COURT OF CRIMINAL APPEAL
66 of 07
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
Judgment of the Court delivered on the 28th day of November 2007 by Finnegan J.
The applicant was convicted of the following offences:-
He was sentenced to twelve months imprisonment on each count, the sentences to run concurrently. In respect of the matters listed at 1, 2 and 3 he was in each case fined €25,000.
1. Obtaining by false pretences contrary to section 2 of the Larceny Act 1916 as amended by the Larceny Act 1990.
2. Attempted theft contrary to section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and common law.
3. Attempted theft contrary to section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and common law.
4. Attempting to make a gain or cause a loss by deception contrary to section 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and common law.
5. Attempting to make a gain or cause a loss by deception contrary to section 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and common law.
6. False accounting by production or making use of a document contrary to section 10(1)(c) of the Criminal Justice (Theft and Fraud Offences) Act 2001.
7. False accounting by production or making use of a document contrary to section 10(1)(c) of the Criminal Justice (Theft and Fraud Offences) Act 2001.
The notice of appeal sets out 31 separate grounds. However the grounds may be summarised as follows:
The Criminal Justice (Miscellaneous Provisions) Act 1967 as amended insofar as is relevant provides as follows:-
1. The prosecution in breach of the Criminal Justice (Miscellaneous Provisions) Act 1967, sections 4B, 4C and 4D as inserted by the Criminal Justice Act 1999, section 9 led evidence not contained in the book of evidence or statement of any further evidence.
2. That the evidence so led was not probative and was prejudicial to the applicant.
3. The applicant notwithstanding a request was not given sight of a document contained in a list of further exhibits having requested sight of the same.
The Book of Evidence contained a statement of the evidence of John Morgan who held the position of Director of Services with Galway County Council. In his statement of evidence he deals briefly with an interview with the applicant on the 10th March 2004. His statement contains the following passage:-
“4B(1) Where the prosecutor consents to the accused being sent forward for trial, the prosecutor shall, within forty two days after the accused first appears in the District Court charged with the indictable offence or within any extension of that period granted under subsection 3, cause the following documents to be served on the accused or his solicitor, if any:
(c) a list of the witnesses the prosecutor proposes to call at the trial;
(d) a statement of the evidence that is expected to be given by each of them;
(e) a copy of any document containing information which it is proposed to give in evidence by virtue of Part II of the Criminal Evidence Act 1992 and
(g) a list of the exhibits (if any).
4C(1) At any time after service of the documents mentioned in section 4B(1) the prosecutor shall cause the following documents to be served on the accused or his solicitor, if any:
4D The accused shall have the right to inspect all exhibits mentioned in the list of exhibits served on the accused or his solicitor under section 4B or 4C.”
The notes to which he referred were not included in the list of exhibits contained in the Book of Evidence. However by way of disclosure the entire Garda file was furnished to the applicant’s solicitors on the 3rd day of May 2006 and contained in the same was a typed copy of the notes to which he referred.
“Again at the conclusion of the meeting I made notes of the interview that I had with Councillor Fahy which I dated 20th March 2004. On today’s date 20.7.04 I have handed over to D/Garda Glynn a certified copy of these notes marked “J.M.2” I will produce and identify the original notes in court when and if required to do so”.
The trial commenced on the 27th February 2007. On that morning a list of additional exhibits was served which contained an item described as
Immediately after service junior counsel for the applicant asked for copies of all documents contained in that list but specifically asked for the notes of the meeting. By the time Mr Morgan came to give evidence on the 1st March 2007 this request had not been complied with. Very early in Mr Morgan’ evidence he was asked by counsel for the prosecution and replied as follows:-
The effect of this, as is accepted before this court by counsel for the respondent, is that the notes were not admissible in evidence either as a contemporaneous note or under Part II of the Criminal Evidence Act 1992. Nonetheless counsel for the prosecution continued to elicit from the witness information contained in the notes but not contained in the statement of that witnesses’ evidence included in the Book of Evidence. Relevant to the applicant’s submission are the following questions and answers:-
“Notes of meeting between John Morgan and the accused Michael Fahy, prepared by John Morgan and referred to at page 36 of the Book of Evidence.”
“Q. Did he make any comment about Mr Byrne, the fencer?
A. Councillor Fahy indicated that Mr Byrne had tried to do him. That he was only a crook, I think was the words he used, that he had given him a price when he asked him for a price for doing the work, he had given him a price of €12,000, but that subsequently Mr Fahy had spoken to somebody who knew something about fencing and told him that it was only worth €2,500.
At that point counsel for the applicant intervened on the basis that none of this was contained in the Book of Evidence. The court then adjourned for lunch and immediately following lunch senior counsel for the applicant applied to have the jury discharged relying on the two portions of Mr Morgan’s evidence set out above on the grounds that the applicant had no notice of the same, that the information elicited by the questioning was of no relevance, of no probative value and prejudicial. While the notes referred to by Mr Morgan were mentioned in his witness statement they were not an exhibit until the first day of the trial when the list of further exhibits was served. Senior counsel for the applicant was unaware of the notes or their contents until furnished with the same over lunch. The notes had been disclosed which indicated to the defence that they would not be part of the prosecution case. The witness statement was highly misleading as it suggested that the statement was a contemporaneous note while clearly it was not.
“Q. Did you also indicate to him that the Manager was of a mind that the matter could be resolved without going through the Gardai?
A. I did. I told him that the Manager following on from receipt of my report and discussing that it had decided that if the monies that the Council was out of pocket was reimbursed and a penalty paid that he would review the matter. At the time this decision was made by the manager, Donal O’Donoghue, he was on I think his way to Australia at the time. He was going to Australia.
Q. Who was going?
A. Mr O’Donoghue was going to Australia for St. Patrick’s Day and he indicated prior to departure if the matter was resolved and the parties were willing to pay back the money, that he would consider the matter when he came back from Australia.
Q. What amount of penalty?
A. €3,000 was the figure.
Q. Was the figure mentioned?
Q. When you explained all that to Councillor Fahy, what did he say to you?
A. Initially he was going to ring Tom Byrne and discuss with him about who would pay or how it would be paid. I actually gave him Tom Byrne’s phone number, mobile phone number from an invoice that was there or a copy of the invoice and we continued to discuss the matter and Councillor Fahy, he didn’t ring him and then he said to me, he says, ‘sure, I will pay the whole lot myself, the €10,000’.
Q. Did he give any reason why he said he would pay the whole lot?
A. All he said to me was ‘It is nothing really. It’s only a small amount of money’, he says, and qualified it by saying that he, ‘sure, I have been offered €3.8 million for the field in Ardrahan’.”
In responding to the applicant’s submission counsel for the prosecution accepted that he led evidence from the notes. He accepted that the portions which he led were not probative but maintained that they were not prejudicial.
Having considered the application the learned trial judge refused the same but made it clear that if at the conclusion of the prosecution case the applicant’s counsel felt there was merit in renewing the application they were at liberty to do so. This was the correct approach to adopt where the application was being refused: see People (D.P.P..) v O’Callaghan  1 I.R. 584 at 598.
A necessary precondition to the admission of evidence in criminal proceedings is that it must be relevant to the issues in the proceedings. In People (D.P.P.) v Ferris unreported, Court of Criminal Appeal, June 10th 2002, Fennelly J. said:
Again in The People (D.P.P.) v Shortt (No. 1)  2 I.R. 686 Hardiman J. at 693 said:-
“The common law has acted on one fundamental principle of proof since early modern times and since the abandonment of the primitive methods of proof of Saxon times. This rule has operated for centuries and is that the only evidence which is admissible at a criminal trial whether for or against the guilt of the accused is evidence which is relevant. This means evidence which tends to prove or disprove whether the accused committed the act with which he is charged.”
The effect of the introduction of inadmissible evidence will depend upon the circumstances of the particular case. One relevant factor is whether an objection is raised at the time: People (D.P.P.) v Cronin  3 I.R. 377 at 390-2. In the case of a trial by jury it may be possible for the trial judge to cure any prejudice arising by giving appropriate directions to the jury. If, however, the evidence is so prejudicial that it creates a real and substantial risk of an unfair trial which cannot be avoided by any directions that might be given to the jury then it is appropriate to discharge the jury: People (D.P.P.) v Marley  I.L.R.M. 17. There is, of course, always the danger that any attempt by the court to undo the damage done by the introduction of inadmissible evidence by way of a direction to ignore the same may be counterproductive and would only draw the jury’s attention to that evidence and indeed this was adverted to by senior counsel for the applicant in his submission to the trial judge. On the other hand the discharge of a jury should be the last resort and accomplished only in the most extreme circumstances: juries are much more robust and conscientious than is often thought. They are quite capable of accepting a trial judge’s ruling that something is irrelevant or should not have been given before them; see Dawson v Irish Brokers Association, unreported, Supreme Court, November 6th 1998, per O’Flaherty J.
“All evidence must be relevant to a matter in issue as the first condition of admissibility. There are exceptions to the admissibility of relevant evidence, but irrelevant evidence is never admissible: see Cross and Tapper on Evidence (9th edition) at pp 55 and 56.”
A special feature of the present case is that there was a non-compliance with the requirements of the Criminal Justice (Miscellaneous Provisions) Act 1967. Had a copy of the notes been exhibited in a timely manner and had a copy of the same been furnished to the defence or inspection proffered as required by the Act it would have been possible for the defence to object to the evidence being given on the grounds of irrelevance. This is not a case in which the inadmissible evidence was unsolicited by the prosecution but was blurted out by the witness unprompted. Had the voir dire taken place in advance of the evidence being given rather than after it had been given the evidence would not have been given. What occurred is a direct result of the non-compliance by the prosecution with the requirements of the Act. Once the application to the learned trial judge to discharge the jury was refused, the applicant’s senior counsel was faced with a dilemma. He could cross-examine the witness with a view to minimising the effect of the evidence but thereby risk reinforcing any prejudicial view which the jury might have formed as a result of hearing the same. He could ask the learned trial judge to direct the jury in relation to the evidence. Alternatively he could remain silent on the passages of evidence in the hope that the jury might not attach any significance to the same. He adopted the last mentioned course and neither he, the prosecuting counsel, or the learned trial judge made any further reference to the passages of evidence which are quoted above. Be the decision made right or wrong it cannot be criticised he having been taken by surprise and it was an appropriate exercise of senior counsel’s discretion having regard to the position in which the applicant had been placed by the evidence being led.
Having regard to the foregoing it is necessary to consider whether the passages of evidence in question were prejudicial and if so were they prejudicial to the extent that the jury ought to have been discharged. On behalf of the applicant it is submitted that the evidence of the applicant characterising Mr Byrne as a crook was corroborative of submissions made by the prosecution to the jury that the applicant sought to cast responsibility on others and blame others for his wrongdoing. Thus in his closing speech counsel for the prosecution said:-
In relation to the evidence of the €3.8 million offer for a field it is contended that this is highly prejudicial in the current climate. The evidence given was an incomplete statement of what was in the notes and made no mention that the field had been inherited. This must, it is argued, have left the jury under the impression that the applicant who is a small farmer with a small insurance business as well as a County Councillor had amassed great wealth. In the current climate and particularly having regard to the applicant’s role as a County Councillor 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. It is particularly unfortunate that this risk was created by non-compliance by the respondent with the Act of 1999. The name by which the applicant is popularly known and which it is likely was known to some at least of a Galway jury could well exacerbate the prejudice having regard to the nature of the offences with which the applicant is charged.
“Councillor Fahy has tried every trick in the trade to wriggle out of his predicament and in a last desperate attempt to do so, he has tried to blacken the reputations of the investigating Gardai in this case, that is, Detective Reidy, Sergeant Coppinger and Detective Glynn.”
In the circumstances of this case the court is satisfied that the introduction of inadmissible evidence in the manner in which it occurred created a real and substantial risk of an unfair trial. The apprehension of the applicant’s senior counsel that to seek to remedy the situation by cross-examination and a direction to the jury might exacerbate the position was not unreasonable. Such course might well have proved counterproductive in emphasising the significance which could be attached to the evidence given. The learned trial judge, in the circumstances of this case, ought to have discharged the jury.
In these circumstances the court grants the applicant leave to appeal and treats the hearing of the application as the appeal and allows the appeal and directs a retrial.