THE SUPREME COURT
THE PEOPLE (AT THE SUIT OF THE
DIRECTOR OF PUBLIC PROSECUTIONS)
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court grants an order allowing an appeal to this Court under Article 34.5.3 of the Constitution from the judgment of the Court of Appeal delivered on the 29th July, 2016.
1. This determination concerns a decision of the Court of Appeal made on the 29th July, 2016 dismissing an appeal brought by Fred Forsey (the applicant) against his conviction by a jury on the 18th May, 2012 on six counts of corruption. The charges were brought under the Prevention of Corruption Act, 1906 to 2001. On the 27th June, 2012 the applicant was sentenced to six years imprisonment, on each count to run concurrently but with the final two years suspended in respect of each count.
2. The case against the applicant was that between late August, 2006 and the end of 2006, he, as an elected member of Dungarvan Urban District Council in County Waterford, corruptly received a series of three payments, totalling €80,000, from one Michael Ryan, a person interested in planning applications for development of land in Ballygagin, County Waterford. The lands were situated in the functional area of Waterford County Council so it was that council which had responsibility for the application. Dungarvan U.D.C.’s administrative area was close by, but it had no role in relation to the planning application.
3. The criminal conduct alleged was that the applicant behaved corruptly in trying to persuade officials, councillors and members of Waterford County Council to grant permission for the proposed development and, when that was refused, to alter the zoning of the land in question in the Waterford County Development Plan. The prosecution also alleged that the applicant had sought to get the council of which he was a member, Dungarvan Urban District Council, to bring the relevant lands into its control, a process which would have required consent both from Waterford County Council, but first from Dungarvan Urban District Council. The applicant was indicted on two charges each in respect of the three payments which he received from Mr. Ryan, reflecting his endeavours, first with Waterford County Council, and then with Dungarvan Urban District Council.
4. The charges were laid under s.1 of the Prevention of Corruption Act, 1906, as inserted by s.2 of the 2001 Act. It provides that an agent, or any other person, who corruptly accepts any gift, consideration or advantage as an inducement to doing any act in relation to his office or position, shall be guilty of an offence. The Court of Appeal judgment was to the effect that the applicant was an agent, within the meaning of the 2001 Act, because he was the holder of a public office, within the meaning of the Public Bodies Corrupt Practices Act, 1889.
5. A further provision of the 2001 Act was central to the appeal. Section 4 provided for a presumption of corruption in proceedings against a holder of a public office, as above defined, when it is proved that he received any gift, consideration or advantage from someone having an interest in the discharge by the office holder of specified functions. The benefit is deemed to have been received – and given - as an inducement or reward “unless the contrary is proved”. This section applies to any functions of a member of a body that is part of the public administration of the State under the Planning & Development Act, 2000 (s.4(2)).
6. At the trial, the prosecution relied on the presumption, contending that it imposed on the accused, that is the applicant, 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 the applicant; and that the applicant was an agent within the meaning of the Acts.
7. The applicant, in his application to this Court, makes the point as to the inferences which should be drawn from the following circumstances, namely, first, that all three of the payments of €60,000, €10,000 and €10,000 were made either by way of bank transfer, or bank draft, and, as such, there was a record thereof; and that there was a formal loan agreement in relation to the monies paid, the point in time at which this document came into existence. The prosecution’s contention was that it was a document created to obscure the nature of the transaction, whereas the applicant contended that the monies were advanced by way of a loan, and the document reflected the intention of the parties to the transaction.
8. The appellant’s trial and conviction concluded before Waterford Circuit Court on the 18th May, 2012. In July, 2013, the property developer, Mr. Ryan, who had advanced the monies to the appellant, faced trial in respect of similar charges, contrary to s.1 of the 1906 Act. He was tried separately to the applicant, due to the presumption of corruption which applied in the applicant’s case, but not to Mr. Ryan who was not a public official. Mr. Ryan defended the case on the basis that the monies advanced had been a loan, and made reference to documentation concerning same. He was acquitted by jury verdict.
The Appeal to the Court of Appeal
9. Before the Court of Appeal, counsel for the applicant argued that it must be a necessary and fundamental proof in every case to show that the person’s office or position actually encompassed the act complained of. It was also submitted that a striking feature of the trial had been the divergent views expressed by witnesses as to what the scope of the office or position of a Dungarvan Town Councillor actually involved. A second ground of appeal involved the contention that the presumption of corruption contained in s.4 of the Act was to be regarded as creating an evidential burden, that is, requiring the accused only to show reasonable doubt on the issue, as opposed to a legal burden, that is, requiring the accused to prove the matter on the balance of probabilities. The applicant contended that, to require the accused in a criminal trial to meet the civil standard of proof in respect of the factual ingredients of an offence, was inconsistent with the presumption of innocence. Instead, it was argued that the correct interpretation of a reverse burden provision, such as s.4 of the 2001 Act, was one where the accused was merely required to raise a reasonable doubt in respect of the factual presumption against him. The Court would point out that a similar issue was the subject matter of a recent judgment of this Court (The People at the suit of the Director of Public Prosecutions v. Joseph Heffernan, delivered on the 7th day of February, 2017  IESC 5).
10. The applicant argues that the question of the scope of a person’s office or position is fundamental to any consideration of the correct interpretation of the offence of corruption, and also to the concept thereof. It is submitted that the interpretation adopted by the Court of Appeal appears to considerably broaden the concept of corruption beyond the actual scope of a person’s office, or position, as defined by law or contract, and to extend it into what is described as a “diffuse and ephemeral” realm, of inference, that is, of “pull”, or status. It is suggested that it leads to the conclusion that two officer holders may be considered quite differently in respect of identical gifts made to them, depending on what is perceived by a jury to be the extent of their influence.
11. As to the second point, it is said that the case presents an opportunity for the Court to consider the issues arising in relation to the presumption of corruption. It is said that the reverse burden, provided for under s.4 of the Act of 2001, operates only in respect of a person to whom a gift is alleged to have been made, and does not operate in respect of the person making the gift.
12. In response, it is submitted on behalf of the Director, that the prosecution case was overwhelming and the evidence was such as enabled the jury to comfortably come to a unanimous view, beyond a reasonable doubt, that the applicant had committed each of the offences. It is said that the defence suggestion, that the monies paid to the applicant/accused were a loan, lacked all credibility. It is said that the direction given by the trial judge on the statutory presumption was, at no point, challenged or disputed by the defence during the course of the trial. It did not have the profile or impact which the applicant subsequently contended for before the Court of Appeal. It is also said that the evidence in relation to the applicant’s activities in support of the planning applications was extensive, including the evidence of Jenny Forsey, the applicant’s estranged wife, to the effect that he (the applicant) had received the monies from Mr. Ryan in order to advance the cause of obtaining planning permission and rezoning for the Ballygagin lands. It is said that the evidence adduced from Jenny Forsey would not have been capable of being adduced in the trial against Michael Ryan, because it concerned conversations which took place between the husband and the wife, in the absence of Mr. Ryan, wherein it is said that the applicant accepted that he had received the monies in order to forward the project. It is said that the questions engaged are not matters of general public importance, nor is it in the interests of justice that there should be an appeal to the Supreme Court, and that the decision of the trial judge on the law, and the Court of Appeal, were arrived at in accordance with the facts of this particular case, and do not have a general application, such as would bring it within the constitutional criteria. The respondent’s case is that, after the applicant separated from his wife, she threatened to go to the gardai with the information that he had received the monies in question. There was also evidence that, at the same time, the applicant made intensive efforts to contact Mr. Michael Ryan on his telephone. All these events were said to have taken place in or around the 22nd December, 2006.
13. It is the view of the Court that the two issues which are raised, that is, the presumption contained in s.4 of the Prevention of Corruption (Amendment) Act, 2001, and the question of the scope of a person’s office or position, in the context of a charge such as the present, both transcend the particular facts of this case. Both issues concern questions which have a more general application, and which, in the view of the Court, require clarification, and final determination. The Court also observes that the respondent’s case includes the point that there was no requisition at the trial. (cf. DPP v. Cronin (No. 2)  4 I.R. 329). The Court would again draw attention to the recent decision of DPP v. Heffernan, to which reference has been made earlier. The question of the presumption, considered in Heffernan, concerning whether the onus of proof in diminished responsibility, is applicable in the same way to a charge of corruption, is a matter which, in the view of the Court, it is desirable to have determined. Accordingly, the Court will certify the following three points for consideration by this Court:
1. Whether, in light of the facts, including that there was no requisition, the applicant is now entitled to revisit the points sought to be argued?
2. What is the scope of a person’s office or position in the consideration of the correct interpretation of the offence of corruption?
3. Are the presumptions contained in s.4 of the Act legal, as opposed to evidential burdens.
14. The Court will therefore grant the application.
And it is hereby so ordered accordingly.