THE SUPREME COURT
[Supreme Court Appeal No: 132/2016]
Clarke C.J.
MacMenamin J.
Dunne J.
O'Malley J.
Finlay Geoghegan J.
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
APPELLANT
JUDGMENT of Ms. Justice O'Malley delivered the 8th day of November 2018
Introduction
1. In this appeal the appellant seeks to quash his conviction on six counts of corruption contrary to s. 1(1) of the Prevention of Corruption Act 1906 as inserted by s.2 of the Prevention of Corruption (Amendment) Act 2001. In brief summary, the appellant was, at the material time, a member of the Dungarvan Town Council. He received a total sum of €80,000, in three separate payments, from a person interested in a proposed development of lands in County Waterford. The prosecution case was that the money was paid and received corruptly, in consideration of the appellant's assistance in attempting to procure planning permission for the development. The alleged assistance consisted of lobbying members and staff of Waterford County Council, and, when permission was refused, proposing the extension of Dungarvan Town Council's administrative area so as to take in the lands in question. The defence was that the money was merely a loan, intended to be repayable although never in fact repaid. The appellant maintained that he supported the proposed development in the belief that it would benefit the Dungarvan area, and that he had sought the loan from the developer because he was in financial difficulty and could not get funds elsewhere.
2. The appellant was convicted in May 2012 and was sentenced the following month to six years imprisonment with the final two years suspended. No appeal was lodged until 2014, when an application to extend the time for appeal was brought before the Court of Appeal by newly-instructed lawyers. That Court ruled that it was in the interests of justice that time should be extended. It has to be noted that there were some disquieting features surrounding the application, referred to in greater detail below.
3. The first substantive issue raised in the appeal concerns the proper application of a statutory presumption of corruption that arises in certain circumstances once the making of a payment is proved. The presumption in question is provided for in s.4 of the Prevention of Corruption (Amendment) Act 2001 (hereafter "s.4"). The appellant accepts that the presumption applied to his case, but argues that the burden thereby cast upon the defence should, for the purpose of ensuring compliance with the Constitution and with the European Convention on Human Rights, be construed as an evidential burden only. It is contended that the prosecution and the trial judge both erred in approaching the case on the basis that, once the payments were proved, it was for the defence to satisfy the jury on the balance of probabilities that they were not corrupt. The appellant's legal representatives in the appeal accept that the prosecution interpretation of the legislation was not challenged in any way by counsel who acted for the defence in the trial.
4. The second issue is whether the actions of the appellant (so far as lobbying staff and members of Waterford County Council was concerned) actually came within the scope of the relevant legislative provisions as properly construed. The argument here is, in summary, that the lands sought to be developed were outside the area administered by the town council of which he was a member and he did not, therefore, have any legal power or role in making decisions about the planning application. In those circumstances it is argued that the money could not be seen as having been received on account of anything done by him "in relation to" his "office or position", as required by the legislation.
5. It seems that this issue was raised in a pre-trial application to dismiss the charges for lack of evidence. It is also clear that the appellant's counsel did raise the issue in the trial in the sense that it was put to witnesses that the appellant had no role in the planning decision, and it was urged upon the jury on behalf of the defence. However, no ruling was sought from the trial judge as to any potential legal consequences arising from the evidence, and the submissions now made by the appellant were not the subject of any legal argument in the court of trial.
6. The prosecution relies upon the judgments of this Court in DPP v Cronin (No. 2) [2006] 4 IR 329 and contends that the appellant is debarred from arguing on appeal that he was wrongly convicted by reference to issues not canvassed in the trial. In any event, the prosecution stands over the interpretation of the legislation adopted in the trial.
7. The Court of Appeal decided to give full consideration to both of the substantive arguments, notwithstanding the fact that they were not raised at the trial, and ruled against the appellant on both. It considered that the question of applying the principles discussed in Cronin did not arise since, in its view, there was no substance in either of the points raised. Had the situation been otherwise, it seems that the Court felt that it would have been bound by Cronin to hold that the trial judge had correctly charged the jury in accordance with the case as put forward by the accused unless it took the view, on hearing the appeal, that, due to some error or oversight of substance, a fundamental injustice had occurred. It is observed in the judgment that no explanation had been given as to why the points now argued had not been taken at the trial.
8. Before embarking upon consideration of the issues in the appeal, I feel it necessary to say at this stage that I am not convinced that the substantive issues, as presented, truly arise in this case. I am not at all certain, for reasons that will become apparent, that the statutory presumption was applicable on the facts of the case. However, since this was not the subject of debate the judgment proceeds to conclusion on the basis that the parties are correct in their belief that it was indeed applicable.
The statutory background
9. It is best to commence by setting out the statutory context of the trial. All of the legislation with which the Court is here concerned has recently been repealed and replaced by the Criminal Justice (Corruption Offences) Act 2018. However, as of the date of the appellant's trial in 2012, the relevant provisions were to be found in the Prevention of Corruption Acts 1889 to 2001. These Acts were to be construed together as one, and it is therefore helpful to begin with the Public Bodies Corrupt Practices Act 1889. Section 1(1) of that Act originally provided as follows:
"Every person who shall by himself or by or in conjunction with any other person, corruptly solicit or receive, or agree to receive, for himself, or for any other person, any gift, loan, fee, reward, or advantage whatever as an inducement to, or reward for, or otherwise on account of any member, officer, or servant of a public body as in this Act defined, doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which the said public body is concerned, shall be guilty of a misdemeanour."
10. A "public body" meant inter alia the council of any town, and the term "public office" meant any office or employment of a person as a member, officer or servant of a public body. The expression "advantage" included any forbearance to demand any money or money's worth, and also included the holding out of any expectation of any gift, loan, fee, reward or advantage.
11. The salient feature of this provision, for present purposes, is that it was confined to "matters and transactions" in which the public body in question was "concerned".
12. The Prevention of Corruption Act 1906 was apparently enacted out of concern about payments of "secret commissions" to agents in private commerce and was focussed on corruption in the relationship between principals and agents in that context. However, its provisions also applied to persons employed by public bodies. Section 1 created an offence in the following terms:
"If any agent corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gift or consideration as an inducement or reward for doing or forbearing to do, or for having after the passing of this Act done or forborne to do, any act in relation to his principal's affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal's affairs or business…he shall be guilty of a misdemeanour."
13. An "agent" was any person employed by or acting for another, and expressly included a person "serving under" any municipal, borough, county, or district council. "Consideration" included valuable consideration of any kind.
14. The Prevention of Corruption Act 1916 was the first in this line of legislation to introduce a statutory presumption in aid of the prosecution. Although this is not the provision relied upon by the prosecution in this case, its terms are relevant in that it was the subject of consideration in a number of the authorities relied upon by the parties. According to the Court of Appeal judgment in R. v Webster [2010] EWCA Crim 2819, the Act was introduced as a wartime emergency measure in the wake of public scandals affecting the War Office. Section 1 introduced a specific penalty for offences under the Prevention of Corruption Act 1906 and the Public Bodies Corrupt Practices Act 1889 in cases where the matter or transaction in relation to which the offence was committed was a contract or a proposal for a contract with the Crown, a government department or a public body.
15. Section 2 provided that, in any proceedings for an offence under either the Act of 1889 or the Act of 1906 involving such a contract or proposed contract, upon proof that "any money, gift or other consideration" had been "paid or given to or received by" a person in the employment of the Crown, a government department or a public body, such money, gift or consideration was to be "deemed to have been paid or given and received corruptly" as an inducement or reward for the purposes of the relevant Act.
16. The Act also expanded the definition of a "public body" to include "local and public authorities of all descriptions", and further provided that a person serving under any such public body was an "agent" within the meaning of the Prevention of Corruption Act 1906.
17. In 1943, in the case of R v Carr-Briant [1943] K.B. 607 the Court of Criminal Appeal of England and Wales quashed a conviction where the presumption set out in the Act of 1916 had led a trial judge to instruct the jury that the accused had to prove beyond reasonable doubt that he gave the money without a corrupt motive, and that they must convict if left in doubt. The Court of Criminal Appeal held that the judge's direction was contrary to authority and to the principle, established in Woolmington v DPP [1935] A C 462, that the prosecution must prove the guilt of the accused. Accordingly, the Court accepted the submission of the appellant to the effect that where, either by statute or at common law, some matter was to be presumed against an accused person "unless the contrary is proved", the jury should be directed that the burden of proof on the defence was less than that required of the prosecution, and could be discharged by evidence satisfying the jury of the probability of that which the accused was called upon to establish.
18. In Public Prosecutor v Yuvaraj [1970] A.C. 913, the Privy Council discussed the policy underlying a Malaysian provision equivalent to s. 2 of the 1916 Act. Lord Diplock said:
"The policy which underlies [the section] is, in their Lordships' view, clear. The section is limited to persons ‘in the employment of any public body'. No similar presumption applies to agents of private principals. Corruption in the public service is a grave social evil which is difficult to detect, for those who take part in it will be at pains to cover their tracks. The section is designed to compel every public servant so to order his affairs that he does not accept a gift in cash or in kind from a member of the public except in circumstances in which he will be able to show clearly that he had legitimate reasons for doing so."
19. The Privy Council also stated that the Woolmington principle was not relevant where there was an express statutory provision altering the onus of proof. It rejected an argument that a provision raising the presumption of corruption "unless the contrary is proved" could be construed as requiring only the raising of a reasonable doubt, on the basis that this would give insufficient effect to the section.
20. In R v Braithwaite [1983] 1 WLR 385 the Court of Appeal confirmed the status of the presumption in English law as follows:
"The effect of that is that when the matters in that section have been fulfilled, the burden of proof is lifted from the shoulders of the prosecution and descends upon the shoulders of the defence. It then becomes necessary for the defendant to show, on a balance of probabilities, that what was going on was not reception corruptly as inducement or reward."
21. The Court in Braithwaite commented that it would be extremely difficult, if not impossible, for the prosecution to prove that a person did not give value for a favour received. It felt that it must have become apparent to the legislature between 1906 and 1916 that the difficulties in bringing home allegations of corruption were insurmountable in the absence of a provision such as s.2.
22. However, the Court of Appeal of England and Wales revisited the issue in 2010 in R. v Webster [2010] EWCA Crim 2819, where the presumption was reconsidered in the light of the jurisprudence of the European Court of Human Rights and the obligation of United Kingdom courts (under the Human Rights Act 1998) to interpret legislation, as far as was possible, in a Convention-compliant fashion.
23. The Court found that the provision, as previously interpreted, had the appearance of violating the fair-trial guarantee of Article 6.2 of the Convention, since it required an accused to prove his innocence. The Convention did not create an absolute prohibition against the application of a reverse burden of proof to the defence in a criminal trial - the judgment of the ECtHR in Salabiaku v France (1988) 13 EHRR 379 had established that proposition - but States were obliged to confine them within reasonable limits. The Court of Appeal then went on to examine the presumption by reference to the analysis of the House of Lords in Sheldrake v. Director of Public Prosecutions [2005] 1 AC 264, where Lord Bingham had said:
"It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case."
24. The Court in Webster concluded that the imposition of the reverse burden was a necessary, reasonable and proportionate response to the circumstances in which it was introduced in 1916, given the view that there was a serious and growing problem involving the suspected corruption of public officials in a time of national emergency. It was understandable if, at that time, it was believed that the prosecution would face insuperable difficulties in proving the corrupt motive in many cases. However, the legal landscape had been changed by the introduction of measures permitting the drawing of inferences adverse to an accused in certain circumstances relating to early disclosure of the nature of the defence to be relied upon at trial. The prosecution no longer had "the cards stacked against it", since a jury would be entitled to draw inferences if no explanation for the gift was tendered to investigators, or if the explanation came suspiciously late.
25. The Court stressed that the presumption, as previously applied, raised the possibility that a jury would convict despite thinking that the accused might be innocent of a corrupt motive. In the circumstances the Court found that the imposition of a legal burden of disproving guilt was no longer necessary, and was unreasonable and disproportionate. It proceeded to "read down" the section so that it imposed an evidential burden only - by this it meant that the accused would have the burden of raising in the evidence an issue as to whether the gift was corruptly made. The ultimate legal burden of proving to the criminal standard that the payment was corruptly made would rest upon the prosecution.
26. The Prevention of Corruption Acts were amended in this jurisdiction by s. 38 of the Ethics in Public Office Act 1995. The reference in s.1 of the 1889 Act to "any member, officer or servant" of a public body was replaced with, inter alia , a reference to "an office holder", and the references to a "public body" were replaced by "office holder or public body". "Public bodies" included local authorities. The term "agent" in the 1906 Act was amended to include an office holder in a public body.
27. A new s.2 was inserted into the 1916 Act, providing for a further presumption in similar terms in prosecutions under the Acts of 1889 and 1906 concerning public contracts.
28. Finally, for the purposes of the instant case, further amendments were effected by the Prevention of Corruption (Amendment) Act 2001. Sections 2 and 4 are central to this appeal. Section 2 inserted a new s.1 into the Act of 1906. The section read (in relevant part) as follows:
1.-(1) An agent or any other person who-
(a) corruptly accepts or obtains, or
(b) corruptly agrees to accept or attempts to obtain,
for himself or herself, or for any other person, any gift, consideration or advantage as an inducement to, or reward for, or otherwise on account of, the agent doing any act or making any omission in relation to his or her office or position or his or her principal's affairs or business shall be guilty of an offence.
(2)…
(3)…
(4)…
(5) In this Act -
‘agent' includes-
(a)…
(b) (i) an office holder or director (within the meaning, in each case, of the Public Bodies Corrupt Practices Act, 1889, as amended) of, and a person occupying a position of employment in, a public body (within the meaning aforesaid)…"
(Emphasis added.)
29. It is common case that the appellant was an office holder within the definition of sub-s.(5)(b)(i) and was therefore an "agent" within the meaning of the Act. The section had the effect that a person in his position committed an offence if he or she corruptly accepted an inducement or reward on account of doing any act, or making any omission, in relation to his or her office or position.
30. Section 4 related to the presumption of corruption. Section 4(1) read as follows:
4.-(1) Where in any proceedings against a person referred to in subsection (5)(b) of section 1 (inserted by section 2 of this Act) of the Act of 1906 for an offence under the Public Bodies Corrupt Practices Act, 1889, as amended, or the Act of 1906, as amended, it is proved that -
(a) any gift, consideration or advantage has been given to or received by a person,
31. The "functions aforesaid" were specified in s.4 (2):
(2) This section applies to the following functions:
(a) the granting, refusal, withdrawal or revocation by a Minister or an officer of a Minister or by any other person employed by or acting on behalf of the public administration of the State by or under any statute of any licence, permit, certificate, authorisation or similar permission,
(b) the making of any decision relating to the acquisition or sale of property by a Minister or an officer of a Minister or by any other person employed by or acting on behalf of the public administration of the State,
(c) any functions of a Minister or an officer of a Minister or of any other person employed by, acting on behalf of, or a member of a body that is part of the public administration of the State under the Planning and Development Act, 2000.
32. Further explanation was provided in s.4 (3):
(3) In this section -
"functions" includes powers and duties and references to the performance of functions includes as respects powers and duties references to the exercise of functions and the carrying out of duties;
"Minister" means a person who is a Minister of the Government or a Minister of State.
33. In rough summary, the appellant was an "agent" and was being proceeded against for an offence under s.1 of the Act of 1906 as amended. It appears to me therefore that the presumption of corruption created by s. 4 of the Act of 2001 arose if, but only if, it was proved that the person who gave him the money had an interest in the performance by the appellant of one of the functions specified in subs.(2). Otherwise, the prosecution would be obliged to prove every element of the offence in the normal way.
34. In other words, the Oireachtas created a broad offence committed by any person in the position of the appellant who accepted a prohibited payment "in relation to" his or her position or office. Where the actions alleged to have been carried out by the accused concerned any of the sets of circumstances specified in subs. (2), but not otherwise, the Oireachtas provided an aid to the prosecution in the form of the presumption. However, as noted above, it has not been argued at any stage that the facts of the case did not bring it within the specified class.
The trial
35. The events with which the trial was concerned took place in 2006. The appellant, who was by occupation a driving instructor, was a Fine Gael member of Dungarvan Urban District Council. It was undisputed that between late August and the end of December 2006 he received three payments totalling €80,000 from a Mr. Michael Ryan. Mr. Ryan was a property developer who was, at the time, interested in a proposed development involving industrial and residential elements. The lands in question were, at the time, zoned for agricultural use. They were a short distance outside the boundary of the Dungarvan town area, within the County of Waterford, and therefore any decision as to the application for planning permission would fall to be made by Waterford County Council as the responsible planning authority under the Planning and Development Act 2000.
36. Each of the six counts on the indictment alleged the corrupt receipt of money contrary to s.1 of the Act of 1906 as inserted by s.2 of the Act of 2001. There were three pairs of counts, with each pair corresponding to one of the three dates upon which a payment was made to the appellant. With reference to each of those dates it was alleged in one count that the appellant received a gift of money as an inducement to or reward for or otherwise on account of his doing an act in relation to his position as a member of the Town Council - to wit, " making representations to officials of and members of Waterford County Council in support of a proposed development ". In the second count it was alleged that he received the gift of money as an inducement to or reward for or otherwise on account of doing an act in relation to his position as a member of the Town Council - to wit, " making representations to officials of Dungarvan Town Council and speaking at a meeting of the said council in support of a proposed development of lands at Ballygagin, Dungarvan and moving a motion at a meeting of Dungarvan Town Council in support of the extension of the town boundary such as would have encompassed the said lands ".
37. The Court is informed that the appellant made an unsuccessful application, pursuant to the procedure provided by s.4E of the Criminal Procedure Act 1967, as amended, to have the charges against him dismissed on the basis that there was insufficient evidence to put him on trial. It seems that one of the grounds argued was that no offence was disclosed in circumstances where Waterford County Council had the statutory planning responsibility for the lands, and the appellant was not a member of that body. The Court does not have a transcript of that hearing and is unaware of the terms of the ruling, but the appellant was obviously unsuccessful and the matter proceeded to trial on all counts.
38. In opening the case to the jury, counsel for the prosecution told the jury, in the normal fashion, that the onus on the State in all prosecutions was to prove the guilt of the accused beyond all reasonable doubt. He then went on to explain the provisions of s.1 of the Act of 1906, as inserted by the Amendment Act of 2001, and told the jury that in law a town councillor was an "agent" for the purposes of the legislation.
39. Section 4 of the Act of 2001 was described by counsel as being " of considerable importance ". He explained it as meaning that " to some extent ", " some onus " was put on the accused, provided it had been proved that a gift was given to him corruptly - " you understand, to do something for Michael Ryan ". Counsel said that this meant that, " in the circumstances of this case ", if the jury accepted that a gift had been given corruptly to the accused there was a presumption, and the onus of proof would shift to the defence to show that the money was not given corruptly. The burden on the defence would not be beyond reasonable doubt but only on the balance of probabilities.
40. Counsel further stated that if the money was a loan, that would not be a corrupt payment. The money had to be given corruptly. It might be observed here that the statement that a loan would not be corrupt was probably made in view of the fact that the indictment alleged receipt of a gift. This may however have been an unnecessary limitation on the prosecution, having regard to the terms of the statute. Indeed, the prosecution tried to row back from it at the end of the trial without any application to amend the indictment but the trial judge, in my view correctly, refused to permit such a change of course at that stage.
41. No issue was taken with the opening speech and the prosecution proceeded with its evidence. Bank records of the payments were proved without objection. The appellant's wife gave evidence that he had told her that he had received money from Mr. Ryan and that he had to get the lands rezoned. Several witnesses, amongst them councillors and council officials in the planning department of the County Council, gave evidence of having been approached by the appellant about the proposed development and/or the rezoning of the land. He had organised briefings and meetings for councillors on the issue, and, in the case of some of the witnesses, called to their home or place of work. He had raised the issue in local media.
42. The prosecution witnesses expressed differing views as to the appropriateness of the contacts made by the appellant. A local Fine Gael T.D. said inter alia that town councillors would actively involve themselves in planning issues outside the town boundary. However, a member of the County Council said that it was not within the remit of a town councillor to be involved in zoning land. This latter witness said that her personal view was that it was wrong for people to make "strong lobbying cases" where they had no statutory role or duty. She felt that "everything" about the proposal to rezone this land was wrong.
43. The Waterford County Manager said that he was approached by the appellant. He (the manager) had told the appellant that there was a difference in the roles of the elected representatives and the executive staff, that he felt that there had been an excessive amount of pressure brought to bear in relation to this particular planning application and that it would be best left to the executive to deal with. This witness accepted however that it was normal for county and town councillors to express views on such matters.
44. There was evidence that when the planning application was refused the appellant went to Waterford County Council to examine the file.
45. The town clerk of Dungarvan gave evidence that the appellant had proposed a motion in December 2006 to the effect that the council should write to the relevant Minister and to Waterford County Council seeking an alteration of the town boundary. The clerk had advised that the motion was inappropriate at that time because there were substantial tracts of undeveloped land within the boundary. However, he agreed that he had not seen anything untoward about the motion.
46. I think that it is worth noting here that the procedure for altering the boundaries of an administrative area was provided for under the Local Government Act 2001, and not under the Planning and Development Act 2000. It would have required a great deal more than a motion of this sort. The process would have involved a considered proposal dealing with any financial and administrative implications; notice to Waterford County Council; a period of up to six months for a response from that council; a report by the Local Government Commission; and the laying of a draft order before the Houses of the Oireachtas by the Minister responsible.
47. In general, the defence approach to the prosecution witnesses was to put it to them that the appellant had acted as he did in the interests of the local community. (The credibility of the appellant's wife was attacked on the basis of the circumstances surrounding the break-up of the marriage.) There was no application for a direction and the defence went into evidence. The appellant, in summary, said that he had supported the proposed development because he had believed that it would bring jobs to the area and benefit the town of Dungarvan. He denied that the money was linked to his support, and said that he had borrowed the money from Mr. Ryan because he was in financial difficulties to the extent that he could not get a bank loan. It was intended to be repayable, although he never in fact repaid any of it and he had left the country in late 2007.
48. Although nothing now turns on it, it may be worth mentioning that documentation had been produced by the appellant purporting to establish that the money was a repayable loan. It is fair to say that the reliability of this documentation was hotly contested by the prosecution.
49. In closing the case, counsel for the prosecution again addressed the question of the burden of proof. He told the jury that they must acquit if they were not sure of the guilt of the accused. He reiterated the statutory definition of the offence. Moving on to s.4, he described it as very important and read out s.4(1)(a). By way of explanation, counsel said:
"Once the prosecution has established that the monies changed hands, then the onus of proof shifts to some extent to the defence to show firstly, that the money was given as a loan, that it wasn't received corruptly in other words. Now, that onus is not a heavy onus, it's only on the balance of probability, do you understand? And throughout the trial, as I've said, it's proof beyond reasonable doubt, you must be satisfied of the guilt of the accused beyond a reasonable doubt."
50. Counsel then explained the concept of proof beyond reasonable doubt. He repeated a number of times in the course of his speech that if the jury was not satisfied of guilt, they must acquit, and that there was no onus on the accused to prove his innocence.
51. Counsel for the appellant told the jury that the interpretation of the law was a matter for the trial judge and that, accordingly, he did not propose going "near" it. He did, however, address the jury on the presumption of innocence and proof beyond reasonable doubt, without reference to any possibility that these concepts would operate any differently in the particular context of this trial.
52. The trial judge gave a painstaking summary of the evidence and then directed the jury on the legal issues. He read out the provisions of s.1 of the Act of 1906 as inserted by s. 2 of the Act of 2001 and confirmed that a town councillor was included in the definition of " agent ". He then read out a portion of s. 4. Like prosecution counsel, he stopped after subs. (1) and directed the jury in the following terms:
"So, there is a presumption in law that the gift or consideration or advantage shall be deemed and presumed to have been received corruptly by the accused, unless the contrary is proven and I'll deal with that in a moment, ladies and gentlemen.
The effects of this section which I've just read to you and the presumptions is that the burden of proof is lifted from the shoulders of the prosecution and descends on the shoulders of the defence. It then becomes necessary for the defence to show on a balance of probability that what was going on was not the receipt of monies corruptly, as inducement or reward. The test of whether or not an advantage has been solicited or accepted by a person in the capacity of a public representative, such as a town councillor, is whether the gift would have been given or could have been effectively solicited if the person in question were not the kind of public representative he in fact was.
It is a matter for you, ladies and gentlemen, to assess if the accused [h]as proved on the balance of probabilities if there was or was not a corrupt intention and corruption for this purpose includes is not limited to receipt of money for a past favour without there having been any agreement beforehand. The question I suggest you consider on each of the six counts, ladies and gentlemen, is whether the prosecution have proven to your satisfaction beyond reasonable doubt that the monies received by the accused were corrupt payments and if so you must convict the accused and find him guilty or whether you are satisfied on the balance of probabilities that the monies received by the accused were by way of a loan or series of loans and if so you must acquit the accused and find him not guilty."
53. The judge then moved on to the presumption of innocence and stated that the accused "never" had any obligation to prove that he was not guilty, or to advance any case on his own behalf. The burden at all times rested on the prosecution. He explained the onus of proof beyond reasonable doubt and told them that if they had such a doubt in respect of any of the charges they must acquit.
"Even if you disbelieve that version of events advanced by the defence, but still think that it could reasonably be true then you have a reasonable doubt."
54. It might be respectfully observed here that the analysis of the law communicated to the jury by the prosecution and the trial judge could be regarded as somewhat confusing.
The appeal
55. I mentioned earlier that the circumstances in which the appeal eventually came about were disquieting. What happened was that an application to extend time was initiated in 2014, grounded upon an affidavit sworn by the appellant. He averred that he had at all times intended to appeal, but stated that he accepted that there might have been a misunderstanding on the part of the legal team that had represented him in the trial. The prosecution opposed the application and put the original solicitor on notice of it. That gentleman, who has since passed away, filed an affidavit in which he stated that clear instructions had been given not to appeal. He exhibited a handwritten letter of instructions purportedly signed by the appellant to this effect. The appellant responded with a further affidavit in which he denied having signed the letter and stated that the prison records confirmed that the solicitor had not visited him on the date on which the letter appeared to have been signed. This allegation was not answered by the solicitor.
56. The Court of Appeal decided, in an ex tempore ruling given on the 20th October 2014, that it was in the interests of justice to extend time. By the time the appeal came on for hearing the custodial element of the appellant's sentence had expired.
57. The two grounds of appeal put forward on behalf of the appellant were, firstly, that the development that he was accused of corruptly promoting was not within the administrative area of the town council of which he was a member, and he had no function in relation to planning applications made to Waterford County Council; and, secondly, that the trial judge had misdirected the jury as to the burden of proof arising under s. 4. It was contended that the appellant should have borne an evidential burden only.
Judgment of the Court of Appeal
58. Giving judgment on behalf of the Court, the President summarised the case made by the parties in the trial in the following terms:
"The prosecution relied on the presumption at the trial, contending that it imposed on the accused, Mr. Forsey, an obligation to disprove corruption if the jury were satisfied beyond reasonable doubt that Mr. Ryan had a relevant interest in the discharge of the accused's functions; that he made the payments to Mr. Forsey and that Mr. Forsey was an agent within the meaning of the Acts. This last point was not in dispute and neither were the payments disputed. Mr. Forsey's defence may be summarised as being that: (a) he did not have a function in the planning decisions; (b) he was a supporter of the proposed development; and (c) the money that Mr. Ryan gave him was a loan or series of loans which he had agreed to repay and which were the subject of a written agreement signed by him and Mr. Ryan."
59. Unfortunately, I have found no indication in the transcript that any mention was made, by any party, of the necessity to prove that Mr. Ryan had an interest in the discharge of the accused's "functions", or any discussion of what those "functions" might be for the purposes of the presumption.
60. As already observed, the actual applicability of the presumption was not put in issue in the appeal but it may be noted that in the introductory part of the President's judgment it is stated that it applies "to any functions of a member of a body that is part of the public administration of the State under the Planning and Development Act, 2000". At paragraph 59 it is stated that:
"Section 4 applies generally to a variety of functions concerned with the public administration of the State under any statute and particularly to the functions of a member of a body that is part of the public administration of the State under the Planning and Development Act, 2000."
61. My reservations about the applicability of the s. 4 presumption in this case stem from this analysis. The Court of Appeal appears to have read subs.(2)(c) as referring to a "a body that is part of the public administration of the State under the Planning and Development Act, 2000", and the presumption as applying to any functions of a member of such a body. It seems to me that this is a misreading.
62. I think that each of these paragraphs is concerned with people who are part of, or act on behalf of, "the public administration of the State", and that that phrase means the same thing in each paragraph. It requires no further definition or explanation. The key concept, for the purpose of the presumption, is the function being performed by such people.
63. Paragraph (a) relates to the functions being exercised when a person in one of the specified categories is deciding to grant, refuse, withdraw or revoke any licence etc. "by or under any statute". The functions in question here are, therefore, clearly statutory functions.
64. Paragraph (b) relates to the making of any decision about the acquisition or sale of property, by any of the specified persons. The functions here are the legal powers held by persons in those specified categories in relation to the acquisition or sale of property.
65. Subsection (2)(c) is, I think, concerned with people who are part of, or act on behalf of, the public administration of the State when they are exercising any functions under the Planning and Development Act 2000. I do not think that this paragraph can be construed as referring to the members of a body that is "part of the public administration of the State under the Planning and Development Act 2000" - there is no such body. Local authorities are undoubtedly bodies that are part of the public administration of the State, but they do not derive from the Planning Acts. Rather, they, and their members, exercise functions under those Acts. The paragraph relates, therefore, to those functions.
66. The effect of the interpretation accepted so far in this case would be that Ministers and civil servants, while generally prosecutable in respect of corrupt receipt of any gift in relation to their office or position, would be subject to the presumption of corruption only where the prosecution concerns licences, property transactions and planning matters, but a member of a local authority would be subject to it in respect of any offence alleged to be related to his or her position as such a member. I do not see any particular reason why this should be so, and do not think that it was the intention of the legislature.
67. The issues in the appeal were summarised in paragraph 8 of the judgment as follows:
(1) Was the trial judge correct in his interpretation of section 4?
(2) If so, was that interpretation in conformity with the Constitution, established Irish and/or common law or the European Convention on Human Rights?
(3) Were the activities of the accused as pleaded in the indictment and proven at trial acts done by him in relation to his office or position as a member of Dungarvan UDC?
(4) Is the appellant entitled to make these points on appeal when they were not mentioned at the trial?
(5) If the court is satisfied that the appellant is or may be correct in either of the submissions he makes, is it a proper case for the application of section 3 (1) (a) of the Criminal Procedure Act, 1993 to affirm the conviction nevertheless, if it considers that no miscarriage of justice has actually occurred?
(6) If the answer to any of these questions is No, what consequences follow?
The issues canvassed in the appeal
68. In relation to the applicable burden of proof, the appellant relied primarily upon the Irish authority of DPP v Smyth [2010] 3 IR 688, a decision of the Court of Criminal Appeal that was subsequently endorsed by the Court of Appeal in, inter alia , DPP v Tuma [2015] 3 I.R. 360 and DPP v P.J. Carey (Contractors) Ltd [2012] 1 IR 234. Reliance was also placed on the jurisprudence of the European Court of Human Rights as exemplified in Salabiaku and as applied in the United Kingdom in R. v Webster . It will be recalled that in the latter case, the Court of Appeal had ruled that the presumption provided for in s. 2 of the Act of 1916 must be read as imposing only a burden on the defendant to raise in the evidence an issue as to whether a gift had been made corruptly, while leaving the ultimate legal burden on the prosecution to prove that it was corrupt.
69. The Court of Appeal distinguished Smyth and held that it must be seen as applying only to the misuse of drugs legislation with which it was concerned. R. v. Webster was distinguished on the basis that the Court in that case had found the presumption dating from 1916 to be no longer necessary because of various changes to the position of the accused in criminal procedural legislation in the United Kingdom, while the 2001 Irish provision was of relatively recent enactment and operated in a different legal context.
70. The Court was satisfied that s.4 was clear in its terms, and imposed upon the defence the burden of discharging the presumption by establishing facts and circumstances that exempted him from criminal liability. This was, it found, a legal burden, rather than merely evidential.
71. It was accepted that this analysis raised the possibility of a conviction in circumstances where the jury had been left by the prosecution case with a reasonable doubt as to guilt, but were not satisfied as to innocence on the balance of probabilities. The Court therefore considered whether this scenario was permissible having regard to the Constitution and to the European Convention on Human Rights. It found, having considered O'Leary v The Attorney General [1995] 1 I.R. 254, Hardy v Ireland [1994] 2 I.R. 550 and Salabiaku that the right to be presumed innocent was not absolute, and that it was not in principle contrary to due process or to the concept of a fair trial protected by Article 38.1, or to Article 6 of the Convention, to impose an obligation on the accused to prove some defence to a criminal charge. The questions to be determined by a court were, firstly, whether the legislative provision was clear and explicit; and secondly, whether the imposition of the burden in the circumstances was necessary, reasonable and proportionate.
72. Having regard to both the national and international experience of corruption that lay behind the domestic legislation and a number of international instruments, the Court considered that the presumption was justified by the difficulty of proving corrupt intention on the part of a person who receives a benefit. The courts were obliged to respect the judgment of the legislature, provided that the essential tests for constitutional propriety "whether expressed as necessity, reasonableness and proportionality or otherwise" had been met. The question was whether there had been a fair trial, notwithstanding the presumption.
73. The Court explained why, in its view, the imposition of an evidential burden as was done in Smyth would not meet the case. Such a burden it considered, was simply
"a view of the practical implications that arise in the course of a trial when the prosecution has proved its case sufficiently to go to the jury, whether that is called prima facie proof or some other description, which means that if nothing else is proven the accused person may be convicted. It is not certain that he or she is going to be convicted but the probability or the risk of such event has arisen because of and depending on the cogency of the prosecution evidence."
74. Similarly, in paragraph 69, the concept of the "evidential burden" is referred to as "an evidential consequence that follows from facts having been established".
75. The Court considered that it was clear that the legislature had not intended to impose only a burden of "proving a reasonable doubt", since that, in its view, would bring about only the same situation as that arising in any case where a prima facie case had been made out by the prosecution. That, it felt, would "eviscerate" the section and render the statutory presumption nugatory. Section 4 could therefore be read only as imposing a burden of proof upon the balance of probabilities.
76. This interpretation is discussed further below.
77. In the view of the Court, the section was neither unconstitutional nor in breach of Article 6.2 of the Convention. It was an exceptional measure, to be confined to particular and well-defined circumstances where it could be demonstrated to be necessary. The question of necessity was for the legislature to determine, subject to review by the courts on grounds of reasonableness assessed by State (Keegan & Lysaght) v Stardust Victims Compensation Tribunal [1986] IR 642 principles. In this case, the presumption was justified by the corrosive and destructive effect of corruption on society.
78. The Court accepted that it might be taking a different approach to that in Smyth . However, it believed that the statutory provisions in the two cases differed to the extent that it was possible to distinguish Smyth without disagreeing with it. It considered that in Smyth and Tuma , the presumption under the Misuse of Drugs Act 1977, as amended, had been interpreted as requiring no more than the common law did when a prima facie case had been made out by the prosecution - that being an evidential burden. This, the Court of Appeal felt, was justified if the provision was ambiguous or unclear but not where it was clear.
79. Moving on to the issue relating to the scope of the offence (where the argument affected directly only the three counts relating to the contacts with Waterford County Council), the Court of Appeal held that the statutory words "in relation to his office or position" were wide. The appellant had access to the members and staff of Waterford County Council because of his status and, on the prosecution case, money was paid to him to exploit his status. It was not necessary that the corrupt behaviour should concern the specific statutory functions of the accused, and it was sufficient if the activities could be comprised in the more general definition provided there was a sufficient nexus between the allegedly corrupt behaviour and the position of the accused.
Burdens of proof - terminology
80. Before embarking upon an examination of the authorities I think it may be helpful to say something about terminology. There is no doubt but that the area of presumptions and reverse onuses can be complex, and the task of practitioners and trial judges is not made any easier by the fact that, at different times, various judges and writers have adopted varying terms to describe the effects of certain legal principles. I propose to adopt the terminology used in Chapter 2 of McGrath's Evidence (2nd ed., Dublin 2014).
81. The "legal burden" is a burden of proof "properly so called" and is the burden fixed by law on a party to satisfy the tribunal of fact as to the existence or non-existence of a fact or matter. Where the legal burden is borne by a party in relation to an issue, he or she is required to persuade the tribunal of fact to the criminal or civil standard of proof, as appropriate.
82. In a criminal trial, the prosecution bears the legal burden on the ultimate issue - that is, the guilt of the accused - and must prove that issue beyond reasonable doubt. In some circumstances, the law imposes a legal burden on the accused in respect of a particular defence. The obvious example of this is the defence of insanity - an accused who wishes to avail of this must satisfy the jury on the balance of probabilities that he or she meets the applicable criteria.
83. An "evidential burden" is the burden borne by a party who contends that a particular issue should be put before the decision-maker. It is discharged by adducing (or by pointing to relevant evidence adduced by the other party) sufficient evidence for that purpose, to the point that the trial judge is satisfied that it should be left for consideration.
84. In a criminal trial, the prosecution bears the evidential burden in respect of the guilt of the accused. It is discharged by adducing sufficient evidence - generally referred to as a prima facie case - to go to the jury in respect of each of the essential elements making up the offence under consideration. If evidence is lacking in respect of an essential element, the evidential burden will not have been discharged and the trial judge will direct a verdict of not guilty. Where a trial judge finds that the evidential burden has been discharged, and a prima facie case has been made out, it does not remove the legal burden from the prosecution and does not mean that the jury must convict even if no defence evidence is called. It remains open to the defence to attempt to persuade the jury that they should not convict because, for example, the prosecution evidence is weak or lacks credibility. The legal burden still remains with the prosecution to establish guilt beyond reasonable doubt, and if they do not succeed in this the jury must acquit.
85. In some circumstances, the law may cast an evidential burden on the accused. One example arises in relation to self-defence in a murder trial. The accused cannot seek an acquittal, either by way of direction or a jury verdict, simply by arguing that the prosecution has failed to negative self-defence. There must be some evidence, either in the prosecution case or adduced by the defence, before the issue will be left to the consideration of the jury.
86. In most cases, where an accused is in a position to point to sufficient evidence for the issue to be left to the jury, he or she carries no further burden. It is still for the prosecution to persuade the jury that they should be satisfied, beyond reasonable doubt, that the accused is guilty. If, for example, the evidence relied upon by the defence raises a reasonable doubt in the minds of the jury as to whether the accused had acted in self-defence, they must acquit. Thus, in The People (Attorney General) v Quinn [1965] I.R. 366, this Court held that it would be a misdirection to tell a jury that the defence had to "establish" the defence of self-defence in such a way as to "raise a reasonable doubt". However, the judgment in the case makes it clear that before the defence can be left to the jury, there must be some evidence from which the jury would be entitled to find that issue in favour of the appellant. If the evidence for the prosecution did not disclose the possible defence then the necessary evidence would fall to be given by the defence.
87. The judgment in Quinn continues:
"In such a case, however, where it falls to the defence to give the necessary evidence it must be made clear to the jury that there is a distinction, fine though it may appear, between adducing the evidence and the burden of proof and that there is no onus whatever upon the accused to establish any degree of doubt in their minds. In directing the jury on the question of the onus of proof it can only be misleading to a jury to refer to ‘establishing' the defence ‘in such a way as to raise a doubt'. No defence has to be ‘established' in any case apart from insanity. In a case where there is evidence, whether it be disclosed in the prosecution case or in the defence case, which is sufficient to leave the issue of self-defence to the jury the only question the jury has to consider is whether they are satisfied beyond reasonable doubt that the accused killed the deceased (if it be a case of homicide) and whether the jury is satisfied beyond reasonable doubt that the prosecution has negatived the issue of self-defence. If the jury is not satisfied beyond reasonable doubt on both of these matters the accused must be acquitted."
88. The burden cast upon the defence in cases such as this is a creation of the common law. However, it is clear that it is also open to the legislature to impose burdens on the defence in certain circumstances. Where the law casts a legal burden on the accused in respect of a particular issue, there will also be an evidential burden in respect of that issue.
Reverse burdens - the Irish authorities
89. The presumption of innocence, and the concomitant principle that the prosecution must prove every element of the guilt of an accused person beyond reasonable doubt, is a firmly established part of the law of this State. One of the early leading authorities is McGowan v Carville [1960] I.R. 330, where a District Justice had dismissed a summons for driving without a licence on the basis that it was for the prosecution to prove that the defendant did not have a licence. In an appeal by way of case stated the prosecution argued, inter alia , that where an act was unlawful unless done with lawful authority, the onus of proving that authority rested with the person charged.
90. In the High Court Davitt P. accepted that there could be exceptions to the general principle that the prosecution must prove every element of its case, where a particular matter was within the peculiar knowledge of the accused. However, there should be as few such exceptions as possible. Intent was an essential element in many offences, and intent could be said to be peculiarly within the person's knowledge, but it was not the case that accused persons were generally obliged to disprove intent. The prosecution's argument would have meant that every person driving a vehicle was prima facie committing an offence and could be compelled to establish his own innocence.
91. Murnaghan J. agreed, stating:
"It is a cardinal principle of the administration of the criminal law in this country, which has often been stated, and cannot be too often re-stated, that there is no onus on a person charged with an offence to prove his innocence, the onus at all times being on the State to prove his guilt…The law in this regard, I think, tries to adopt a realistic and reasonable attitude. It recognises, in cases where the non-existence of lawful authority is alleged and the existence or otherwise of such lawful authority is in issue, that it may not always be possible, because of the nature of things, for the prosecution to prove affirmatively and beyond reasonable doubt the fact of the non-existence of such lawful authority. In such cases where sufficient evidence of the fact of non-existence has in the opinion of the judge or justice been given as the nature of the particular case would reasonably require the onus of proving the contrary is then said to shift to the person charged…
…In no case, in my opinion, would it merely be sufficient to allege the non-existence of legal authority in order to shift the onus to the person charged."
92. On appeal, this Court agreed with and in essence adopted the reasoning in these two judgments.
93. The judgment of Walsh J. in People (AG) v Quinn has been referred to already. These two decisions relate, of course, to what might be called "normal" criminal trials, not involving any statutory provision.
94. In O'Leary v The Attorney General [1993] I.R. 102; [1995] I.R 254, the issue arose in respect of a prosecution for membership of an unlawful organisation. Section 24 of the Offences Against the State Act 1939 provides that in a trial on that charge, evidence that the accused was in possession of an incriminating document (as defined in the Act)
"shall, without more, be evidence until the contrary is proved that such person was a member of the said organisation…"
95. Section 3(2) of the Offences Against the State (Amendment) Act 1972 provided that evidence by a garda officer not below the rank of Chief Superintendent that he believed the accused to have been a member at the material time should be evidence that he was then such a member.
96. The plaintiff, having been convicted, sought a declaration that these provisions were unconstitutional in that they placed upon him the burden of disproving his guilt. In the High Court, Costello J. accepted that the right to be presumed innocent was not only an integral part of the common law tradition in the State, but one protected by Article 38 of the Constitution. A trial in which the accused was not afforded that right would not be one held "in due course of law". He further accepted that it followed that prima facie any statute which permitted such a trial to be held would be unconstitutional. The issue in the case, therefore, was not whether the plaintiff had a constitutionally protected right but whether the impugned provisions infringed that right.
97. Before answering that question, Costello J made a number of general observations. Amongst them was an explanation of the necessity to bear in mind that the phrase "the burden of proof" could be used in two entirely different senses, as could a statement that a statute "shifted" the burden of proof onto an accused. The "legal" or "persuasive" burden of proof was the burden imposed on the prosecution to establish the case against the accused beyond reasonable doubt. It remained on the prosecution from the beginning to the end of the trial.
"It is this burden which arises from the presumption of the accused's innocence and it is the removal of this burden by statute that may involve a breach of the accused's constitutional rights."
98. The judgment continues:
"But the phrase is also used to describe the burden which is cast on the prosecution in a criminal trial of adducing evidence to establish a case against an accused, a burden which is now usually referred to as the evidential burden of proof. In criminal cases the prosecution discharges this evidential burden by adducing sufficient evidence to raise a "prima facie" case against an accused. It can then be said that an evidential burden has been cast on to the accused. But the shifting of the evidential burden does not discharge the legal burden of proof which at all times rests on the prosecution. The accused may elect not to call any evidence and will be entitled to an acquittal if the evidence adduced does not establish his or her guilt beyond a reasonable doubt. Therefore if a statute is to be construed as merely shifting the evidential burden no constitutional infringement occurs."
99. There is no dispute with this passage in terms of the legal consequences of the concepts employed. However, I think that it may have been the source of some later confusion, arising from the use of the term "evidential burden" to describe the situation of the accused when the prosecution has established a prima facie case. It is clear that Costello J. did not intend to suggest that any legal obligation is thereby imposed on the accused. In view of subsequent developments, it is, I think, best to use the word " burden " only where such an obligation is meant.
100. Costello J. went on to say that if the effect of a statute was that the court must convict an accused, should he or she fail to adduce exculpatory evidence, then its effect was to shift the legal burden of proof, thus involving a possible breach of the accused's constitutional rights. If, by contrast, its effect was that the accused could be acquitted even if he called no evidence, because the statute did not discharge the prosecution from the obligation to prove guilt beyond reasonable doubt, then no constitutional invalidity could arise.
101. Next, Costello J. observed that a statute would not necessarily be unconstitutional merely because its effect was that the failure of the accused to give exculpatory evidence must result in conviction. The statute might simply be giving legal effect to an inference that could reasonably have been drawn from the prosecution evidence in any event. In that case, the presumption of innocence was rebutted, not by the statute, but by the inference.
102. Finally, Costello J. expressed the view that the Constitution should not be construed as absolutely prohibiting the restriction of the exercise of the right to be presumed innocent, in that the right could not be regarded as an absolute right that could never be abridged. He referred to the decision of the European Commission on Human Rights in X v. United Kingdom (no. 5124/71) (1972) 42 CD 135 as authority on the interpretation of the equivalent provision of the European Convention on Human Rights. The Commission considered that there was no contravention of the Convention where a statute created a rebuttable presumption of fact that could be disproved by the defence. It stressed that the substance and effect of any such provision must be examined to ensure that it did not have the same effect as a presumption of guilt. Costello J. also referred to the Canadian Charter of Rights and Freedoms, and the fact that rights guaranteed therein were subject to such limits prescribed by law as could be demonstrably justified in a free and democratic society. He also noted the jurisprudence of the Supreme Court of the United States, which imposed a "rational connection" test on such presumptions.
103. Costello J. therefore approached the issue in the case on the basis that if either of the sections under debate infringed the right to the presumption of innocence it would then be necessary to consider the principles that could justify restriction of the right.
104. However, in the event, he did not progress to that point because he found that neither section affected the rights of the accused. Section 3(2) simply made admissible in evidence a statement of belief that would otherwise have been inadmissible. It did not mean that the accused would be convicted in the absence of exculpatory evidence, and it was open to a court to hold that it did not establish guilt beyond reasonable doubt.
105. Again, the provision relating to possession of an incriminating document did not impose an obligation on the accused to give evidence to avoid conviction.
"The section, it seems to me, only shifts an evidential burden on to an accused to whom it is applied…the nature of the incriminating document and the circumstances in which it is possessed may in some cases give rise to a very strong inference of the accused's association with an unlawful organisation whilst in others any such inference might be very slight. If it was intended that the court could not evaluate the evidence and that it ‘must' convict in the absence of exculpatory evidence I think the section would have been differently worded."
106. It is clear that Costello J was using the term "evidential burden" here in the same sense as in the earlier part of his judgment.
107. On appeal, this Court unanimously agreed that the presumption of innocence was implicit in the requirement of Article 38(1) that no person should be tried on any criminal charge save in due course of law. O'Flaherty J. (with whom the other members agreed) considered that the proper approach was to test the statutory provision by reference to the principles established in East Donegal Co-operative Livestock Marts Ltd v Attorney General [1970] I.R. 317 and McDonald v Bord na gCon (no.2) [1965] I.R. 217 - that is, by application of the double construction test. An Act of the Oireachtas is not to be declared invalid where it is possible to construe it in accordance with the Constitution.
108. In the view of O'Flaherty J., the provision relating to incriminating documents meant no more than that possession of such a document amounted to evidence. It was not to be taken as proof and its probative value could be shaken in many ways. The court would not be bound to convict. O'Flaherty J. also noted that the statute made no mention of the burden of proof shifting, or of the presumption of innocence being set aside. He did consider that the "evidentiary burden of proof" would have shifted, but his interpretation of that concept seems clear from his observation that if a person is caught red-handed, the presumption of innocence is not infringed by a judge who points out the strength of the prosecution case. In other words, he saw the "burden" as being the practical consequence that may face an accused who does not give evidence when the prosecution has made out a case to go to the jury. O'Flaherty J. stressed that a court must approach its task in a responsible manner and have proper regard to the paramount place that the presumption of innocence occupies in any criminal trial.
109. At issue in Hardy v Ireland [1994] 2 I.R. 550 were the provisions of s.4 (1) of the Explosive Substances Act 1883. The section provided, in summary, that a person was guilty of an offence if he knowingly had an explosive substance in his possession, or under his control, in circumstances giving rise to a reasonable suspicion that he did not have it for a lawful object, unless he could "show" that he had it for a lawful object. The argument made on behalf of the appellant was that this was inconsistent with the presumption of innocence because it altered the burden of proof in such a way as to make it possible that he could be convicted without his guilt having been proved beyond reasonable doubt.
110. All of the members of this Court disagreed with this analysis. In the majority judgment, Hederman J. held that it was necessary for the prosecution to prove each ingredient of the offence beyond reasonable doubt, and a verdict of guilty could not otherwise be reached. The presumption of innocence did not prevent the drawing of inferences from proven facts.
111. In Convening Authority v Private William Doyle (Unreported, Courts-Martial Appeal Court, 26 January 1996) the Courts-Martial Appeal Court held that the court martial that tried the appellant on a charge of desertion had been correctly advised by the judge advocate that, absence having been proved, there was a presumption of intent not to return and it was for the accused to satisfy the court on the balance of probabilities that he had not intended to remain absent. There is a brief mention in the judgment of the Court (delivered by O'Flaherty J.) that the appellant had argued that this standard breached the presumption of innocence and was inconsistent with the judgments in O'Leary v Attorney General . However, the view of the Court, expressed without further discussion, was that the court martial had applied the law as set out in R. v Carr-Briant [1943] KB 607, and that the latter judgment had been consistently followed in this jurisdiction.
112. It should be noted that there is no discussion in the judgment as to the nature of any potential impact on the presumption of innocence, or of the possibility that the application of this standard might result in a conviction where guilt had not been proved beyond reasonable doubt. It may be that the strength of the prosecution case (the accused had been absent for twelve years, several of which had been spent serving in the Foreign Legion) militated against a more thorough consideration.
113. In Director of Public Prosecutions v. Smyth [2010] 3 IR 688, the Court of Criminal Appeal was concerned with s. 29(2) of the Misuse of Drugs Act 1977, as amended, which provided as follows:
"In any such proceedings in which it is proved that the defendant had in his possession a controlled drug…it shall be a defence to prove that:-
(a) he did not know and had no reasonable grounds for suspecting -
(i) that what he had in his possession was a controlled drug…or
(ii) that he was in possession of a controlled drug."
114. In explaining this provision to the jury, the trial judge had potentially given the impression that the accused would have to prove beyond reasonable doubt that he came within the section.
115. The Court of Criminal Appeal allowed the appeal, holding that the direction was in error. The judgment (delivered by Charleton J.) then goes on to offer assistance as to the correct direction to be given by trial judges as to the reversed burden of proof under the Act in question. While noting that the section was not unique, the Court confined itself to that specific provision and expressly refrained from making any wider declaration as to how any particular reversed burden was to be approached. In particular, the Court referred to the different considerations applicable to the burden of proof relating to the special defence of insanity.
116. The judgment notes the distinction between a legal burden of proof, such as that carried by the prosecution in every case, and the burden of adducing or pointing to sufficient evidence to permit a particular defence to be raised and argued in a particular case.
117. Having noted the references in submissions to recent United Kingdom authorities on reversed burdens, the Court stated that the proper construction of the burden of proof in s.29 derived from the fair trial guarantee enshrined in Article 38.1 of the Constitution. In a key passage Charleton J. said (at p. 696 of the report):
"The fundamental principle of our criminal justice system is that an accused should not be convicted unless it is proven beyond reasonable doubt that the accused committed the offence. The legal presumption that the accused is innocent, until his guilt is proven to that standard, operates to ensure objectivity within the system. It is a matter for the Oireachtas to decide whether on a particular element of an offence an evidential burden of proof should be cast on an accused person. Of itself, this does not infringe the constitutional principle that the accused should be presumed to be innocent until found guilty. Reasons of policy may perhaps require that any reversed element of proof cast on the accused should be discharged as a probability. That should either be stated in the legislation or be a matter of necessary inference therefrom. The construction of a criminal statute requires the court to presume that the core elements of an offence must be proven beyond reasonable doubt; otherwise the accused must be acquitted ."
(Emphasis added.)
118. The judgment then distinguishes cases involving special defences such as insanity, in which a burden may legitimately be imposed on the accused to establish the existence of that defence, and continues:
"Where, however, in relation to an element of the offence itself, as opposed to a defence, a burden is cast upon the accused, the necessary inference that the accused must discharge that burden on the balance of probability is not easily made. The court notes that bearing the burden of proving a defence as a probability could have the effect that in respect of an element of the offence an accused person might raise a doubt as to his guilt, but not establish it as a probability. This might lead to a situation where the charge was not proven as to each element of the offence beyond reasonable doubt, but nonetheless the accused could be convicted. That would not be right. Proof of a guilty mind is integral to proof of a true criminal offence, in distinction to a regulatory offence."
119. The Court of Criminal Appeal accordingly interpreted the section in question as imposing an "evidential burden" only, which would be discharged if the accused proved the existence of a reasonable doubt as to his knowledge or grounds for suspicion.
"This is not a burden merely of adducing evidence. It is a legal burden discharged on the lowest burden of proof, namely that of proving a reasonable doubt."
120. In the context of a prosecution for possession of controlled drugs, the burden on the accused meant that he or she would not be entitled to be acquitted based simply on a submission to the effect that the prosecution had failed to prove knowledge that the substance in his or her possession was a controlled drug. It was necessary to point to, or adduce, evidence giving rise to a doubt as to such knowledge.
121. The Court's view on the proper direction to be given to the jury was as follows:
"In directing the jury on this issue, trial judges should in future, in the view of the court, give the ordinary direction as to the burden and standard of proof and the presumption of innocence. In stating the burden and standard of proof, however, a trial judge should point out that the prosecution are obliged to prove the elements of possession of the substance, and that the substance is a controlled drug, beyond reasonable doubt. A trial judge should then tell the jury that the burden of proof shifts to the defence to prove the existence of a reasonable doubt that the accused did not know and had no reasonable ground for suspecting that what he had in his possession was a controlled drug. It should be clearly stated that this burden cast on the accused is discharged if the defence prove a reasonable doubt, and no more than that, on that issue.
Finally, we should add that there is nothing improper in the prosecution seeking in their case to show evidence whereby that defence, of not knowing or having no reason to believe that what the accused had in their possession was a controlled drug, could be argued by them not to have been made out by the accused."
122. Two observations are relevant at this point. Firstly, it is, I think, clear that Charleton J. was not using the phrase "evidential burden" in the same sense as that intended by Costello J. in O'Leary . He was not simply describing the practicalities confronting an accused at the close of the prosecution case, but was, rather, referring to a legal obligation to adduce or point to evidence that could support the defence case on the particular issue - that is, evidence that could cause the jury to feel a reasonable doubt as to the correctness of the presumption. On this analysis, if the accused does not discharge that obligation, the presumption will stand.
123. Secondly, the analysis set out in the judgment is firmly grounded in the Constitutional guarantee of a fair trial. It is however noteworthy that in R. v Lambert [2002] 2 AC 545 the House of Lords reached the same conclusion in relation to a similar provision that had previously been interpreted as requiring the accused to prove, on the balance of probabilities, that he neither knew nor suspected, nor had reason to suspect, that he was in possession of a controlled drug. The House of Lords held that to read it as imposing more than an evidential burden (in the same sense as that used by Charleton J.) would amount to an infringement of the presumption of innocence and could lead to a conviction even where the jury thought that the defence offered was as likely as not to be true.
124. The Director of Public Prosecutions v P.J. Carey (Contractors) Ltd. [2012] 1 IR 234 concerned a prosecution under the Safety, Health and Welfare at Work Act 1989, in respect of the death of an employee in a collapsed trench. The prosecution sought to rely upon s. 50 of the Act, which provided as follows:
"In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable, or to use the best practicable means to do something, it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement."
125. In discussing this provision, the judgment of the Court of Criminal Appeal (delivered by Hardiman J.) referred to Smyth and endorsed its analysis of the effect of Article 38.1 and of the operation of the burden imposed on the defence. It considered that the same principles applied to s.50 of the Safety, Health and Welfare Act 1989. The result was that the defendant company should have borne an evidential burden only.
126. The Court agreed with the commentary on s.50 in the Statutes Annotated , where it was suggested that it should be construed in the same way as the equivalent section in the United Kingdom - as providing for an evidential burden, that comes into play once the prosecution has first established a prima facie case. It was observed that this commentary supported the analysis in Smyth .
127. The most recent case in which this Court has considered the issue of a reverse onus was The People (Director of Public Prosecutions) v Heffernan [2017] 1 I.R. 82. It arose in relation to the statutory defence of diminished responsibility, introduced by s.6 of the Criminal Law (Insanity) Act 2006. That defence is available to a person accused of murder, where the court finds that the person did the act alleged; that at the time he or she suffered from a mental disorder; and that the disorder was not such as to justify an acquittal by reason of insanity but was such as to diminish substantially his or her responsibility. In such a case, the accused is to be found not guilty of murder but guilty of manslaughter on the ground of diminished responsibility. The Act provided that it was for the defence to "establish" that the accused was not liable to be convicted of murder on this ground. The appellant argued that this should be interpreted as imposing no more than an evidential burden.
128. Two judgments were given, in which Charleton J. and I both came to the view that the section imposed a burden of proof on the balance of probabilities. In reaching this conclusion, the decisive considerations were the use of the word "establish" coupled with a requirement that a "finding" be made; and the close connection between this new statutory defence and the policy considerations attached to the defence of insanity. We considered that the presumption of innocence was not violated thereby. The successful raising of the defence did not require the accused to disprove any essential element of the offence of murder, and indeed was a provision intended to ameliorate the consequences of a proven offence.
129. In Heffernan the court paid particular attention to the considerations raised in Smyth , and endorsed the analysis therein.
Discussion
130. There is no doubt as to the constitutional status of the presumption of innocence, and the fundamental nature of the concomitant principle that it is for the prosecution to prove the guilt of an accused person beyond reasonable doubt. Equally, it is clear that a reverse burden of proof that imposes an obligation on the accused to disprove a core element of the offence, that would otherwise fall to be proven positively by the prosecution, is capable of amounting to a violation of the presumption of innocence and would, therefore, violate the guarantee of a trial in due course of law protected by Article 38.1. The development of this line of constitutional jurisprudence differs from that in the United Kingdom, where, before the enactment of the Human Rights Act 1998, the courts were constrained by the doctrine of parliamentary supremacy to accept that the Woolmington principle did not apply if Parliament had appeared to intend otherwise.
131. In considering whether a particular statutory provision breaches the presumption of innocence it must of course be borne in mind that different provisions have different effects. It may be that a legislative provision is intended to establish a special defence or exception, the burden of proof in relation to which is cast upon an accused person who wishes to avail of it. Heffernan is an example of such a provision, and this Court found that there was no detrimental impact on the presumption of innocence in circumstances where the defence could only arise if the jury accepted that the prosecution had proved the elements of murder in the normal way. However, it is noted in that case that the distinction between a component of the offence and a statutory exception or excuse might sometimes be difficult to discern, and that what matters is the substance rather than the drafting technique.
132. Other legislative measures have had the relatively straightforward purpose of giving evidential status to something that would otherwise be inadmissible, or providing statutory authority for the drawing of an inference that might have been permissible even without the legislation. O'Leary v Attorney General provides examples of these. Even less contentiously, an Act may provide for a presumption that simply offers a convenient method of proving something that would otherwise require oral evidence. Thus, under Road Traffic legislation, a duly completed certificate from the State laboratory may not only be evidence of the truth of its contents, but may give rise to a presumption that proper procedures have been followed in the laboratory.
133. In attempting to discern the impact of a particular measure on the presumption of innocence, the court must consider a number of questions. Has the provision transferred a burden in respect of an essential element of the offence, that would otherwise have fallen to be proved by the prosecution beyond reasonable doubt? Does it require the accused to prove that the element in question does not exist? If so, it is an inroad into the presumption of innocence, since the accused person may be convicted if he or she cannot positively prove that the element is absent.
134. In analysing the effect of a provision, it is therefore necessary to start with the definition of the offence under consideration - the elements that must be proved before an accused person can be convicted. Having regard to the indictment in the case under consideration, it was necessary to prove a) that the accused had the status of an "agent" within the meaning of the Act; b) that he received money from Mr. Ryan; and c) that he accepted that money as an inducement or reward to do something in relation to his office or position.If the s.4 presumption was applicable, it was also necessary to establish what function was in question, in order to prove that Mr. Ryan had an interest in the discharge of the relevant function.
135. If the statutory presumption did not exist, or did not apply, then it would follow that the prosecution must prove each of these elements beyond reasonable doubt. If it proved the status of the accused and receipt of the money, but could not adduce any evidence bearing upon the motivation for acceptance of the money, then the accused would be entitled to a direction. The first effect of the burden of proof cast by the Act upon the accused at this point (assuming that the presumption does indeed apply) covers that gap.
136. It means that an accused could not seek a direction where evidence as to corrupt motivation was absent, and could not seek to persuade the jury that he should be acquitted because there was no evidence of such motivation, or because they should not believe such evidence on motivation as might have been adduced by the prosecution. He would be deemed to have acted corruptly despite the lack of evidence of motivation, or despite attacks on credibility of the evidence of motivation. The prosecution would have proved its case on that issue. The question, then, is the extent of the burden.
137. If an accused has to prove innocent receipt on the balance of probabilities, it would mean that he or she would have to persuade the jury that, at least, it was more likely than not that he or she did not receive the money corruptly. Since corrupt receipt is an essential element of the offence, it would mean that the accused would have to disprove that element - he or she would have to affirmatively prove innocence. That is a clear inroad on the presumption of innocence.
138. In a given case, a jury could potentially find that some evidence in the case left them unconvinced on guilt, but could also feel that they did not consider the accused's version to be more likely to be true than that of the prosecution. This is the situation discussed by Charleton J. in Smyth - it creates the possibility that the jury might feel compelled to convict a person despite thinking that the defence account was as likely as not to be true, and despite therefore feeling doubtful about guilt.
139. This differs significantly from the situation discussed in Heffernan . The onus cast upon the accused in relation to diminished responsibility did not require him to disprove an essential element in the case. Rather, it was a burden to be discharged if the accused was to get the benefit of a special defence that was available only where the elements of murder had already been proved by the prosecution.
140. The Court of Appeal considered that s.4 was clear, and that to read it as imposing an evidential burden only, as in Smyth , would render it nugatory. It seems to me that this view arises from a misconception about the judgment in Smyth caused by the fact that Costello J. and Charleton J. used the term "evidential burden" with quite different meanings. As already noted, it is clear that Costello J. was referring only to the practicalities of the defence position in a case where the prosecution had made out a prima facie case. In contrast, Charleton J. was referring to a burden (in the sense of a legal requirement or obligation) to adduce evidence. This evidential burden arose in the context of a legal burden to show the existence of a reasonable doubt.
141. The Smyth burden, if applied to the measure under consideration here, would require the accused to demonstrate that there is, arising from some piece or pieces of evidence adduced in the case, a reasonable doubt as to whether the presumption of corruption is correct. If he succeeds in persuading the jury that such a doubt arises, the jury must then ask itself whether the prosecution case has dispelled it. The burden is similar to that applicable in any case where the accused wishes the jury to consider a possible fact-based defence, as opposed to simply arguing that the prosecution has not proved its case. That concept was explained in the judgment of Walsh J. in The People (at the Suit of the Attorney General) v Quinn [1965] I.R. 366, cited above.
142. In a normal case, the burden is discharged simply by adducing sufficient evidence to permit the judge to leave the issue to the jury - the accused has no further obligation and it remains the task of the prosecution to satisfy the jury beyond reasonable doubt that the defence should not succeed. In the case of the burden created by a presumption, the accused will not rebut the presumption unless the evidence relied upon by the defence is, in itself, sufficient to create doubt about the correctness of the presumption. That is what is meant by "proving" that a doubt exists. In a case such as this, therefore, the evidence would have to point to the possibility of an innocent explanation for receipt of the benefit. However, the accused would not have to "prove" that innocent explanation.
143. Because the members of the Court of Appeal believed that Charleton J. was simply applying the same meaning to the term "evidential burden" as Costello J. in O'Leary , they felt that the Smyth analysis would fail to fulfil the objective of the section and would render it nugatory. They therefore considered it necessary to read the legislation as imposing the standard of proof beyond reasonable doubt. That led them, in my view, into error. Further, I do not accept the Court's reasoning as to the conformity of their interpretation with the Constitution. The judgment was delivered before the judgments of this Court in Heffernan , which expressly approved the view in Smyth that the imposition of a burden that left open the possibility of conviction where there was doubt as to guilt would be a breach of Article 38.
144. I accept, of course, that corruption is a serious and pernicious offence. But all indictable crimes must be regarded as serious. The particular difficulty with corruption cases is proof of intent - it is unlikely in many cases that direct evidence will be available. I therefore accept that a presumption in relation to intent is not per se unconstitutional. The question is whether rebuttal of the presumption requires the accused to prove innocence and requires or permits conviction where that issue may be in doubt. I consider that the interpretation of s.4 adopted in this case by the trial court and the Court of Appeal was contrary to authority and could lead to violations of the right to be presumed innocent. However, applying the double construction test and the analysis in Smyth creates no such difficulty.
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.
146. I do not believe that the decision of this Court in DPP v Cronin (No. 2) [2006] 4 IR 329 can operate to bar the appellant from raising this issue, or preclude this Court from considering it, despite the fact that it was not argued in the trial.
147. There are a number of factors specific to the case that, I think, bring into play the reference in Cronin to cases where an injustice has occurred. The first is that it is quite apparent that counsel for the prosecution in the case was unaware of Smyth - that was conceded in the Court of Appeal. It was therefore never brought to the attention of the trial judge that a relevant judgment of the Court of Criminal Appeal gave guidance on the operation of presumptions of this nature. It is true that no inquiry as to why the argument was not made seems to have been made of the legal representatives who acted for the defence. However, given what happened with the application to extend time for the appeal, that is scarcely surprising. Furthermore, the solicitor who represented the appellant in the trial is deceased.
148. No ground has been offered by the prosecution in this appeal for thinking that there was any conceivable tactical advantage to be gained from not objecting to the application or interpretation of the presumption, and I do not see any. The defence was based on the assertion of a loan. The only "tactical" decision involved that I can see was whether or not the defendant would give evidence. This is not a case, as Cronin was, where the defence made a choice between alternative lines of defence in the trial and subsequently sought to argue in the appeal that the trial judge had erred in not directing the jury about the line not taken. There is nothing in the argument now raised in this appeal that is any way incompatible with the defence as run in the trial. Counsel would have had nothing to lose, and something significant to gain, in raising it. This is particularly so in a case where the explanation given by the accused was subject to severe criticism from the prosecution.
149. The most significant aspect of what has occurred here, in my view, is that the appellant was subjected to a trial process that breached his right to be presumed innocent. This was done, it would appear, as the result of a mutual legal error on the part of the defence, the prosecution and the trial judge, leading to a failure to appreciate and apply a fundamental principle of constitutional law. The requirement, discussed in Cronin , for evidence as to whether what had happened in the trial was an error or oversight normally means an explanation for the conduct of the trial by the defence. However, it is not to be forgotten that the trial judge is the person ultimately responsible for ensuring that the accused receives a fair trial, and that the jury is charged in accordance with constitutional principles. Prosecution counsel also have duties in this regard, and are obliged to assist the judge on such matters. The obligation of defence counsel to try to ensure that a client is not subjected to an unlawful process is not the only relevant feature.
150. In the circumstances of this case I do not believe that the Court could conclude that the appellant's trial was conducted in due course of law. In my view DPP v Cronin does not require or permit the Court to overlook a fundamental error of law.
151. The prosecution submits that the strength of the evidence was such that no real injustice could be said to have occurred. This argument has found favour with MacMenamin J., who considers that the prosecution case was overwhelming and that the defence evidence as to the alleged loan was discredited to the extent that no jury could reasonably have reached the conclusion that the appellant was not guilty. In my view, an appellate court must be extremely cautious in taking such an approach. Firstly, in cases of this particular nature the verdict of the jury turns on their assessment of the state of mind of the accused, having regard to all of the evidence in the case. Appellate courts may not be well placed to assess the impact of an individual's testimony in this regard. Secondly, such an approach could be seen as a diminution of the status in general of the constitutional rights to a presumption of innocence and to a trial in accordance with law. To dismiss an appeal on this basis, where the jury has been given fundamentally wrong instructions in relation to their duty, would be appropriate only in the clearest of cases. On the facts of this case, I do not see that it is appropriate for this Court to assume that a properly instructed jury might not have found that there was a reasonable doubt.
152. Given my conclusions on this aspect (which affects all of the counts on the indictment), it is unnecessary to give any definitive view on the second issue (which affected only three). However, I would observe that the meaning of the phrase "in relation to the office or position" of an accused person becomes clearer when the correct scope of the s. 4 presumption is identified. As I said earlier, the intention of the legislature appears to have been the creation of an offence with a broad range of applicability. That is understandable, given the pernicious effect of corruption in the public administration. The argument that a councillor has access to elected members, officials and particular procedures because of his office or position is a strong one. However, the presumption is, I think, reserved for a narrower range of activity.
153. I would therefore allow the appeal.
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 IR 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".
I do not disagree with this as a statement of law applicable to this type of case, which allows for the issues to be put squarely before the jury without placing the prosecution in a situation of having to negative a defence which it would be almost impossible to negative. My concern, rather, is with regard to the application of these principles on the facts of this case. The inexorable inference from the verdict is that the jury utterly rejected Mr. Forsey's testimony. Should the Court now permit the points as to reverse burden and failure to refer the judge to DPP v. Smyth [2010] IECCA 34; [2010] I.R. 688 to be raised and relied upon, when they were not at the trial? Should this conviction now be quashed?
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."
36. The judgments of the Court in Cronin are, therefore, to be read having regard to the fundamental pre-condition regarding a "real injustice". But the nature of the defence at the trial, taken in conjunction with the statements to the gardaí, almost made it inevitable that, in order to answer the prosecution case, Mr. Forsey would himself have to give evidence. The defence case that the €80,000 was a loan was only sustainable if the jury accepted that these payments were indeed a loan and not a bribe. To that extent, the issue for the jury was a stark and simple one. Mr. Forsey was indeed entitled to benefit from any reasonable doubt the jury entertained. But, in a sense, in this case, either his defence was accepted by the jury, or it was not. This was not, in my view, a case where the jury could have had a doubt as to guilt. Once the loan defence was discredited, as it was, no jury could have reasonably reached the conclusion that Mr. Forsey was not guilty. I agree that, in general, the very weakness of the defence case is a factor which should require the jury to be charged fully on the burden of proof. Yet, accepting, as I do, that the charge was deficient, I find it impossible to envisage how, even if the jury had been fully charged in accordance with the principles now set out, they could conceivably have reached any verdict other than guilty on what was overwhelming prosecution evidence, and an entirely non-credible defence testimony.
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.
