Judgment: 2007-11-28 · Court archive

Court orders retrial after inadmissible evidence created unfair trial risk

The Court of Criminal Appeal allowed Michael Fahy’s appeal after evidence drawn from undisclosed notes was heard by the jury.

Court of Criminal Appeal · 66 of 07

Who, what, where, when and why

Who
  • Michael Fahy (Applicant)
  • John Morgan
What

The Court of Criminal Appeal allowed Michael Fahy’s appeal after evidence drawn from undisclosed notes was heard by the jury.

Where

Places mentioned in the report

  • Galway County Council
  • Galway
When

Judgment:

Other dates in the report
  • 27 February 2007

    The appeal focused on evidence from notes made by John Morgan, then Galway County Council’s Director of Services, about a meeting with Fahy. The notes were not on the original exhibit list. Although a typed copy had been included in the Garda file disclosed to the defence in May 2006, they were added to a further-exhibits list on the first morning of trial, 27 February 2007. The defence immediately requested copies, but had not received them when Morgan gave evidence on 1 March.

Why

Reasons reported in the judgment

The Court of Criminal Appeal has allowed Michael Fahy’s appeal and directed a retrial, finding that inadmissible evidence introduced at his trial created a real and substantial risk of an unfair trial.

The Court of Criminal Appeal has allowed Michael Fahy’s appeal and directed a retrial, finding that inadmissible evidence introduced at his trial created a real and substantial risk of an unfair trial.

Fahy had been convicted on seven counts, including obtaining by false pretences, attempted theft, deception and false accounting. He received concurrent 12-month prison sentences and was fined €25,000 on each of the first three counts.

The appeal focused on evidence from notes made by John Morgan, then Galway County Council’s Director of Services, about a meeting with Fahy. The notes were not on the original exhibit list. Although a typed copy had been included in the Garda file disclosed to the defence in May 2006, they were added to a further-exhibits list on the first morning of trial, 27 February 2007. The defence immediately requested copies, but had not received them when Morgan gave evidence on 1 March.

Morgan was asked about the notes during his evidence. The prosecution elicited details that were not in his witness statement, including remarks attributed to Fahy about a fencing contractor and an offer to pay €10,000 himself. The prosecution accepted on appeal that the notes were not admissible as either a contemporaneous record or under the Criminal Evidence Act 1992, and that the passages it elicited were not probative.

Fahy’s counsel applied to have the jury discharged, arguing that the evidence was irrelevant and prejudicial and that the defence had no notice of its contents. The trial judge refused the application but allowed counsel to renew it at the end of the prosecution case. The appeal court said the prosecution’s failure to comply with disclosure and inspection requirements had prevented the defence from objecting before the evidence was heard.

The court considered that the passages risked reinforcing the prosecution’s argument that Fahy had blamed others, and that evidence of a supposed €3.8 million offer for a field could prompt an unfair inference about his wealth. It concluded that a jury direction or cross-examination might have drawn further attention to the material. In the circumstances, the jury should have been discharged.

The court granted leave to appeal, treated the hearing as the appeal, allowed it and ordered a retrial. The judgment does not determine the charges at any retrial.

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