Charges of corruption against four councillors and a businessman have been withdrawn by the State due to the medical condition of the chief prosecution witness.
On day 13 of the trial, Sean Gillane, prosecuting, told Judge Mary Ellen Ring the DPP wished to enter a “nolle prosequi”, meaning the charges are struck out and there will be no retrial.
The charges related to allegations that Jim Kennedy used political lobbyist Frank Dunlop to bribe councillors to vote to rezone potentially valuable land.
The prosecution’s case was based on the testimony of Mr Dunlop, who said he acted as a middleman for Mr Kennedy in bribing the councillors to vote to rezone the land at Jackson Way in Carrickmines.
Twice during his evidence Mr Dunlop, aged 65, became unwell and had to be brought to hospital.
The State’s decision yesterday to withdraw the case came two days after Mr Dunlop’s latest episode when he asked to be excused “for a very good reason”.
It is understood that Mr Dunlop is suffering from a serious heart condition which is unlikely to improve enough for him to give evidence in any retrial.
Mr Kennedy, aged 66, of Cormorant Way, Queens Quay, Gibraltar, had pleaded not guilty at Dublin Circuit Criminal Court to 16 counts of making corrupt payments between Jun 1992 and Oct 1997 to members of Dublin County Council to rezone land as industrial.
Dún Laoghaire-Rathdown county councillor Tony Fox, aged 72, of Mountainview Park, Churchtown, Dublin, and former councillors Colm McGrath, aged 56, of Swiftwood, Saggart; Donal Lydon, aged 74, of Santo Antonio, Stillorgan Park Avenue; and Liam Cosgrave, aged 57, of Merrion Park, Blackrock; had pleaded not guilty to corruptly receiving money at various locations in Dublin on dates in Jun 1992 and Oct 1997 as inducements to rezone lands as industrial.
The case against Mr Lydon, who is also a former senator, was withdrawn two days ago after testimony from Mr Dunlop was judged to be prejudicial against him. He was remanded on bail for retrial but since yesterday’s application, he also no longer faces any charges.
Judge Ring told the jury that “matters have reached a stage where a decision was needed” and that the trial would not be continuing. She thanked them for their service and excused them from jury duty for seven years.
Mr Dunlop gave evidence for several days at the start of the trial four weeks ago before becoming ill and being hospitalised. There were doubts at that stage about whether the trial could continue but a week later, he resumed his testimony.
However after half a day in the witness box on Monday, he asked to be excused for the rest of the day. The court then requested a medical report on Mr Dunlop’s ability to continue.
After reading the report Judge Ring said “words and phrases jump out” and that there had to be “a sense of reality”.
“He’s not getting any younger and his condition isn’t the type that tends to get better,” the judge said.
Michael O’Higgins, defending Mr Kennedy, said that according to the report, Mr Dunlop’s condition has some relation to stress and “a court event is clearly a stressful event”.
Mr Gillane said he would ask Mr Dunlop’s cardiologist how long would be needed before a retrial could take place. However, after a short adjournment, he returned and said charges were being completely withdrawn.
On Mr Dunlop’s last day of evidence, he was questioned by Mr O’Higgins about his diary which had been given to the Mahon Tribunal.
Mr Dunlop admitted obscuring references to property developer Owen O’Callaghan and the late politician Liam Lawlor. He said he did this because he did not think a business deal involving them was any of the tribunal’s business.
During the cross-examination, he made reference to a visit to Mr Lydon’s office. This visit did not form part of the charge against Mr Lydon.
This led to an application in the absence of the jury during which Mr O’Higgins called Mr Dunlop a “toxic witness”. He said the manner in which Mr Dunlop was giving evidence was “a disgrace”.
“He has used the intervening time to devise ways to slyly damage other parties in this case in any way possible,” said Mr O’Higgins.
Judge Ring agreed she could not “reign in what Mr Dunlop said without causing more damage” and discharged Mr Lydon from the trial.
She then warned Mr Dunlop to answer only the questions asked and to keep within the terms of the questions.
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