Kennedy v Judge Nolan & DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hogan |
| Judgment Date | 19 March 2013 |
| Neutral Citation | [2013] IEHC 115 |
| Court | High Court |
| Docket Number | [2013 No. 36 JR] |
| Date | 19 March 2013 |
[2013] IEHC 115
THE HIGH COURT
BETWEEN
AND
AND
CRIMINAL PROCEDURE ACT 1967 S7(2)
CRIMINAL PROCEDURE ACT 1999 S4E
CRIMINAL PROCEDURE ACT 1999 S4F(2)
PUBLIC BODIES CORRUPT PRACTICES ACT 1889 S1(2) (UK)
PREVENTION OF CORRUPTION ACT 1916 S4(2) (UK)
ETHICS IN PUBLIC OFFICE ACT 1995 S38
KENNEDY v DPP UNREP HEDIGAN 28.7.2011 2011/30/8292 2011 IEHC 311
KENNEDY v DPP UNREP SUPREME 7.6.2012 2012 IESC 34
FINAL REPORT (MAHON) TRIBUNAL OF ENQUIRY IN TO CERTAIN PLANNING MATTERS & PAYMENTS VOL III 2012 5.02
WILLIAMS, STATE v KELLEHER 1983 IR 112
O (A) v MIN FOR JUSTICE UNREP HOGAN 6.1.2012 2012 IEHC 1
AG, PEOPLE v BOGGAN 1958 IR 67 1 FREWEN 504
CRIMINAL PROCEDURE ACT 1999 4B
CRIMINAL PROCEDURE ACT 1999 4C
CRIMINAL PROCEDURE ACT 1999 4D
CRIMINAL PROCEDURE ACT 1999 4E(4)
CRIMINAL PROCEDURE ACT 1999 S4(A)(1)
CRIMINAL PROCEDURE ACT 1999 S4F(2)
SHERRY, STATE v DISTRICT JUSTICE WINE 1985 ILRM 196 1984/5/1702
CRIMINAL JUSTICE ACT 1999 S4F(1)
DPP v L (D) UNREP CCC 19.7.2002 2002/9/2131
CRIMINAL PROCEDURE ACT 1999 S4G(1)
CRIMINAL PROCEDURE ACT 1999 S4E(1)
CRIMINAL PROCEDURE ACT 1999 S4G(2)
CRIMINAL PROCEDURE ACT 1999 S4F(2)
CRIMINAL PROCEDURE ACT 1999 S4B(3)
CRIMINAL PROCEDURE ACT 1999 S4E(1)
CRIMINAL PROCEDURE ACT 1999 S4E(3)
CRIMINAL PROCEDURE ACT 1999 S4E(6)
DUNNE v GOVERNOR OF CLOVERHILL PRISON 2009 3 IR 378 2009/14/3195 2009 IESC 11
CRUISE v JUDGE O'DONNELL & DPP 2008 3 IR 230 2008 2 ILRM 187 2007/12/2421 2007 IESC 67
HOLLAND, STATE v KENNEDY 1977 IR 193
KILLEEN v DPP & ORS 1997 3 IR 218 1998 1 ILRM 1 1998/23/8845
RSC O.84 r20
CRIMINAL LAW
Practice and procedure
Depositions - Removal of automatic right to depose witness - Jurisdiction of court of trial to direct deposition of witness - Principles to be applied - The State (Holland) v Kennedy [1977] IR 193 and Killeen v Director of Public Prosecutions [1997] 3 IR 218; [1998] 1 ILRM 1 followed - Bambrick v Cobley [2005] IEHC 43, [2006] 1 ILRM 81; Cruise v O'Donnell [2007] IESC 67, [2008] 3 IR 230; Dunne v Governor of Cloverhill Prison [2009] IESC 11, [2009] 3 IR 378; Kennedy v Director of Public Prosecutions [2011] IEHC 311, (Unrep, Hedigan J, 28/7/2011); Kennedy v Director of Public Prosecutions [2012] IESC 34, [2012] 3 IR 744; Lloyds Bowmaker Ltd v Britannia Arrow Holdings Plc [1988] 1 WLR 1337; [1988] 3 All ER 178; O v Minister for Justice [2012] IEHC 1, (Unrep, Hogan J, 6/1/2012); The People (Director of Public Prosecutions) v DL (Unrep, Carney J, 19/7/2002); The People (Attorney General) v Boggan [1958] IR 67; The State (Sherry) v Wine [1985] ILRM 196 and The State (Williams) v Kelleher [1983] IR 112; [1983] ILRM 537 considered - Criminal Procedure Act 1967 (No 12), s 4F - Criminal Justice Act 1999 (No 10), s 9 - Decision quashed and matter remitted to Central Criminal Court (2013/36JR - Hogan J - 19/3/2013) [2013] IEHC 115
Kennedy v Nolan
Facts: The Court considered when a court of trial to whom an accused person has been returned on indictment should be prepared to direct that a witness be deposed before the District Court in advance of the trial. The Court considered the operation of s. 4F(2) Criminal Justice Act 1999 and the object and purpose of the procedure therein as applicable to a businessman who stood accused of charges of corruption, where the prosecution case depended entirely upon the credibility of a person who was engaged in lobbying of councillors on behalf of land developments. Preliminary objections had been raised on behalf of the Director of Public Prosecutions relating to inter alia prejudice and material non-disclosure.
Held by Hogan J. that the Court was left with no other option but to quash the ruling of His Honour Judge Nolan and remit the matter to him. Judge Nolan had applied the wrong test so far as s. 4F(2) was concerned. The power to order depositions was designed to be used in cases where the prosecution or defence could fairly demonstrate that benefit would derive from them. The court of trial had jurisdiction to order depositions. This was manifestly one of those cases.
1. Under what circumstances should the court of trial to whom an accused person has been returned for trial on indictment be prepared to direct that a witness be deposed before the District Court in advance of that trial? This, in essence, is the question which is posed in this application for judicial review.
2. Prior to 1999, the position was straightforward, in that an accused had a statutory right by virtue of s. 7(2) of the Criminal Procedure Act 1967 ("the 1967 Act") to have a witness deposed before the District Court. This sub-section provided:
"The prosecutor and the accused shall each be entitled to give evidence on sworn deposition and also to require the attendance before the [District Judge] of any person, whether included in the supplied list of witnesses or not, and to examine him by way of sworn deposition."
3. All of this was changed with the abolition of the former preliminary examination procedure by s. 9 of the Criminal Justice Act 1999 ("the 1999 Act") and its replacement with a new procedure whereby the return for trial of an accused charged with indictable offence which is not being dealt with summarily to the court of trial is, in substance, automatic. Thus, instead of the former procedure whereby the District Court was charged with the task of determining whether there was a sufficient case to answer, the accused can now apply to the court of trial to have the charges dismissed: see s. 4E of the 1967 Act (as inserted by s. 9 of the 1999 Act). A further change is that an accused may no longer insist on having a witness deposed as of right, but he or she may rather apply to the court of trial for this purpose and that court, should it consider that it is in the interests of justice to do so, may direct that such a witness be deposed before the District Court: see 4F(2).
4. Before proceeding to any examination of the import of the changes effected by the 1999 Act, it is necessary first to consider the background facts. Mr. Kennedy is a businessman who stands charged with some sixteen separate offences of corruption under s.1(2) of the Public Bodies Corrupt Practices Act, 1889 (as amended by s.4(2) of the Prevention of Corruption Act 1916 and s. 38 of the Ethics in Public Office Act 1995). In essence, it is contended that Mr. Kennedy made corrupt payments to various named local authority councillors on various dates in 1992 and 1997 to influence rezoning motions which were coming before Dublin City Council or, as the case may be, Dún Laoghaire Rathdown County Council.
5. Mr. Kennedy was originally arrested on these charges in October 2010 and a book of evidence was served on him on 28 th October 2010. He was returned for trial to the Circuit Court where a trial date was originally scheduled for 5 th October 2011. In the interval Mr. Kennedy sought to prohibit his trial on grounds of undue delay. This application for judicial review was originally rejected by this Court (Hedigan J.) in a judgment delivered on the 28 th July 2011: [2011] IEHC 311.
6. The applicant appealed immediately to the Supreme Court and that Court granted a stay on the Circuit Court proceedings on 31 st July 2011. The Supreme Court (by a majority) dismissed his appeal on 7 th June 2012: [2012] IESC 34. A trial date was subsequently fixed for June 2013.
7. It is common case that the prosecution case depends entirely on the credibility of a Mr. Frank Dunlop, a former Government press secretary and public relations consultant who engaged in the lobbying of councillors on behalf of land developers. Mr. Dunlop now alleges in effect that he was the conduit of payments to councillors on the part of Mr. Kennedy, so that in his witness statement he states that "it was my understanding that Mr. Kennedy expected me to pay money on his behalf to county councillors to secure their support for rezoning."
8. Much of this ground has already been the subject of detailed investigation by the Flood/Mahon Tribunal of Inquiry which investigated allegations of planning corruption in the Dublin region. It is not disputed but that Mr. Dunlop has given contradictory versions of his activities. In some cases it seems that Mr. Dunlop maintained that he received payments which were later given by him to councillors as legitimate political donations. In other cases it appears that Mr. Dunlop contends that the payments were corruptly given to and received by the councillors. Indeed, at the Tribunal Mr. Dunlop maintained (in February 2003) that he spent the IR£25,000 he says he received from Mr. Kennedy in 1992 for the purposes of promoting a rival development project of another individual and did not use this money for the purposes of bribing councillors.
9. While Mr. Dunlop famously changed his overall story in the course of giving evidence before the Tribunal in April 2000 - to the point whereby he now acknowledged that he had corruptly paid councillors with a view to influencing their votes - the Flood/Mahon Tribunal concluded that "Mr. Dunlop did not make the transition from being an untruthful witness to a truthful witness with any sense of completeness" and that "in many and important and fundamental respects, Mr. Dunlop continued, post April 2000, to actively and purposely mislead the Tribunal": Final Report of the Tribunal of Inquiry into Certain Planning Matters and Payments (Vol. III)(2012) at para. 5.02. Indeed, at the hearing of the application before the Circuit Court, counsel for the Director at that hearing, Mr. Sean Gillane S.C., did not resile in the...
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