By Aisling Byrne
The Supreme Court has rejected a High Court finding that a District Court judge was required to have sworn evidence before extending the prosecution's time to serve a Book of Evidence in proceedings against Eamon Dunne.
Mr Justice Kearns held that section 4B(3) of the Criminal Procedure Act 1967 contains no rule requiring formal evidence in every application for extra time. A District Court judge may instead be satisfied by a proper explanation from solicitors, counsel or other responsible representatives, while retaining discretion to insist on evidence where an explanation is inadequate or repeated.
Dunne had been arrested on November 2nd, 2007 and charged with others with conspiring to commit a crime punishable by law, namely the alleged theft of more than €900,000. He was remanded in custody after appearing at Kilmainham District Court three days later and was subsequently refused bail in both the District Court and High Court.
The prosecution later sought additional time to prepare the Book of Evidence, citing a large and complex file involving CCTV, telephone records, hundreds of statements, forensic material, fingerprint analysis and around 60 interviews.
On January 3rd, 2008, Dunne's lawyers argued that those assertions were not evidence and could not satisfy the statutory test. The prosecution offered to call a Garda witness, but the defence objected that meaningful cross-examination would not be possible.
The High Court subsequently ordered Dunne's release under Article 40.4.2 of the Constitution. Mr Justice Edwards concluded that, once the factual basis for an extension was disputed, it had to be proved by formal sworn evidence and that the further remand was therefore invalid.
The Supreme Court disagreed. Mr Justice Kearns said routine procedural applications are commonly decided on explanations rather than evidence and that imposing a universal evidential requirement would be impractical. He stressed, however, that a significantly higher obligation rests on the prosecution where an accused remains in custody.
The court concluded that Dunne had not established that his detention was unlawful.