Fred Forsey Jnr, aged 45, of Coolagh Rd, Abbeyside, Dungarvan, Co Waterford, had pleaded not guilty to receiving €60,000, €10,000 and €10,000 in three corrupt payments from a property developer in 2006.
He was found guilty by a jury at Waterford Circuit Criminal Court and sentenced to six years’ prison, with the final two suspended, by Judge Gerard Griffin on June 27, 2012.
Forsey moved to appeal his conviction yesterday on grounds that the judge gave “a very serious misdirection” to the jury on how to deal with the presumption of corruption.
Counsel for Forsey, Remy Farrell SC, said the trial judge incorrectly instructed the jury that Forsey had to discharge the reverse burden on the balance of probabilities.
Mr Farrell further submitted that the trial judge erred in allowing the case to proceed when his client, as a Dungarvan town councillor, was incapable of granting planning permission as part of his office or position.
Counsel for the DPP, Denis Vaughan Buckley SC, said it was well established by law that the burden of proof on the defence was on the balance of probabilities and the point Forsey’s lawyers were now trying to make on appeal, was not raised at trial.
Even if the direction was wrong, which Mr Vaughan Buckley did not concede “for a moment”, the evidence against Forsey was “absolutely overwhelming”.
Mr Vaughan Buckley not only referred to the prosecution evidence but evidence given by Forsey himself, who attempted to make out that the payments were loans.
President of the Court of Appeal Mr Justice Seán Ryan, who sat with Mr Justice Garrett Sheehan and Mr Justice George Birmingham, said the court would reserve judgment.
Forsey had been granted an extension of time by the Court of Criminal Appeal last October to allow him to appeal his sentence and conviction. A defendant normally has 21 days from the date of their sentence to file a notice of their intent to appeal.
Ms Justice Elizabeth Dunne had said the absence of an earlier intention to appeal should not prevent the court from acting. She said the court was satisfied that the proposed grounds of appeal were such that the interests of justice required that time be enlarged.His ex-wife Ms Jenny Forsey gave evidence against him during the Waterford Circuit Court trial.