Galway County Councillor Michael "Stroke" Fahy has won his appeal against his conviction for fraud and attempted theft and has been freed on bail pending a retrial.
Ordering a retrial yesterday, the Court of Criminal Appeal said it was doing so because it was in the public interest that the conduct of public representatives should be subject to examination.
The three-judge Court of Criminal Appeal, with Mr Justice Joseph Finnegan presiding and sitting with Mr Justice Kevin Feeney and Ms Justice Mary Irvine, said the court was setting aside the conviction because the way in which inadmissible evidence was introduced at the trial had created "a real and substantial risk of an unfair trial".
The case is now expected to be returned to Galway Circuit Criminal Court where it will be listed for retrial. After the verdict was delivered, supporters of Cllr Fahy expressed delight.
Fianna Fáil Senator Terry Leyden said he was happy with the outcome. He said Cllr Fahy would be able to return home to his elderly mother and he looked forward to seeing Cllr Fahy resume his role as a public representative.
Cllr Fahy (56), Ardrahan, Co Galway, was jailed last March for a total of 12 months and fined €75,000 after a jury found him guilty of seven charges under the Larceny and Theft and Fraud Offences Acts.
The charges related to more than a mile (1.6km) of fencing erected on Cllr Fahy's land following a Community Involvement Scheme operated by Galway County Council.
Cllr Fahy started his prison sentence at the end of April and appealed his conviction on the grounds that certain prosecution evidence should not have been put before the jury during his five-day trial.
Counsel for Cllr Fahy, Martin Giblin, claimed that a memo made of a conversation between Cllr Fahy and John Morgan, a senior executive with Galway County Council who gave evidence during the trial for the prosecution, was prejudicial to Cllr Fahy and contrary to criminal procedures legislation. The memo was not a contemporaneous note and was among documents furnished to the defence in advance of the trial. However, the defence was told it would not be part of the prosecution case and it was not listed as an exhibit in the book of evidence until the morning of the trial itself.
The defence said they were taken by surprise and the jury should have been discharged.
Yesterday, the court ruled that the trial judge, Judge Raymond Groarke, had erred by allowing the trial to continue in the circumstances. The appeal court said the memo evidence was prejudicial and the judge "ought to have discharged the jury".
The court said that what had happened was as a result of "non-compliance by the prosecution" with the requirements of criminal procedures legislation. Had a copy of the memo been exhibited in a timely manner as required by law, it would have been possible for the defence to object to its inclusion, the court said.
In the current climate of "allegations of improper conduct" against politicians before tribunals, the jury could have drawn inferences from the memo prejudicial to Cllr Fahy, the court said.
Mr Giblin queried the decision to order a retrial and said there should be no retrial given Cllr's Fahy's family circumstances, where he cares for his mother who is approaching 100 and the fact that a "substantial" part of the sentence had already been served.
However, Mr Justice Finnegan said a retrial was being ordered because it was "in the public interest" that the conduct of public representatives should be subject to examination.
Cllr Fahy was first elected as a Fianna Fáil member of Galway County Council in 1979, but he resigned from the party in 2004.