Sunday 19 November 2017

Jim Kennedy fails in appeal bid to stop corruption trial

Aodhan O'Faolain

BUSINESMAN Jim Kennedy has lost an appeal against a High Court decision rejecting his bid to stop his trial over alleged corrupt payments for land rezoning.

The charges are in connection with the attempted rezoning of land owned by Jackson Way Properties at Carrickmines, Dublin, in 1992 and the successful rezoning of part of these lands in 1997.



Last July, the High Court's Mr Justice John Hedigan dismissed the challenge brought by Mr Kennedy, who denies all the charges against him.



Today the Supreme Court upheld that decision and dismissed the appeal on a 4-1 majority, clearing the way for the criminal prosecution to proceed against the businessman.



In her judgment, the Chief Justice Ms Susan Denham said the Mr Kennedy had "not established a basis on which his appeal could succeed."



Mr Justice Nial Fennelly, Mr Justice Donal O'Donnell and Mr Justice Frank Clarke all agreed with the Chief Justice's ruling. Mr Justice Adrian Hardiman disagreed.



Mr Kennedy sought orders against the DPP aimed at preventing his trial on grounds including his constitutional and European Convention rights to a fair trial have been breached.



Mr Kennedy, a father of ten, Comorant Wharf, Queensway Quay, Gibraltar is facing 16 charges of making corrupt payments to politicians relating to rezoning motions voted on by Dublin County Council and Dún Laoghaire/Rathdown County Council concerning the land in Carrickmines.



His lawyers claimed his trial should be prohibited because there was, among other reasons, an inexcusable delay before charges were brought against him. The state opposed the appeal and argued no grounds were put forward that would merit prohibiting the trial.



The Supreme Court appeal was brought on a number of grounds including that the State was not entitled to wait to charge Mr Kennedy until key witness Frank Dunlop had been "effectively gentifried" for the purposes of the Kennedy trial.



In May 2009, Mr Dunlop, a former government press secretary, was sentenced to two years in prison after pleading guilty to corruption, with the final six months suspended.



In October 2010, Jim Kennedy was arrested and 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.



He then brought High Court proceedings to try to stop his trial on those charges and that was rejected in the High Court last July.



In her judgment the Chief Justice said "while there was a delay in bringing the charges against Mr Kennedy, the reasons given by the DPP including the unavailability of key witnesses such as Frank Dunlop to give evidence are reasonable," the Chief Justice held.



The Chief Justice further found that the delay in the prosecution of the trial had not prejudiced Mr Kennedy in a way that would justify prohibiting his trial.



The Chief Justice also dismissed Mr Kennedy's claim that Mr Justice Hedigan displayed bias towards Mr Kennedy in remarks he made after inspecting documents not disclosed to Mr Kennedy's lawyers which the DPP has claimed privilege over.



Mr Justice Hedigan said that while he had seen documents that were highly prejudicial to Mr Kennedy he had difficulty in seeing their relevance and were tangential to any issue in Mr Kennedy's proceedings. Mr Justice Hedigan ruled that the public interest in not disclosing those documents outweighed any interest of Mr Kennedy.



In his dissenting judgment Mr Justice Adrian Hardiman said he would have allowed the appeal on the grounds including that there had been a very considerable delay, which he did not believe in this case was excusable, by the State in prosecuting the charges against Mr Kennedy.



A long delayed trial is gravely unfair to a defendant and carries a greatly enhanced risk of miscarriage of justice, he said.



"Experience shows us that when the civil right are trenched upon in relation to one category of person or crime, a similar diminution in the rights of citizens generally tends very soon to follow," he added.



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