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COURT OF CRIMINAL APPEAL RECORD NO. 236/03
Denham J.
O’Donovan J.
Quirke J.
THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS AND GEORGE REDMOND
Judgment of the Court delivered on the 6th day of July, 2004, by Denham J.
1. George Redmond, the applicant in an application for leave to appeal, has applied 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 records and statements were attached to a letter from the office of the Director of Public Prosecutions dated 23rd June, 2004. Also, the applicant seeks an order granting leave to include a further ground of appeal, namely that his conviction is unsafe in light of the new evidence of the bank records of Brendan Fassnidge which, it is submitted, do not support the charges.
2. The application is grounded on an affidavit of Clara O’Callaghan, Solicitor, of the firm of Anthony Harris & Company, representing the applicant. Ms. O’Callaghan deposed:-“2. I say that the applicant herein was tried and convicted on two counts of corruption at the Dublin Circuit Criminal Court on Bill 3000/01 before His Honour, Judge Michael White and Jury. Both counts arose from the one incident in was alleged by the prosecution that one Brendan Fassnidge gave £10,000.00 in cash to the applicant in or about the month of March of 1988 in return for assistance in the purchase of a right of way. The applicant was convicted by majority of 10:2 and was sentenced to 12 months imprisonment on the 19th of December, 2003 which was backdated to the 19th of November, 2003, when he went into custody.
3. I say that in advance of the trial voluminous disclosure was made to the defence by the prosecution and it was made clear that due to the lapse of time since the alleged incident there were no bank records in existence in relation to Brendan Fassnidge’s bank accounts with the Bank of Ireland in Blanchardstown where he alleged that he had procured the £10,000 before handing it over to the applicant.
4. The situation therefore was that it was not possible to show whether in fact Brendan Fassnidge had withdrew that sum of money from the bank in relation to this alleged transaction. This was the understanding of the defence before the trial commenced.
5. At the trial, the credibility of Brendan Fassnidge and his allegation was crucial to the prosecution case. Counsel for the applicant cross-examined the prosecution’s so called ‘core’ witness Brendan Fassnidge on this basis and indeed Brendan Fassnidge made it clear that he had no bank records to back up his allegation and agreed that there were no bank records in existence. See Book ‘O’, Day 2 at page 37 questions 128 to 138.
6. This also appeared to be the prosecution’s view as can be seen from the evidence of Garda Martin Harrington as led by the prosecution. See Book ‘W’, Day 10 at page 75 question 155. He stated that ‘Efforts were made to secure records, but the banks are not obliged to keep records beyond 6 years and we were unable to get the records we were looking for.’
7. A Mr. Paul Sheeran former Bank Manager at Bank of Ireland in Blanchardstown at the relevant time appeared to have a different view. See Book ‘R’, Day 5 at page 38 questions 134-138. He gave evidence that suggested that there were in fact records in existence.
8. Counsel for the [applicant] did not pursue what these records were because the prosecution had told us there were no records and he could not risk breaching the cardinal rule of cross-examination when he did not know what answer might emerge. Neither could the matter be pursued in a voire dire in case matters arose which might in fact cause the prosecution case to be advanced beyond the position that there were no records of such a transaction.
9. This state of affairs was caused through no fault of the defence who had relied on the prosecution’s apparently erroneous understanding of the true position. I say that the prosecution should have made disclosure of this matter and appears to have failed in their duty to properly investigate this matter and in this regard to seek out evidence both for and against the applicant.
10. After the applicant was convicted and sentenced acting on the advice of counsel, I wrote to the Office of the Director of Public Prosecutions on the 5th of January, 2004 seeking the documentation referred to by Mr. Sheehan in his evidence. I say that I have now received the bank records of Brendan Fassnidge at the Bank of Ireland, Blanchardstown, Dublin. They are in two booklets marked GR/AH BOI 1 and 2 and are referred to in statements also furnished from a Sergeant Philip B. Bourke of An Garda Siochana and Padraic Brennan and Breda Byrne both of Bank of Ireland, Blanchardstown. These records and statements were attached to a letter to my firm from the Office of Director of Public Prosecutions dated the 23rd of June, 2004. I beg to refer to a true copy of the said letter and attachments upon which marked with the letter ‘A’ I have signed my name prior to the swearing hereof.
11. I say that from my perusal of the said records, it appears that it can now be stated definitely, that these bank records of Brendan Fassnidge do not support his allegation against the applicant. This I am advised is very significant in that it advances the previous position which was that there were no records to show one way or another. I say that I am advised by counsel that this is significant evidence which casts serious doubt on the reliability of the prosecution’s ‘core’ witness and hence the bare majority jury verdict in this case. In these circumstances, on behalf of the applicant, I am seeking the leave of the court to introduce this new evidence of these bank records at the hearing of the appeal and if necessary to permit a new ground of appeal to be added to deal with this matter to the effect that the conviction is unsafe due to the fact that the now available bank records do not support the evidence of Brendan Fassnidge.
12. I accordingly, pray this Honourable Court for an order in terms of the Notice of Motion herein.”
Copies of (i) the bank records of Brendan Fassnidge at the Bank of Ireland,
Blanchardstown, GR/AH BOI 1 and 2, (ii) the statement of Philip J. Bourke Sergeant, and (iii) statements of Padraic Brennan and Breda Byrne, were exhibited before the Court.
3. The charges of which the applicant was convicted were:
“Count No. 1
Statement of OffenceCorruption contrary to section 1 of the Public Bodies Corrupt Practices Act, 1889 as amended by the Prevention of Corruption Act, 1916.
Particulars of Offence
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 reward for doing or forbearing to do anything in respect of the sale of a right of way at Palmerstown, County 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.
Count No. 2
Statement of Offence
Corruption contrary to section 1 of the Prevention of Corruption Act, 1906 as amended by the Prevention of Corruption Act, 1916.
Particulars of Offence
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 reward for showing favour to another, namely Brendan Fassnidge, in relation to his said principals affairs, namely the sale of a right of way at Palmerstown, County Dublin and in particular the receipt of £10,000 in cash at the home of Mr. Brendan Fassnidge.
The particulars of the offences were amended by the trial judge by the addition of the words “and in particular the receipt of £10,000 in cash at the home of Mr. Brendan Fassnidge.”4. The essence of both offences was the same alleged incident – the payment of £10,000 in cash by Mr. Fassnidge at his home to the applicant in relation to a right of way. The evidence at the trial was that the sum was handed over some days before Mr. Fassnidge heard from Dublin Council by letter dated 7th April, 1988 that he would get the right of way. Thus the relevant bank records are around that time.
5. Mr. Fassnidge was the prosecution’s “core” witness. On nine occasions Mr. Fassnidge said in evidence that he got the £10,000 cash from the Bank of Ireland, Blanchardstown.
6. Counsel understood that there were no bank records because of the lapse of time. This is reflected in the evidence given by Garda Martin Harrington on 14th November, 2003 – Day 10 – where the official transcript states, of the evidence of Garda Harrington:-
“154 Q. I will just finally ask you, I think the Gardaí have certain powers under an Act from the last century called the Bankers Books Act but also under the provisions of the Criminal Justice Act, 1994 to procure bank records in respect of matters that they want to investigate; is that correct?
A. That is correct.
MR. GREHAN: Thank you very much.
JUDGE WHITE: Any matters arising?GARDA MARTIN HARRINGTON WAS THEN RE-EXAMINED, AS FOLLOWS, BY MR. MCCARTHY
155 Q. MR. MCCARTHY: Just in relation to bank records, we may have to clarify this, but were efforts made to secure record in this case?
A. Efforts were made to secure records, but the banks are not obliged to keep records beyond six years and we were unable to get the records we were looking for.”
There was different evidence given by Mr. Sheeran on Day 5, however the defence were given no notice of the information. The official transcript relates that on 7th November, 2003 – Day 5 – Mr. Sheeran stated:“MR. SHEERAN, HAVING BEEN SWORN WAS EXAMINED, AS FOLLOWS, BY MR. MCCARTHY
134 Q. MR. MCCARTHY: Mr. Sheeran, I think in 1987 to 1988 you were the branch manager of the Bank of Ireland at Blanchardstown, Dublin 15, is that correct?
A. Correct, yes.
135 Q. I think Mr. Fassnidge was a customer of the bank in or about A. That’s correct, yes.
136 Q. You knew him in that capacity?
A. Yes.
137 Q. Issues have been raised about records in relation to this case of transactions in or about that time, what is the position about records about that time?
A. Well I am really not aware because I have been retired from the bank since 1993. I took this opportunity, just during the week, to call into the bank to see what files they had on the case.
138 Q. You better not tell us what was said to you but your understanding is what, as a fact? We can call somebody else, if needs be.
A. I could see nothing on the file that would indicate any specific transactions. There were lists of cheques for amounts but I ` wouldn’t know who they were paid to.
139 Q. You can’t help beyond that?
A. Yes.”
7. Law
Relevant law is to be found in s. 7 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, which states that the Act of 1924 is amended by the substitution of the following section for s. 33:-“33.(1) The appeal, in case such certificate or leave to appeal is granted, shall be heard and determined by the Court of Criminal Appeal (‘the court’) on-(a) a record of the proceedings at the trial and on a transcript thereof verified by the judge before whom the case was tried, and
(b) where the trial judge is of opinion that the record or transcript referred to in paragraph (a) of this subsection does not reflect what took place during the trial, a report by him as to the defects which he considers such record or transcript, as the case may be, contains,
with power to the court to hear new or additional evidence, and to refer any matter for report by the said judge.
This court is requested to exercise its jurisdiction and power to hear new or additional evidence.
8. Submissions on behalf of the Applicant
Mr. Brendan Grehan, S.C., counsel on behalf of the applicant, submitted that this application arose as a result of the furnishing of additional evidence by the prosecution by letter dated the 23rd of June, 2004. The additional evidence is the bank records of Brendan Fassnidge from the Bank of Ireland in Blanchardstown where he said he had received the £10,000 before handing it over to the applicant. Strictly speaking it is these records which are sought to be adduced and the witnesses named are merely necessary to prove the records and deal with how they came into being, or were retrieved. Counsel submitted that the records if available to the defence in advance of the trial could have been used to further undermine the evidence of Brendan Fassnidge and that the reason that the records were not available was because the prosecution, in advance of the trial, never procured the records despite having a written authorisation from Brendan Fassnidge permitting them to do so. Counsel stated that Brendan Fassnidge also authorised the Tribunal into Planning Matters and Payments to obtain the records and it appears the records were assembled and provided for the latter purpose by the bank. Counsel further submitted that no adequate explanation is provided as to why the prosecution did not pursue the records and that the prosecution compounded matters by informing the defence that no records were in existence due to the lapse of time, thus cutting off a line of inquiry that the defence might otherwise have investigated on their own. Counsel submitted that the defence became aware of the existence of records at the trial, as a result of the evidence of Paul Sheeran, but at that point had concluded cross-examination of Brendan Fassnidge and dealt with the absence of records in a particular manner. Counsel submitted that the defence was put in an invidious position of not knowing what the records might reveal due to the non-disclosure and failure to properly investigate and preserve evidence by the prosecution in accordance with their duty as set out by the Supreme Court in the Braddish and Dunne cases and earlier by Mr. Justice McCarthy in the Tuite case. It was submitted that this resulted in a situation where the defence would have been extremely unwise to seek the records at that stage in the trial not knowing what they might reveal, while at the same time, a discharge of the jury would not have been in the applicant’s interest given the manner in which Brendan Fassnidge had been exposed as an incredible witness in the trial, something which was unlikely to be successfully repeated, reference was made to the sudden recovery of memory experienced by Mr. Fassnidge on the fourth day of giving evidence. In these circumstances, it was submitted that justice requires that the records which have now been made available, which further undermine Brendan Fassnidge’s evidence, should be admitted in this appeal. It was submitted that this is in accordance with the Court’s jurisprudence on the admission of fresh evidence. The court was referred to its decisions in The DPP v. Kevin O’Brien and The DPP v. Keane.
9. Submissions on behalf of The Director of Public Prosecutions
Mr. McCarthy, S.C., counsel for The Director of Public Prosecutions, submitted that this is not a case where there was a want of disclosure on the part of the prosecution. That the prosecution made full disclosure to the defence in advance of the trial of the applicant, that contrary to what is asserted by the applicant both in the affidavit supporting this application and his submissions, the prosecution never informed the applicant or his lawyers in advance of the trial that there were no bank records in existence in relation to Brendan Fassnidge. Counsel submitted that the prosecution informed the applicant and his lawyers that full disclosure had been made and this was and remains the case. It was submitted that this is not a case where, contrary to what is asserted by the applicant, the prosecution failed to “preserve” evidence. Further, there is no reference in the transcript of the papers filed in this appeal to any evidence that was lost or destroyed by the prosecution. It was submitted that the evidence which the applicant now seeks to adduce in the appeal is not new evidence, that it is evidence which emerged in the course of the trial and evidence which the applicant sought to rely upon in his defence to the charges he faced. It was submitted, that on his own case, the applicant became aware during the course of the trial of the fact that there were still in existence some bank records of Brendan Fassnidge from his former accounts with the Bank of Ireland in Blanchardstown from the 1980s, this evidence was given by Neal Sheeran, the manager of that bank at that time, during the course of his evidence. It was submitted that Mr. Sheeran also indicated that he had, with the permission of the bank and in preparation for giving evidence, looked through the records and there was nothing there in relation to the relevant payment in issue in this case. It was submitted that at this relatively early stage of the trial therefore, the applicant was aware of the fact that (i) there were in existence some bank records for Mr. Fassnidge from 1987 to 1989 and (ii) a witness had looked though these records and they showed nothing in relation to the £10,000 payment in issue in this case. It was submitted that the applicant, who clearly considered that the credibility of Mr. Fassnidge had already been undermined by cross examination, then decided to carry on with the trial without seeking sight of these records. It was pointed out that Senior Counsel for the applicant thereafter referred to the absence of any bank record supporting the withdrawal of the relevant sum by Mr. Fassnidge in the course of his closing to the jury. It was submitted that the gravaman of the applicant’s complaint in relation to this evidence appears to be based on an alleged failure by the investigating Gardaí to procure, and thereafter disclose all of the bank records of Mr. Fassnidge for the relevant period. It is submitted that the Gardaí did not fail in their duty to seek out evidence in this case, the Gardaí had sought to ascertain from the bank whether there was any evidence in their records in relation to the £10,000 later paid by Mr. Fassnidge and they were informed there was not, that there is no such supporting evidence in the bank records and the applicant was aware of this in the course of the trial. It was submitted that, if contrary to the above, there was some failure by the Gardaí to seek out evidence, then the applicant had at that point of the trial a number of legal remedies which he could have the invoked. It was submitted that the applicant could have asked the prosecution to obtain these records from the bank. Alternatively, the defence could have sought them from the bank and if necessary obtained a subpoena duces tecum from the trial judge for this purpose. If the applicant considered that this was not sufficient he could have sought to have had the jury discharged and a new jury empanelled to try his case following further consideration by his advisors of the bank records in question. It was submitted that, fully aware of the existence of some bank records of Mr. Fassnidge from the relevant period of time and of the non-existence therein of anything to support the withdrawal by Mr. Fassnidge of £10,000, the applicant and his legal advisor made an informed decision to proceed with the trial and not to seek sight of records. Having made this tactical decision the applicant then sought to use this evidence to further undermine the credibility of Brendan Fassnidge in addressing the jury at the close of the case. It was submitted that, if contrary to the above, the prosecution failed in its duty to seek out evidence and should in fact have obtained and disclosed these bank statements in advance of the trial, the legal position was that there existed legal remedies to protect the applicant form any disadvantage he might have suffered by any such failure. He chose for example not to seek to obtain the statements, not to seek to put them in evidence or not to seek to have the jury discharged. The applicant chose not to invoke any of these remedies and is now seeking to revisit that decision in the present appeal. The applicant is not alleging that he was disadvantaged due to any abuse or bad faith on the part of the prosecution. The applicant in this appeal is in effect seeking to prevent the trial of this applicant in circumstances where he alleges that due to a want of investigation on the part of the Gardaí he was put at a disadvantage in the conduct of the trial and where he chose not to invoke any of the remedies put in place to protect him against any such disadvantage. It was submitted that it is not the law, that an applicant can in circumstances where evidence emerges during a trial chose not to invoke the protections available to protect him from any perceived disadvantage thereby, proceed with his trial and, having been convicted, then seek by way of appeal to effectively prevent the community trying him on the charges by saying that he was disadvantaged by the emergence of new evidence.
10. Relevant Matters
Relevant matters are as follows:(i) The evidence in issue is the bank records of Brendan Fassnidge from the Bank of Ireland in Blanchardstown where he said in evidence that he had received £10,000 in cash before handing it over to the applicant.
(ii) The prosecution did not produce the records in advance of the trial, even though there was an authorisation from Brendan Fassnidge.
(iii) The evidence of Garda Harrington was that no records were available. This did not appear to be the case from Mr. Sheeran’s evidence.
(iv) The defence became aware of the existence of records at the trial, as a result of the evidence of Paul Sheeran, but at the time had concluded cross-examination of Brendan Fassnidge and dealt with the absence of records in a particular manner.
(v) The defence was put in the invidious position of not knowing what the records might reveal.
11. The first issue is whether or not there was disclosure on the part of the prosecution. This is not a case where evidence was withheld by the prosecution. It is clear from the general run of the case that the parties commenced the case with the common view that there were no bank records because of the lapse of time. This may be seen in the evidence of Garda Harrington. Nor is it a case where the prosecution failed to preserve evidence, or where evidence was lost or destroyed.
12. The court is satisfied that in the circumstances the bank records are new evidence. The evidence of Garda Harrington denied their existence. The evidence of Mr. Sheeran was of a reference. In the circumstances the evidence now sought to be adduced was not available at the trial. What is sought to be available is both admissible, relevant and material to the principle issue in the trial. Owing to the misunderstanding as to bank records, they were not available at the commencement of the trial and the reference to such evidence during the trial was not such as to exclude this remedy. Thus this evidence may be the subject of a motion to adduce new evidence.
13. The next issue is whether the evidence is admissible on the appeal. Counsel for the prosecution stressed that it was a tactical decision by counsel to proceed with the trial after Mr. Sheeran’s evidence, and having taken that tactical decision the applicant could not now seek to revisit the matter in a different way. While there are, of course, cases where a tactical decision by counsel on behalf of a defendant may preclude him from raising a point in a court of appeal, this is not such a case. In this case, in the course of the trial, it became apparent that there was admissible, relevant evidence, the nature and extent of which was unknown. In the circumstances where counsel had previously been given the impression that no such records were in existence, counsel cannot be faulted for not embanking on an inquiry of a witness nor of seeking to have a jury discharged.
14. The criteria which a court will consider in such an application has been set out by this court in previous cases including in a judgment delivered by McCarthy J., on 29th day of January, 1990, The People (at the suit of The Director of Public Prosecutions) v. O’Brien. While that judgment referred to s. 33 of the Courts of Justice Act, 1924 the applicable principles have not been altered by the amending legislation. The Court of Criminal Appeal held:-“Mr. O’Higgins on behalf of the Director of Public Prosecutions has submitted that the court should look to three criteria as to whether or not such evidence should be admitted as fresh or new evidence. Firstly, that the existence of such evidence could not reasonably have been known at the time of the trial, secondly that it wasn’t in fact known to the accused or his advisers and, thirdly that it would materially affect the decision.
This court is not satisfied that the application necessarily qualifies under these three criteria. There is, however, one particular aspect which the prosecution does not contest, that the existence of this evidence, for whatever value may attach to it, was known to the prosecution in the sense that the Gardaí knew about it although we were informed that the Director of Public Prosecutions’ Office was unaware and consequently the instructing solicitor and counsel appearing for the prosecution would not have been aware of it; in that sense it would be incorrect to say it could not reasonably have been known to the defence at the time of the trial. It could have been known if it had been disclosed as it ought to have been disclosed to them. It is true that there is no direct evidence that the accused did not know at the time, and the Court is not necessarily concluding that the evidence itself would materially have affected the decision or would materially bear upon the considerations now before this Court of Criminal Appeal. However, in the circumstances the Court is satisfied that it would be a possible apparent injustice if the accused were not given the opportunity of adducing this evidence on the hearing of the application for leave to appeal and accordingly will grant this application.”
This Court would adopt and apply the legal principles of that judgment. The three stated criteria are not the sole grounds for allowing in new evidence. In the circumstances of this case, there was an apparent misunderstanding prior to, and initially at, the trial, that there were no bank records. This was the position of the advisers to the applicant until the evidence given mid-trial by Mr. Sheeran. Even then there was a limited reference. In the circumstances that the core witness had given evidence and the essence of the case was his evidence, such bank records could materially affect the decision of the jury.
15. However, in this case the court decides the application on a broader basis. In a sense the prosecution knew of the evidence when Mr. Sheeran went and inspected the file and gave evidence mid-trial. Thus, as in O’Brien, it would be incorrect to say it could not reasonably have been known to the defence during the trial. But the circumstances were that it was not disclosed to either side before or initially at the trial. The court considers that it would not be fair if the only remedy available to the applicant was to seek a discharge of the jury and a new trial, in the course of the trial. The applicant is entitled to a fair trial.
16. In the circumstances of this case, the court is satisfied that it could give rise to an injustice if the applicant were not given the opportunity of adducing this evidence on the hearing of the application for leave to appeal and accordingly will grant this application.
17. Conclusion
The court will allow the motion and order leave to adduce new evidence as sought on the notice of motion, ground (a). In addition, the court will grant the applicant leave to include a further ground of appeal, namely that his conviction is unsafe in light of the new evidence of Brendan Fassnidge’s bank records.
18. Directions
The court may be required to give specific directions as to the giving of this evidence to this court. The court will hear counsel on the matter.
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