Kennedy loses court attempt to stop trial

Fri, Jun 8, 2012, 01:00

THE SUPREME Court has dismissed by four to one an attempt by businessman Jim Kennedy to stop his trial over alleged corrupt payments for land rezoning.

Mr Kennedy, Queensway Quay, Gibraltar, denies charges of making corrupt payments to politicians relating to rezoning motions voted on by Dublin County Council and Dún Laoghaire-Rathdown County Council concerning lands in Carrickmines.

The charges relate to the attempted rezoning of lands owned by Jackson Way Properties at Carrickmines, Dublin, in 1992 and the successful rezoning of part of these lands in 1997. Last July, Mr Justice John Hedigan dismissed the application by Mr Kennedy to halt the trial and he appealed that decision to the Supreme Court. Yesterday, the Chief Justice, Ms Justice Susan Denham, Mr Justice Nial Fennelly, Mr Justice Donal O’Donnell and Mr Justice Frank Clarke all dismissed the appeal, while Mr Justice Adrian Hardiman dissented on grounds of inexcusable delay in the prosecution.

Mr Kennedy had argued that his trial should be prohibited on grounds including alleged inexcusable delay before charges were brought against him. He also argued the State was not entitled to wait to charge him until a key witness, Frank Dunlop, had been “effectively gentrified” for the purposes of the trial. Mr Dunlop, a former government press secretary, was sentenced in May 2009 to two years in prison after pleading guilty to corruption. In October 2010, Mr Kennedy was charged with corruption after he attended the High Court to oppose a bid by the Criminal Assets Bureau to seize some of the Carrickmines lands. The Chief Justice said that while there was a delay in bringing the charges against Mr Kennedy, the reasons given by the Director of Public Prosecutions for that delay, including unavailability of key witnesses such as Mr Dunlop to give evidence, were reasonable.

The delay had not prejudiced Mr Kennedy in a way that would justify prohibiting his trial, she said.

She also dismissed Mr Kennedy’s claim that Mr Justice Hedigan displayed bias towards him in remarks made after inspecting documents over which the DPP has claimed privilege.

Mr Justice Hedigan had said, while he had seen documents highly prejudicial to Mr Kennedy, that those were tangential to any issue in Mr Kennedy’s proceedings.

In his judgment, Mr Justice Nial Fennelly said he did not think Mr Justice Hedigan’s remarks could be interpreted as exhibiting bias.

Mr Justice Frank Clarke said that while he agreed the appeal should be dismissed, he differed from the Chief Justice in finding a partial, but not a complete, explanation for the lapse of time. While accepting there was a need to improve the DPP’s position by ensuring Mr Dunlop had been convicted before proceeding, Mr Justice Clarke said he was not satisfied that explanation went far enough to explain a five-year lapse.

In his dissenting judgment, Mr Justice Hardiman said he believed the appeal should be allowed on grounds including the delay. In his view, the decision not to charge Mr Kennedy until after Mr Dunlop’s trial “was not the real or actual reason” for the delay but was rather “a ploy to gain tactical advantage and nothing more”.