The Court of Appeal dismissed Fred Forsey’s appeal against six jury convictions for corruption, upholding the trial court’s directions on the statutory presumption of corruption and rejecting his argument that some of his conduct fell outside his council role.
Forsey was convicted at Waterford Circuit Criminal Court on 18 May 2012 and sentenced on 27 June 2012 to six years’ imprisonment on each count, to run concurrently, with the final two years suspended on each. By the appeal hearing, he had been released after serving the sentence less remission.
The prosecution alleged that, between late August and the end of 2006, Forsey received three payments totalling €80,000 from developer Michael Ryan. Ryan had an interest in a planning application for land at Ballygagin, in Waterford County Council’s area. Prosecutors said Forsey used his position as a Dungarvan Urban District Council member to promote the development to Waterford officials and councillors, and later sought to change the land’s zoning. The indictment also concerned efforts to bring the land under Dungarvan UDC’s control. Forsey’s defence was that the money was a loan or series of loans under a written agreement.
The appeal focused chiefly on the legal effect of section 4 of the Prevention of Corruption (Amendment) Act 2001. It provides that, once specified facts are proved, a benefit is deemed to have been given and received corruptly “unless the contrary is proved.” The trial judge told the jury the defence had to show on the balance of probabilities that the payments were not corrupt. Forsey argued that the law required only an evidential burden: raising a reasonable doubt.
The Court of Appeal held that the section’s wording imposed a legal burden on the accused to disprove corruption once the statutory elements had been proved beyond reasonable doubt. It ruled that the provision was not unconstitutional, contrary to the European Convention on Human Rights, or contrary to common law. The court distinguished the statutory provision considered in DPP v Smyth, which it said did not impose the same legal burden.
Forsey also argued that his role on Dungarvan UDC gave him no function in planning decisions made by neighbouring Waterford County Council. The court said the prosecution evidence showed that his elected status gave him access and standing to approach Waterford councillors and officials. The law required a sufficient connection between the alleged conduct and his office, it said, and that connection was present. The court rejected this ground as well.
The court noted that the appeal arguments had not been raised at trial, but did not need to decide whether they could be admitted because it rejected them on their merits. It also treated the prosecution’s request to apply the proviso and affirm the convictions despite any error as moot. The appeal was dismissed.