The Supreme Court dismissed James Kennedy’s appeal against a decision allowing his prosecution to proceed, in a judgment delivered by O’Donnell J on 7 June 2012.
O’Donnell J agreed with the Chief Justice that the Director of Public Prosecutions was entitled to wait until Frank Dunlop’s prosecution had taken place before proceeding with the prosecution of the relevant councillors and Kennedy. He said Kennedy had not established a risk of an unfair trial or shown prejudice, and that the balance favoured allowing the prosecution to proceed.
The judgment also addressed Kennedy’s argument concerning a statement by the trial judge. Agreeing with Fennelly J’s analysis, O’Donnell J said a reasonable observer would not have a reasonable apprehension that the judge was biased, considering the judge’s further statement that he would disregard the material, his conduct of the trial and his judgment. O’Donnell J said such a concern should be raised firmly and courteously at the time, or soon afterwards. He reserved whether failing to raise it then would prevent a later challenge.
On applications to prohibit a trial, O’Donnell J agreed with Clarke J that challenges should be presented and analysed more precisely. He also agreed with Clarke J’s observations about trial courts considering documents over which privilege is claimed. He said the “real and substantial risk” test deserved further consideration by courts, lawyers and legal academics, and raised whether fairness issues might in some cases be decided by the trial court in the first instance rather than through pre-emptive judicial review.
On delay, O’Donnell J said the right to a speedy trial was distinct from the overall right to a fair trial and focused primarily on the period between charge and trial. He said there was no general right to be speedily or efficiently investigated, while acknowledging that efficient investigations were desirable as a matter of public policy. He did not reach a concluded view on the particular facts concerning the speed of Dunlop’s prosecution, describing the evidence as scanty and that issue as a lesser part of the applicant’s broader challenge. He noted that, under the approaches of Clarke J and the Chief Justice, the trial would not be prohibited on that ground.
The order was to dismiss the appeal. The judgment does not determine the outcome of Kennedy’s prosecution.