DPP seeks retrial of ex-FG councillor Fred Forsey Junior on corruption charges

The application is opposed by Mr Forsey.

The five-judge Supreme Court, having heard both sides today, will give its ruling on December 21.

Mr Forsey last month won, by a four to one majority, a Supreme Court order quashing his conviction. He had already served his sentence after being jailed in 2012 for an effective four years over receiving, while a member of Dungarvan Town Council in 2006, payments totalling €80,000 from a developer.

The matter was adjourned to allow the DPP decide whether to seek a retrial and Mr Forsey was in court today when Noel Whelan SC, for the DPP, sought a retrial.

Mr Whelan said this was a serious offence and a retrial was in the public interest, including in retaining confidence in the administration of justice, public officials, local government and the planning process. It was relevant Mr Forsey was a public official, a vice chairman of Dungarvan town council at the time.

The fact Mr Forsey had served his sentence did not mean there should be no retrial and the test was where the balance of justice lay, he said. That balance was in directing a retrial for reasons including Mr Forsey won his appeal due to a “fault” in the trial and the available prosecution evidence against him was “overwhelming”.

Prosecutions are not just brought for the purpose of imprisonment, they are also brought to hold a person to account for the offending, he argued.

Counsel accepted, if there was a retrial and conviction, there was no prospect Mr Forsey would have to serve any further time in prison.

Remy Farrell SC, for Mr Forsey, said his client had not just served his sentence, the longest ever imposed for corruption here, but had also endured the consequences of that, including having the breakdown of his marriage dissected by the media.

It was “extraordinary” for the DPP to argue the prosecutorial process is not primarily about punishment when it is, he said.

It was contended this was a serious offence but there are much more serious offences and corruption offences also do not just apply to the public sector, he added.

Counsel also disputed there was “overwhelming” evidence against his client. To advance such an argument raised serious concerns in relation to the presumption of innocence which the DPP appeared to “completely ignore”, he said.

Mr Forsey, of Coolagh Road, Abbeyside, Dungarvan, was convicted under the Prevention of Corruption Acts (POCA) in connection with receiving a total €80,000 in 2006 in three separate payments from Michael Ryan, a developer with an interest in a planning permission for the development of land at Ballygagin, Co Waterford.

He was also accused of behaving corruptly in trying to persuade officials and councillors in Waterford County Council to grant permission for the development, and when that was refused, attempting to alter the zoning of the land. It was further alleged he tried to get Dungarvan UDC, of which he was formerly an elected member, to bring the lands into its control.

He denied the charges and claimed the monies were loans.

He was convicted at Waterford Circuit Criminal Court and sentenced to six years, with the final two suspended.

Last month, the majority Supreme Court overturned the conviction over a legal error in the approach at Mr Forsey's trial to the onus of proof on a corruption charge as set out in Section 4 of the POCA, which Acts have since been replaced.

In his dissenting judgment, Mr Justice MacMenamin agreed with the majority's statement of the applicable law but disagreed the conviction should be quashed because he did not consider any "fundamental injustice" occurred at trial.