Court quashes corruption conviction due to new evidence casting doubt on witness testimony despite served sentence.

COURT OF CRIMINAL APPEAL

RECORD NO. 236/03

McGuinness J.

O’Donovan J.

de Valera J.

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

GEORGE REDMOND

APPLICANT

Judgment of the Court delivered the 28th day of July 2004 by McGuinness J.

The applicant in this application for leave to appeal was convicted on two counts of corruption before His Honour Judge

Michael White and a jury at the Dublin Circuit Criminal Court on 19th November 2003. The applicant was convicted by a

majority of ten to two. On 19th December 2003 he was sentenced to twelve months imprisonment. Both counts on which

the applicant was convicted arose from the same incident in which it was alleged by the prosecution that one Brendan

Fassnidge, a car dealer and garage owner, gave IR£10,000 in cash by way of a bribe to the applicant in or about the month

of March 1988 in return for assistance in the purchase of a right of way from Dublin County Council. At all material times

the applicant held the post of Assistant City and County Manager for Dublin City and County, a post from which he has

now retired. In his position as Assistant City and County Manager the applicant for many years had general charge of

planning matters in the County of Dublin. Prior to his trial on the aforesaid two counts of corruption the applicant had

appeared as a witness at the Tribunal of Inquiry into Planning Matters (the Flood Tribunal) and there had been considerable

media publicity concerning him in connection both with that Tribunal and with other matters concerning planning.

Following his conviction the applicant, who had been refused leave to appeal, applied on 20th February 2004 to this court

for leave to appeal against his conviction. The grounds of his appeal were set out as follows:

“1. The learned trial judge erred in law and on the facts in failing to stay the prosecution of the accused more

than six months when there existed a real and serious risk that pre-trial publicity would render his trial

unfair.

2. The learned trial judge erred in law and on facts in failing to give to the members of the jury panel from which the jury

was to be selected to try the accused instructions or directions which were sufficient to ensure that potential jurors who

had been exposed to pre-trial publicity and who were as a result likely to be influenced by the same did not serve on such

jury.

3. The learned trial judge erred in law and on the facts in ruling that evidence obtained as a result of a search of the

accused’s house conducted on the authority of a search warrant was admissible and, in particular, in rejecting the

submissions made on behalf of the accused that the said warrant was invalid.

4. The learned trial judge erred in law and on the facts in ruling that a statement made by the accused on the 1st day of

April 1999 was in law relevant and admissible in evidence.”

On 30th June 2004 the applicant applied to this court for an order granting leave to adduce new evidence namely:

(i) the bank records of Brendan Fassnidge at the Bank of Ireland, Blanchardstown

(ii) the statement of Sergeant Philip J. Bourke and

(iii) the statements of Padraic Brennan and Brendan Byrne both of the Bank of Ireland, Blanchardstown, which said records

and statements were attached to a letter from the Office of the Director of Public Prosecutions dated the 23rd June 2004.

The applicant also sought leave to amend his grounds of appeal by the inclusion of a further ground of appeal namely that

his conviction was unsafe in light of the new evidence of the bank records of Brendan Fassnidge which, the applicants

submitted, did not support the charges made against him.

The applicant’s application was grounded on the affidavit of his solicitor Ms Clara O’Callaghan, sworn 30th June 2004. The

motion to adduce new evidence was heard by this court on 5th July 2004. Judgment was reserved overnight and was

delivered by Denham J. on behalf of the court on 6th July 2004. This court granted leave to the applicant to adduce the

proposed evidence and to amend the notice of appeal as sought. In her judgment Denham J. set out the background to the

proposed evidence, to which I will refer later. The order of the court of 6th July 2004 set out that the court granted the

applicant’s application and directed the attendance of Mr Padraic Brennan, bank manager, Bank of Ireland, Main Street,

Blanchardstown, Dublin 15, on Friday the 9th day of July 2004 at the hour of eleven o’clock in the forenoon in the Hugh

Kennedy Court. Mr Brennan was ordered to bring with him all bank records for the period 1st March 1988 to 7th April

1988 inclusive as may be in the possession of Bank of Ireland in relation to Mr Brendan Fassnidge or any company relating

to the said Brendan Fassnidge.

The Applicant’s trial

At all times it was clear that the core witness for the prosecution at the trial of the applicant was Brendan Fassnidge and that

the crucial element in his evidence was his allegation that he had withdrawn IR£10,000 in cash from his account at the

Blanchardstown branch of the Bank of Ireland, that he placed it in a brown envelope, and that he had given this envelope

containing the cash to the applicant. Mr Fassnidge gave evidence that the handover of the cash had taken place in his (Mr

Fassnidge’s) family home and that his wife had also been in the house at the time. No other person was present. It was

accepted in evidence that Mr Fassnidge’s wife was unwilling either to make a statement to the Gardai in regard to the event

or to give evidence at the applicant’s trial. Mr Fassnidge’s evidence was that he had given the money in question to the

applicant in connection with a right of way which he wished to purchase from Dublin County Council in the interests of his

then garage business in Palmerstown, Co. Dublin. His evidence was that he had given the money to Mr Redmond in March

1988 and that shortly thereafter he had received a letter from Dublin County Council permitting him to buy the right of way

in question. Prior to the trial of the applicant the prosecution had made disclosure of relevant materials to the defence. As

was stated by the applicant’s solicitor in her affidavit it was made clear by the prosecution that due to the lapse of time since

the alleged incident there were no bank records in existence in relation to Brendan Fassnidge’s accounts in the Bank of

Ireland in Blanchardstown. In his evidence Mr Fassnidge also stated that he himself had no bank records for the relevant

period. In addition, as is set out in greater detail in the judgment of Denham J., Garda Martin Harrington gave evidence at

the trial that efforts had been made to secure bank records but the gardai were unable to get at the records they were looking

for because the banks were not obliged to keep records beyond six years. Up to the fifth day of the trial that position was

accepted by both prosecution and defence. On the fifth day of the trial evidence was given by a Mr Paul Sheeran, who had

been branch manager of the Bank of Ireland in Blanchardstown in 1987 and 1988. In his evidence Mr Sheeran referred to

having seen a file in the bank but was unable to give any details as to the transaction shown on the file. The defence had no

notice of this evidence. Neither the prosecution nor the defence pursued the matter any further at the trial.

Subsequent to the applicant’s conviction and sentence the applicant’s solicitor corresponded with the Office of the Director

of Public Prosecutions in regard to the document referred to by Mr Sheeran. Subsequently she received from the Office of

the Director the relevant bank records of Brendan Fassnidge at the Bank of Ireland Blanchardstown. In accordance with the

judgment and order of this court of 6th July 2004 the applicant was permitted to call in evidence at this appeal Mr Padraic

Brennan, the current manager of the Blanchardstown branch of the Bank of Ireland, to produce and prove the records in

question.

The Applicant’s appeal

The applicant’s appeal came on for hearing before this court on 9th July 2004. The court decided that the most suitable

approach was to begin by hearing the evidence of Mr Brennan. Following that the court would hear submissions of counsel

regarding the applicant’s ground of appeal that his conviction was unsafe in the light of that evidence. The court would reach

a decision concerning that ground of appeal and, if necessary, submissions on the other grounds of appeal put forward by

the applicant could be heard at a later stage.

Mr Brennan, accordingly, was called in evidence and produced the relevant bank records, which he proved. Copies of these

records had already been examined both by counsel for the applicant and by counsel for the Director and it was accepted

that there was no record of Mr Fassnidge having withdrawn IR£10,000 in cash from his account during the material period

of time. The only cash withdrawals made by Mr Fassnidge had been of minor sums such as £100 to £200 which had been

withdrawn through the bank’s ATM machines. Mr Brennan’s evidence was unchallenged.

Submissions of Counsel

Senior counsel for the applicant, Mr Grehan, submitted that the credibility of Brendan Fassnidge was crucial to the

prosecution case. He was the “core” witness at the trial. During the course of cross-examination Mr Fassnidge seemed

confused about many matters and contradicted himself on several occasions. There was no corroboration by his wife of his

central allegation and he had no bank records relevant to the transaction. Despite these difficulties, however, Mr Fassnidge

resolutely maintained his central allegation that he gave IR£10,000 in cash at his home to the applicant in connection with

the purchase of the right of way. He insisted on nine occasions during his evidence that he had withdrawn this money from

the Bank of Ireland in Blanchardstown on the morning of the day he handed it over. He said that this was was only a few

days before he got a letter from Dublin County Council notifying him of the grant of the right of way. He identified this

letter as being one dated 7th April 1988 which was exhibited in the book of agreed exhibits.

The records now produced in evidence demonstrated that there was no such transaction in the Bank of Ireland in

Blanchardstown at the time. Mr Grehan argued that the position had changed from a negative situation where there were no

records to show whether he was telling the truth or not to a positive one. It could now be positively said that the bank

records did not support what he said concerning this crucial matter. This meant that his testimony at the trial was very

seriously undermined.

If these bank records had been available at the trial Mr Fassnidge might have been forced to concede in cross-examination

that he was wrong in his allegation. At the very least, Mr Grehan submitted, the defence would have been in a position to

make a strong application for a direction. Even if such a direction was refused the bare majority conviction of the applicant

by the jury would have been far less likely. In the circumstances the conviction of the applicant was unsafe and

unsatisfactory.

In his argument Mr Grehan relied on the case of The People (Director of Public Prosecutions) v Gannon [1997] 1 I.R.

40 in which the Supreme Court laid down the principles which should be followed by the Court of Criminal Appeal in the

situation where a new evidence emerged following the conviction of an applicant. In that case the Supreme Court had held

that the question of whether a newly discovered fact had rendered a conviction unsafe and unsatisfactory could not be

determined by having regard solely to the course taken by the defence at the trial. Rather the court should have regard to the

course the defence might have taken had it been aware in advance of the trial of the existence of the newly discovered fact,

and the possibility that a different approach by the defence might have led to an acquittal.

Senior counsel for the Director, Mr McCarthy, accepted the test set out in the The People (Director of Public

Prosecutions v Gannon). He drew attention to a passage in the judgment of Blayney J. in that case where (at page 48) the

learned judge said:-

“In my opinion the answer to the first part of the question should be that the question of whether a newly discovered fact

has rendered a conviction unsafe and unsatisfactory cannot be determined by having regard to the course taken by the

defence at the trial. What the court is required to do is to carry out an objective evaluation of the newly discovered fact

with a view to determining in the light of it, whether the applicant’s conviction was unsafe and unsatisfactory. The court

cannot have regard solely to the course taken by the defence at the trial.”

Mr McCarthy argued that this court was very much at large in evaluating the possible effect of the new evidence and must

make an objective evaluation of its effect. He reminded the court of the limitations of the printed page and of the difference

between the reading of a transcript and the actual hearing of the evidence by the jury at a trial, referring to the case of Hay

v O’Grady [1992] 1 I.R. 210.

Counsel submitted that the evidence at the trial was not substantively changed by the fact that the bank records did not

show the relevant cash transaction. Already at the trial the jury had before it the evidence of Mr Fassnidge and of Garda

Harrington that there was no available record to corroborate Mr Fassnidge’s evidence. They subsequently had before them

the evidence of Mr Sheeran that he had in fact looked at the records and could find no support in them from Mr Fassnidge’s

alleged cash transaction. The new evidence of the records now before the court merely

added support to the evidence of Mr Sheeran.

Mr McCarthy argued that this court should consider all of the evidence before the jury and the whole run of the trial. There

was supporting documentary evidence for the fact that Mr Fassnidge was notified of the grant of the right of way only a few

days after the stated time at which he had given IR£10,000 to the applicant. The jury also had before it the statement made

by the applicant on the 1st April 1999 which was ruled admissible by the trial judge. In this statement the applicant said that

he had received £5,000 in cash from Brendan Fassnidge in connection with the acquisition by him of this right of way. He

had said that this was an unsolicited payment received by him at a later date. There was also evidence of an entry in the

applicant’s official yearbook for 1988 in the column for Friday 6th May 1988 naming Mr Fassnidge. In

addition there was both viva voce and documentary evidence concerning the acquisition of the right of way by Mr Fassnidge

from the Council and of the applicant’s involvement in this transaction.

Before considering their verdict the jury had also heard the speeches of counsel for the prosecution and counsel for the

defence and it had had the benefit of hearing the trial judge’s charge. In the course of his charge to the jury Judge White had

commented on Mr Fassnidge’s evidence as follows:

“Now, effectively the credibility of Mr Fassnidge has been challenged very forcefully in the evidence, and it has been

alleged that his evidence was a moveable feast, and that there was no corroboration in that there was a conflict of

evidence about the presence of his wife, and that this evidence varied in Mr Fassnidge’s evidence, in relation to the bank

records and there was no corroboration.”

The jury were therefore fully aware of any weaknesses in the evidence of Mr Fassnidge. On the evidence it was open to

them to convict and they did so. Even if they had the additional evidence before them it would still have been open to them

to accept Mr Fassnidge’s central allegation that he had paid money to the applicant in order to obtain the necessary right of

way and it was therefore open to them to convict the applicant.

The Law and Conclusions

Section 2 sub-section (1) of the Criminal Procedure Act 1993 provides, inter alia:

“A person –

(a) who has been convicted of an offence..

(i) on indictment..

and who, after appeal to the Court including an application for leave to appeal, and any

subsequent re-trial, stands convicted of an offence to which this paragraph applies, and

(b) who alleges that a new or a newly-discovered fact shows that there has been a miscarriage of justice to the

conviction…

may, if no further proceedings are pending in relation to the appeal, apply to the Court for an order quashing

the conviction..”

Both counsel in their submissions correctly accepted that the leading authority

on the evaluation of new evidence by the Court of Criminal Appeal is The People (Director of Public Prosecution) v

Gannon [1997] 1 I.R. 40. In that case in which

the applicant was convicted on charges of rape, indecent assault and common assault the only issue at the trial was the

identity of the assailant and the prosecution case depended entirely on the visual identification evidence of the complainant.

Subsequently new documentary evidence emerged concerning the description of the applicant by the complainant. It was

alleged that these documents constituted a newly discovered fact which showed that there had been a miscarriage of justice

and the applicant applied to the Court of Criminal Appeal under section 2 of the 1993 Act for an order quashing his

conviction.

The Court of Criminal Appeal concluded that the newly discovered fact did not render the conviction unsafe and

unsatisfactory. However the court certified that the decision involved a point of law of exceptional public importance,

namely, whether the material which became available after the conviction of the applicant rendered the conviction unsafe

and unsatisfactory having regard to the course that the defence took at trial or otherwise.

On appeal the Supreme Court dismissed the appeal and answered the point of law in the negative. The court, however, set

out principles to be followed by the Court of Criminal Appeal in cases where new evidence became available subsequent to

the conviction of an applicant. These are set out in the head note as follows:

“1. That the Court of Criminal Appeal was required to carry out an objective evaluation of the newly

discovered fact with a view to determining in the light of it whether the conviction was unsafe and

unsatisfactory.

2. That the Court of Criminal Appeal could not conclude for certain that the advent of a newly discovered fact

would have had no effect on the manner in which the defence was conducted at the trial.

3. That, accordingly, the question of whether a newly discovered fact had rendered a conviction unsafe and

unsatisfactory could not be determined by having regard solely to the course taken by the defence at the trial.

Nor that the court should have regard to the course of events might have taken had it been aware in advance at

the trial of the existence of the newly discovered fact, and the possibility that a different approach by the

defence by have led to an acquittal.”

Blayney J. in his judgement (at page 47) set what he described as the real issue:

“The real issue here, it seems to me, is whether the Court of Criminal Appeal, in considering the effect of a

newly discovered fact, is entitled to hold that, because of the manner in which the defence was conducted at

the trial, no reliance would have been placed on the newly discovered fact, had it been available. In other

words, is the court entitled to say: in the light of what the transcript discloses of the course taken by the

defence at the trial, we are satisfied that the newly discovered material would not have resulted in any change

in the manner in which the defence was conducted and accordingly the newly discovered material did not

render the conviction unsafe and unsatisfactory. In my opinion, the court would not be entitled to approach the

issue in this way. The court could not conclude for certain that the advent of the newly discovered material

would have no effect on the manner in which the defence was conducted. The furthest one could go would be to

say that it is possible that it might not have had any effect and this would not relieve the court from examining

what the position would have been if the defence had availed of the newly discovered material and altered the

strategy accordingly.

In my opinion, the answer to the first part of the question should be that the question of whether a newly

discovered fact has rendered a conviction unsafe and unsatisfactory cannot be determined by having regard to

the course taken by the defence at the trial. What the court is required to do is to carry out an objective

evaluation of the newly discovered fact with a view to determining in the light of it whether the applicant’s

conviction was unsafe and unsatisfactory. The court cannot have regard solely to the course taken by defence

at the trial.”

In the instant case, therefore this court must carry out an objective evaluation of the newly discovered fact. The court must

go on to determine whether in the light of that fact the applicant’s conviction was unsafe and unsatisfactory.

There is, of course, no issue in regard to the accuracy of the evidence of the bank records produced to this court by Mr

Brennan. These records establish conclusively that Mr Fassnidge did not withdraw IR£10,000 in cash from his account in

the Blanchardstown branch of the Bank of Ireland at any time during March or April 1988. Mr Fassnidge’s evidence that he

did so cannot, therefore, be relied upon.

Senior counsel for the Director is correct in saying that this court must have regard not alone to the evidence of Mr

Fassnidge but also to the whole of the evidence at the trial. The court has, therefore, considered both the oral and the

documentary evidence which was before the members of the jury as they considered their verdict. Leaving aside for the

moment the evidence of Mr Fassnidge himself, it would be fair to say that an unattractive picture emerges of the events

which led to the grant of the right of way to Mr Fassnidge by Dublin County Council. It was fully established in evidence

that Mr Fassnidge made an open and legal payment of IR£10,000 by cheque to the County Council in respect of the right of

way. Mr Fassnidge, incidentally, refused to admit this fact until the fourth day of the trial when he experienced a somewhat

unlikely recovery of his memory of the event. The applicant himself in his statement of 1st April 1999 admitted that he had

received £5,000 in cash from Brendan Fassnidge in connection with the acquisition of the right of way, although he claimed

that this was an unsolicited payment. In short, on the general evidence the jury could well have concluded that neither the

applicant nor Mr Fassnidge were persons of any great merit and that there were a number of highly questionable aspects to

the transaction regarding the right of way. However, the applicant was charged with very specific offences. The particulars

of offence in respect of the first count against the applicant were:

“George Redmond, being an officer or servant of the Council of the County of Dublin, a public body, on a date unknown

between the 1st day of June 1987 and the 25th day of June 1989 within the State corruptly received a gift of money from

Brendan Fassnidge as an inducement to or award for doing or forbearing to do anything in respect of the sale of a right

of way at Palmerstown, Co. Dublin, by the Council of the County of Dublin and in particular the receipt of £10,000 in

cash at the home of Mr Brendan Fassnidge.”

The particulars of offence on the second count were:

“George Redmond, being an agent of the Council of the County of Dublin, on a date unknown between the 1st

day of June 1987 and the 25th day of June 1989 within the State corruptly accepted for himself a gift of money

as an inducement to or award for showing favour to another, namely Brendan Fassnidge, in relation to his

said principal’s affairs, namely the sale of a right of way at Palmerstown, Co. Dublin, and in particular the

receipt of £10,000 in cash at the home of Mr Brendan Fassnidge.”

These were the matters required to be proved beyond reasonable doubt by the prosecution. It must be accepted that the full

extent of these matters was established, if it was established at all, only through the evidence of Mr Fassnidge. It was

acknowledged throughout the trial that his was the core evidence.

The members of this court have carefully read the entirety of the transcript of Mr Fassnidge’s evidence. The court fully

accepts what Mr McCarthy has said about the deficiencies of the written transcript as delineated by the Supreme Court in

the case of Hay v O’Grady. Nevertheless even in transcript form the immediately striking feature of Mr Fassnidge’s

evidence is that it is largely self-contradictory both in its general terms and in detail, with the sole exception of a central

allegation that on a particular day shortly before the 7th April 1988 he went to the Blanchardstown branch of the Bank of

Ireland and withdrew a sum of £10,000 in cash which he placed in a brown envelope and later at his home gave to the

applicant. Much of the detail of Mr Fassnidge’s evidence is contradicted either by other witnesses or by the documentary

evidence that was before the court. This was put to him in a lengthy and detailed cross-examination by Mr Grehan. His

answers were often dismissive or confused.

Despite all this, however, he clung to his central allegation and on each of nine occasions during his evidence he stated that

he went to his Bank of Ireland branch in Blanchardstown and withdrew the sum of £10,000 in cash. He put this sum in a

brown envelope and gave it, in his home that day, to the applicant. Mr Fassnidge gave inconsistent evidence about the size

of the envelope, about what pocket he carried it in, about where in his home he put the envelope, about where in the house

his wife was when he handed over the envelope to the applicant, about whether his wife knew that the envelope contained

money and if so how much money. But he never wavered in his evidence that he had gone to his bank that morning and

withdrawn the money in cash. He was cross-examined as to whether the money was withdrawn from the National Irish

Bank (as had been stated in a newspaper article) rather than the Bank of Ireland but he firmly stuck to his guns that he

withdrew the cash from the Blanchardstown branch of the Bank of Ireland.

The new evidence before this court now shows that this crucial part of Mr Fassnidge’s evidence is simply wrong. Had this

evidence been available to the defence at the trial it would assuredly have thrown a very grave doubt over Mr Fassnidge’s

evidence as a whole. The learned trial judge, as set out above, in his charge had already drawn attention to some of the

difficulties of Mr Fassnidge’s evidence. Had the present evidence being available there is no doubt that Judge White would

have drawn it also to the attention of the jury.

Mr Grehan submits that had this evidence been available the defence would have been in a position to make a strong

application for a direction. This court agrees that in the circumstances such an application could well have been successful.

Leaving aside the question of a direction, however, it is our view that, had the evidence of the bank records been available

to the members of the jury, there is at the very least a strong possibility that that evidence would have raised a reasonable

doubt in their minds as to whether the applicant was guilty of the particular offences with which he was charged. This court

considers, therefore, that the conviction of the applicant was unsafe and unsatisfactory and the court will therefore quash the

conviction of the applicant on both charges.

The question remains as to whether the court should now order a re-trial of the applicant on these charges. The applicant

was sentenced to twelve months imprisonment to run from the 19th November 2003. Allowing for the proper period of

remission the court understands that the applicant is due for release on 19th August 2004. The applicant has therefore

served virtually the whole of his sentence. In these circumstances it would in the view of this court be wrong to order a re-

trial.

DPP v George Redmond