Monday 11 December 2017

Businessman Jim Kennedy's legal challenge over evidence from Frank Dunlop opens

Tim Healy

BUSINESSMAN Jim Kennedy is bringing a legal challenge against a judge's refusal to require former government press secretary Frank Dunlop to give sworn testimony for the purpose of criminal proceedings against him.

Mr Kennedy denies 16 charges including giving sums of money to certain politicians as an inducement or reward for voting in favour of motions to rezone certain lands at Carrickmines, Co Dublin, in 1992 and 1997.

The chief prosecution witness is Mr Dunlop and the case is due to be heard on June 4.

The hearing of Mr Kennedy's challenge over Mr Dunlop's testimony opened before Mr Justice Gerard Hogan in the High Court.

The DPP is opposing the application.

Today, Declan McGrath SC, for Mr Kennedy, said the Circuit Court was asked last November for an order under  Criminal Procedure Act requiring Mr Dunlop to appear before a District Court judge to give his evidence by sworn deposition.

Mr Kennedy wanted Mr Dunlop deposed because evidence given by Mr Dunlop at the Mahon tribunal was inconsistent with, and contradicted, a witness statement by him as part of the DPP's case against Mr Kennedy, counsel said.

There was "no way these two versions can stand" as they "are diametrically opposed to each other" counsel continued.

Mr Kennedy wants Mr Dunlop deposed in order to reconcile the "fundamental inconsistencies" contained in the two contradictory statements, Mr McGrath said.

If Mr Dunlop were to agree in his deposition deposition that the correct version of events was that given by him to the Mahon tribunal, a number of charges against Mr Kennedy must fall, he said.

Counsel said another reason they want Mr Dunlop deposed is because his statement of evidence is "very spartan and sketchy when it came to details" as to the circumstances under which certain alleged payments were made.

Last December, Judge Martin Nolan refused Mr Kennedy's application to have Mr Dunlop deposed and the judicial review proceedings arise from that refusal.

Mr McGrath said Mr Kennedy believes there is a risk the trial will be unfair and his client was entitled to full disclosure of the evidence against him as he prepares for trial.

In his proceedings against Judge Nolan and the DPP, Mr Kennedy, Cormorant Quay, Gibraltar, wants orders quashing the refusal to have Mr Dunlop appear before a judge of the District Court and give evidence by way of sworn deposition.

It was their case that Judge Nolan failed to engage with primary submission made on Mr Kennedy's behalf that Mr Dunlop should be deposed counsel said.

Judge Nolan had also failed to give adequate reasons why he rejected the submissions he added.

It is also argued Judge Nolan took into account irrelevant considerations and had committed an error in law that impacted on Mr Kennedy's right to a fair trial.

The case continues.

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