A retired clerical officer in the Department of Justice has brought High Court proceedings to stop his trial on charges of corruptly accepting or agreeing to accept gifts as an inducement to showing favour to a number of Chinese people.
John Kennedy, Trees Avenue, Mount Merrion, Dublin, yesterday secured an interim order from Mr Justice Michael Peart restraining his trial, which had been due to proceed on Thursday before Dublin Circuit Criminal Court.
In applying for leave yesterday to bring the judicial review challenge, John Rogers SC, for Mr Kennedy, said the relevant provisions of the 2001 Act under which Mr Kennedy is charged displace the constitutional presumption of innocence in that they put an onus on an accused office worker to prove that any gifts received by were not corrupt.
Mr Rogers said Section 4 of the Act obliges a trial court to convict an accused if they failed to give exculpatory evidence.
This, he argued, shifted the legal burden of proof on to an accused and imposed an obligation on them to give evidence at trial and breached their right to silence.
This conflicted with the Constitution and also infringed the provisions of the European Convention on Human Rights, he said.
Mr Kennedy is charged with a number of offences relating to four Chinese people which allegedly occurred while he was employed as a clerical officer of the Minister for Justice. He is pleading not guilty to all the counts, his solicitor stated.
The charges include corruptly accepting/agreeing to accept a gift of €500 as an inducment to showing favour to Lin Yang Feng and a similar charge in relation to Zheng Jirong.
A further charge alleges Mr Kennedy corruptly accepted or agreed to accept a gift of a bottle of wine and a meal voucher for two as an inducement to showing favour to Hao Zijing while a similar allegation is made against Mr Kennedy in relation to Ben Xiao Fei. In his forthcoming action, Mr Kennedy is contending that provisions of the Prevent of Corruption (Amendment) Act 2001 are unconstitutional and in breach of the European Convention on Human Rights.
In an affidavit, Yvonne Bambury, solicitor for Mr Kennedy, said he was returned for trial to the Dublin Circuit Criminal Court on foot of five charges under the Prevention of Corruption Act 1906, as amended by the Prevention of Corruption (Amendment) Act 2001.
That amendment provided that "an agent or any other person" who "corruptly accepts or obtains" or "corruptly agrees to accept or attempts to obtain" either for themselves, or another person, any gift, consideration or advantage as an inducement to, or reward for, or otherwise on account of, the agent doing any act or making any omission in relation to their office or position of their principal's affairs or business, shall be guilty of an offence.
Mr Justice Peart returned the matter to March 28th next for mention.
