Title:DPP -v- Fahy
COURT OF CRIMINAL APPEAL
Judgment was delivered on November 28th, 2007, by Mr Justice Finnegan, sitting with Mr Justice Feeney and Ms Justice Irvine.
JUDGMENT
The conviction of a county councillor on seven theft and fraud offences was quashed, and a retrial ordered by the Court of Criminal Appeal on the grounds that evidence not in the book of evidence was presented to the jury and that this was prejudicial.
BACKGROUND
Michael Fahy is a Galway county councillor who was convicted of seven offences of fraud and larceny in the Galway Circuit Court. He was sentenced to 12 months' imprisonment and fined €25,000.
His defence team appealed to the Court of Criminal Appeal on the grounds that evidence had been led that was not contained in the book of evidence, or statement of further evidence; that this evidence was not probative and was prejudicial; and that a document requested was not furnished to the defence, contrary to the Criminal Justice (Miscellaneous Provisions) Act.
The issue concerned evidence given by John Morgan, director of services with Galway County Council. A statement from him in the book of evidence refers to a meeting he had with Councillor Fahy, and notes he made of it. However, these notes were not in the book of evidence, though a typed copy of the notes was later furnished, following discovery.
Councillor Fahy's junior counsel asked for the notes, but this request had not been complied with by the time Mr Morgan came to give evidence. In his evidence he said he had written up the notes a few days after the meeting, which meant that these were not contemporaneous notes of the meeting.
In his evidence at the trial Mr Morgan made reference to a Mr Byrne, a fencer, and questions relating to the price he had charged for fencing. In the course of this he said Councillor Fahy had made disparaging references to Mr Byrne, and offered to pay €10,000 himself, representing the amount allegedly overcharged, adding "It is nothing really. It's only a small amount of money. Sure, I have been offered €3.8 million for the field in Ardrahan."
Councillor Fahy's counsel sought to have the jury discharged on the basis that he had no notice of this evidence, it was prejudicial and of no probative value. The judge refused his application and the trial continued.
DECISION
Mr Justice Finnegan said it had been decided several times by the courts that all evidence must be relevant. A jury can be warned about irrelevant or prejudicial evidence, but this carries the danger of further emphasising it.
A special feature of this case is the non-compliance with the Criminal Justice (Miscellaneous Provisions) Act, by Mr Morgan's original notes not being furnished to the defence. Had they been, the defence could have objected to his evidence on the grounds of irrelevance.
The disparaging reference made to Mr Byrne was corroborative of prosecution submissions that Councillor Fahy sought to blame other people. The reference to the €3.8 million offer for a field was also prejudicial, particularly "in the current climate" as it made no reference to the fact the field was inherited.
"The jury might well have inferred that this wealth apparently so disproportionate to his income and station in life was not acquired honestly. Against the background of allegations of improper conduct against county councillors before tribunals such an inference from wealth without explanation might well be drawn.
"In the circumstances of this case the court is satisfied that the introduction of inadmissable evidence in the manner in which it occurred created a real and substantial risk of an unfair trial."
Accordingly the court quashed the conviction and ordered a retrial.
The full text of this judgment is available on www.courts.ie
Solicitors: Chief Prosecution Solicitor (For the DPP) Charles Colman Sherry, Gort, Galway (for Mr Fahy))