THE COURT of Criminal Appeal has for the second time quashed the conviction of Independent Galway councillor Michael Fahy (60) for fraud.
The three-judge court yesterday determined that the conviction for obtaining €7,000 by false pretences from Galway County Council in 2002 was unsafe.
No retrial has been ordered.
Presiding judge Mr Justice Adrian Hardiman said that this was a “tangled case” full of unusual features and the court was left with the impression that witnesses were reluctant to discuss in detail matters about which they knew a great deal.
However, Mr Justice Hardiman said it was clear that a key prosecution witness had given evidence which was at odds with the charge against Mr Fahy as laid out in the indictment.
He said that the witness claimed the councillor issued him with an invoice for €7,000, the cost of which would be covered by council funds using an instrument known as a Notice of Motion.
Mr Justice Hardiman said that the charge against Mr Fahy, as laid out in the indictment, referred to obtaining by false pretences €7,000 from a fund for roads known as a community involvement scheme.
Mr Justice Hardiman, sitting with Mr Justice Declan Budd and Mr Justice Daniel O’Keeffe, said the evidence before the court was different from the case made by the State. He said a charge of false representation must pertain to an existing state of fact and, as the court could not safely conclude this was so, it would overturn the councillor’s conviction.
Mr Fahy, of Cahir Duff, Ardrahan, was sentenced to one year by Judge Michael White in December 2008 after a Galway Circuit Criminal Court jury found him guilty of obtaining €7,000 by false pretences from the council.
He had denied charges of misappropriating funds in relation to the erection of fencing on his land in Ardrahan during a road-widening community involvement scheme approved by the council.
Counsel for the applicant, Mr Bernard Mahon SC, told the court that the trial judge had erred in principle by failing to withdraw the matter from the jury on the basis that the prosecution had not proved an essential element of the case. He said the indictment charged Mr Fahy with falsely obtaining €7,000 for works carried out under the community involvement scheme in 2002.
Mr Mahon said the State had failed to prove that such a scheme existed in 2002 and did not “at any stage” prove that the required statutory instruments had been employed to establish the scheme.
Mr Mahon said that a community involvement scheme was essentially an allocation of funds by the State to local authorities for carrying out improvements to roads and other amenities.
Counsel for the State, Conor Fahy BL, told the court that county engineers and officials gave evidence that such a scheme existed in 2002 and that the work carried out on Mr Fahy’s land was not part of any such scheme.
He said that former Galway county manager Donal O’Donoghue gave evidence that a community involvement scheme existed in 2002, while Gort area engineer Noel Forde said that he did not give any order for work on Mr Fahy’s lands.
Conor Fahy said that the jury heard evidence that the erection of 60 posts on Mr Fahy’s lands was not carried out for the public benefit and could not therefore be deemed to be part of a community involvement scheme.