By Ann O’Loughlin
A former Fine Gael town councillor who received the longest prison sentence for corruption ever handed down by the courts here has won a Supreme Court order quashing his conviction.
By a four to one majority, the court overturned the conviction of Fred Forsey Junior who was jailed in 2012 for an effective four years over receiving, when he was a member of Dungarvan Town Council in 2006, payments totalling €80,000 from a developer. He has served his sentence.
The matter was adjourned for two weeks to allow the DPP decide whether to seek a retrial.
The conviction was overturned over a legal error in the approach at Mr Forsey’s trial to the onus of proof on a corruption charge as set out in Section 4 of the Prevention of Corruption Acts (POCA), which Acts have since been replaced.
The error arose from the jury being told, if they accepted a gift was given corruptly to Mr Forsey, the onus was on him to show, on the balance of probabilities, the money was not given corruptly.
Mr Forsey had denied corruption and said the money was a loan.
Giving the majority judgment, Ms Justice Iseult O’Malley said, if an accused had to prove innocent receipt of payment on the balance of probabilities, they would have to persuade the jury it was more likely than not they did not receive the money corruptly.
Because corrupt receipt is an “essential element” of the offence, that meant the accused would have to disprove that element and affirmatively prove innocence. That was “a clear inroad on the presumption of innocence”.
The prosecution must prove, beyond reasonable doubt, all of the elements except the corrupt intention and the “overriding consideration” is a jury should not convict if left in doubt as to guilt.
Mr Forsey was subjected to a trial process that breached his right to be presumed innocent, she ruled.
She noted Mr Justice John McMenamin disagreed because he considered the prosecution case was “overwhelming” and the defence evidence concerning the alleged loan was discredited to the extent no jury could have concluded Mr Forsey was not guilty.
An appellate court must be “extremely cautious” taking such an approach for reasons including it is not well placed to assess an individual’s testimony and such an approach could be seen as a “general diminution” of the status of the constitutional right to presumption of innocence and a trial in accordance with law.
On the facts of this case, it was not appropriate for the court to assume a properly instructed jury might not have found there was reasonable doubt, she said.
In his judgment, Mr Justice MacMenamin agreed with the majority’s statement of the applicable law but dissagreed the conviction should be quashed because he did not consider any “fundamental injustice” occurred at trial.
The existence of a planning regime allowing 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, he said.
The constitutional right to private property is “not absolute” and is subject to the requirements of the common good.
Whether that right requires the law to permit such huge profits was not an issue in this appeal but formed part of the backdrop of what occurred, he said.
The “one simple unavoidable fact” was Mr Forsey did receive €80,000 from Michael Ryan to use his influence as a town councillor to advance a “rezoning” project concerning Mr Ryan’s land close to Dungarvan, he said.
Mr Forsey had said the payments were a loan but there was no evidence Mr Ryan made any demands for its return or received any repayment and the evidence was the monies were spent on a holiday in Rome, two cars, new furniture, carpets and windows for a house.
Mr Forsey, of Coolagh Road, Abbeyside, Dungarvan, was convicted under the POCA in connection with receiving a total €80,000 in 2006 in three separate payments from Michael Ryan, a developer with an interest in a planning permission for development of land at Ballygagin, Co Waterford.
He was also accused of behaving corruptly in trying to persuade officials and councillors in Waterford County Council to grant permission for the development, and when that was refused, attempting to alter the zoning of the land. It was further alleged he tried to get Dungarvan UDC, of which he was formerly an elected member, to bring the lands into its control. He denied the charges and claimed the monies were loans. He was convicted at Waterford Circuit Criminal Court and sentenced to six years imprisonment, with the final two suspended.
Having obtained newly instructed lawyers, an appeal was lodged in 2014 but was dismissed in 2016 by the Court of Appeal.
The Supreme Court agreed to hear a further appeal.