appeal.

33. But, at another level, the elapse of time seems to me to be a relevant consideration in the context of Cronin. By the time the matter did reach the Court of Appeal, the appellant had, with remission, finished serving his sentence.

34. The case has not been made that the appellant’s legal counsel lacked “legal acumen”, a factor adverted to by Kearns J. It appears that, unfortunately, neither side at the trial appeared to be alive to the decision of the Court of Criminal Appeal in the Smyth (op.cit., at para. 29). But I am not persuaded that on the facts of this case, these flaws, assessed in conjunction with the factors now set out below, justify a finding that there was a fundamental injustice. I entirely agree with O’Malley J. that an appeal court should exercise great care in reaching such a conclusion. For my part, I believe this is such a case.

35. Returning now in more detail to the judgments in Cronin, Kearns J. stated later in his judgment, at page 346,:

“It seems to me that some error or oversight of substance, sufficient to ground an apprehension that a real injustice has occurred, must be demonstrated before the court should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken. Furthermore… the Court of Criminal Appeal is concerned only with a review of the trial and the rulings made therein, and not with other suggested errors or oversights which may pre-date the trial or have been amenable to remedy in some other manner.”

37. One is left with a sense that this case has, now, become imbued with a level of sophistication, characteristics and attributes, which it never had at the trial. But this does not mean that what took place in 2012 was not a “trial in due course of law” in accordance with Article 38 of the Constitution. I do not agree that a “fundamental injustice” occurred, such that the convictions should now be quashed. The tactical decision was taken to mount a direct attack on the prosecution evidence, and to put forward the “loan” defence. The decision was taken to reduce the case to its bare essentials, and effectively to “put it up to the jury”. These tactical decisions were not so misconceived as would themselves warrant intervention by this Court. The appellant’s case to this Court does not, in my view, engage with what was established in evidence.

38. The extensive authorities referred to in this appeal, were not relied upon in the court of trial – that is evident. But, having regard to the two limbs of Cronin, there is, in fact, no evidence that the failure to cite all, or any, of these legal authorities was as a result of “error” or “oversight”. That limb of Cronin has not been satisfied. The Court is invited to infer that the absence of such evidence may be attributable to a breakdown of Mr. Forsey’s relations with his previous defence legal team. But there is no evidence to that effect. In my view, it was necessary evidence. Such evidence could have come from a number of sources. I am not persuaded that the deficiencies in the charge were sufficiently central to this case to warrant making an exception to the Cronin principles.

39. This is an unusual case – fully accepting the importance of the presumption of innocence as I do, the questions, to my mind, are whether, now, some six years after the trial, where the prosecution evidence was so coercive; where the appellant has served his sentence; and where the evidential tests in Cronin are not satisfied; this Court should now conclude that convictions for these offences should be quashed as a “matter of justice”. There will, of course, be many instances where an appeal court will conclude that the flaw in a judge’s charge to a jury will lead to the conviction being quashed, whether a retrial is ordered or not. In such cases the prosecution evidence could indeed be strong and perhaps coercive. But, on occasion, an appeal court will conclude that a conviction will be affirmed, even if it is of the opinion that the point raised is meritorious, if it considers that no miscarriage of justice has occurred. (See s.3(1) of the Criminal Procedure Act, 1993). In this appeal, the position is different, but not dissimilar. The test is the justice of the case. There are a number of factors in play. Cronin sets the criteria of fundamental injustice, and evidential thresholds. These thresholds have not been crossed.

40. I note, but do not take into account, as it did not arise, that the “proof” and “presumption” issues are now set out in the Criminal Justice (Corruption Offences) Act, 2018, with a commencement date of the 30th July, 2018. The offences of “active and passive corruption” are defined in s.5 of that new Act. The offences of giving a “gift”, “consideration”, or “advantage” that may be used to facilitate an offence under the Act is considered at s.8 of that 2018 Act. The offence of creating or using a false document is set out at s.9 of the Act. Part 4 of the Act addresses presumptions relating to corruption. Section 14 deals with the presumption of a corrupt gift, consideration or advantage. Section 15 concerns certain presumptions regarding corrupt donations. Section 16 focuses on the question of presumptions of corrupt enrichment. Both the Prevention of Corruption Act, 1906 and the Prevention of Corruption (Amendment) Act, 2001, are repealed. Thus, the legislation under which Mr. Forsey was prosecuted is no longer law.

41. I agree with the statement of the applicable law set out in O’Malley J.’s judgment, but unfortunately feel I must dissent as to the order which this Court should now make: I would dismiss the appeal as it does not comply with the requirements set out in Cronin. I should also point out that I also respectfully differ from the reasoning contained in the judgment of the Court of Appeal. Having dismissed the appeal on the other grounds discussed, the Court of Appeal considered it did not have to go on to deal with any “Cronin point”. The view I take is that Cronin should apply. I would dismiss the appeal for the reasons set out in this judgment.