THE DIRECTOR of Public Prosecutions (DPP) decided for confidential reasons in June 2005 not to prosecute businessman Jim Kennedy for corruption until bribery charges against former lobbyist Frank Dunlop had been dealt with, the Supreme Court was told yesterday.
The State had successfully claimed privilege over documents relating to that decision, Anthony Collins SC said. Counsel was making submissions on behalf of the State opposing an appeal by Mr Kennedy against the High Court’s refusal to stop his trial.
The appeal concluded yesterday before the five-judge court comprising Chief Justice Susan Denham, Mr Justice Adrian Hardiman, Mr Justice Nial Fennelly, Mr Justice Donal O’Donnell and Mr Justice Frank Clarke. The court has reserved judgment.
Mr Dunlop, a former government press secretary, was sentenced to two years in prison with six months suspended in May 2009 after pleading guilty to corruption. He admitted giving money to politicians at the time of rezoning votes at Dublin County Council meetings relating to lands at Carrickmines in Dublin.
In October 2010, Mr Kennedy was arrested and charged with corruption after attending the High Court to oppose a move by the Criminal Assets Bureau to seize some of the Carrickmines lands.
A father-of-10 of Cormorant Wharf, Queensway Quay, Gibraltar, Mr Kennedy denies 16 charges of making corrupt payments to politicians relating to rezoning motions concerning the Carrickmines land. His trial has been postponed pending the outcome of his appeal against last July’s High Court refusal to halt it.
In the appeal, heard over two days this week, Martin Hayden SC, for Mr Kennedy, argued the High Court was wrong in finding against his client on a number of grounds, including that the delay in charging him was excusable.
The State had decided as a tactic not to charge Mr Kennedy until Mr Dunlop’s case had been dealt with and was not entitled to do so, counsel said. This had been done to make Mr Dunlop, who would be a key witness in the prosecution against Mr Kennedy, “look better” before a jury as he would have served time, counsel said.
Yesterday, Mr Collins, for the DPP, said Mr Kennedy had failed to identify any material factors to support his claim there was a substantial risk he would not get a fair trial due to the passage of time.
In response to questions from Mr Justice Hardiman, Mr Collins said the decision not to charge Mr Kennedy until Mr Dunlop had been processed through the court system was made by the DPP in June 2005.
The reason for the decision was contained in documents the State had successfully claimed privilege over, counsel said. Mr Kennedy’s side had never appealed that claim of privilege, he added.
The court heard the State rejected Mr Kennedy’s claims that the delay in prosecuting him would prejudice his ability to defend the case on grounds of, among other reasons, the unavailability of witnesses and documents.
On arguments by Mr Kennedy that the High Court judge should not have looked at documents prejudicial to his case over which legal privilege was asserted, Mr Collins said the judge had said he did not take that material into account.
There was “not a shred of objective evidence” to support claims that the delay in prosecution had caused Mr Kennedy anxiety, Mr Collins argued. Mr Kennedy had been taken to hospital after his arrest and the fact none of his medical records were brought into evidence in the High Court hearing was “extraordinary”.