The High Court has quashed a Circuit Court ruling refusing an application to take evidence in advance from Frank Dunlop, a central prosecution witness in corruption proceedings against businessman James Kennedy, and remitted the matter for reconsideration.
In a judgment delivered on 19 March 2013, Mr Justice Hogan found that Judge Martin Nolan had applied too restrictive a test when refusing the application. The High Court held that a deposition under section 4F of the Criminal Procedure Act 1967, as amended, need not be necessary to protect the accused’s right to a fair trial. The procedure may be appropriate where a party can show reasonable grounds for it and the application is not for a collateral or ulterior purpose.
Kennedy faces 16 charges alleging corrupt payments to local authority councillors in 1992 and 1997 to influence rezoning motions before Dublin City Council or Dún Laoghaire Rathdown County Council. The allegations have not been determined in a criminal trial. The judgment records that the prosecution case depends on Dunlop, who alleges that Kennedy expected him to pass money to councillors. Dunlop has given differing accounts of his activities and previously pleaded guilty to corruption charges arising from matters examined by the Flood/Mahon Tribunal. He was sentenced to two years in prison in 2009.
The Circuit Court refused the defence application in December 2012. Judge Nolan considered that Kennedy had the book of evidence, substantial disclosure and access to Dunlop’s extensive questioning before tribunals, and could cross-examine him at trial. He concluded that refusing a deposition would not inhibit Kennedy’s right to a fair trial.
Justice Hogan said the statutory test was broader. He noted that a deposition could help an accused assess a later application to dismiss charges for lack of a sufficient case, and could be admitted at trial in specified circumstances if the witness later became unavailable. The High Court judgment also identified possible value in clarifying which account Dunlop would give at trial and examining his earlier evidence and the timing of his present account.
The court did not direct that Dunlop be deposed. It quashed Judge Nolan’s ruling and sent the application back to him for a fresh assessment under the correct legal test. The judgment states that Kennedy’s fair-trial right would not itself be jeopardised if no deposition were taken, while holding that the statutory procedure must be considered on its own terms.