Supreme Court Justice John MacMenamin would have dismissed Frederick Forsey’s appeal against convictions for corrupt conduct linked to efforts to secure planning changes affecting land near Dungarvan, County Waterford. He dissented from the outcome proposed by the majority, saying the convictions should not be quashed.
The judgment, dated 8 November 2018, concerns charges under the Prevention of Corruption Acts 1906 to 2001. Forsey, then a Dungarvan Town Council member, was accused of using his influence to advance the interests of landowner Michael Ryan. The prosecution alleged two connected routes: seeking rezoning by Waterford County Council, or extending Dungarvan’s boundaries to include Ryan’s land.
MacMenamin said it was proved and undisputed at trial that Forsey received €80,000 from Ryan in three payments. Forsey’s defence was that the money was a loan, that he intended to repay it, and that he supported the project for community reasons. He was convicted and sentenced to six years’ imprisonment.
The appeal raised concerns about the trial judge’s directions to the jury on the burden of proof and the presumption of corrupt intent. MacMenamin agreed with the applicable legal principles set out in Justice O’Malley’s judgment, including what the jury should have been told. But he said those legal points had not been raised at trial and considered that the appeal did not meet the requirements set by the Supreme Court in DPP v Cronin for raising such points later. In his view, there was no demonstrated fundamental injustice and no adequate explanation for the failure to raise the arguments at trial.
MacMenamin considered the prosecution evidence overwhelming and the loan defence not credible. He concluded that, even with a full direction on the burden of proof, the jury could not reasonably have reached a verdict other than guilty. He therefore would have dismissed the appeal.
This is MacMenamin’s dissenting judgment, not a statement of the majority’s reasoning or the Court’s final order. The extract says the majority proposed quashing the conviction but does not provide the final order or explain its terms.