Kemmy v Ireland

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice McMahon
Judgment Date25 February 2009
Neutral Citation[2009] IEHC 178
Docket Number[2005 No. 3481 P]
Date25 February 2009
Kemmy v Ireland & AG

BETWEEN

JOSEPH KEMMY
PLAINTIFF

AND

IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS

[2009] IEHC 178

[No. 3481 P/2005]

THE HIGH COURT

CONSTITUTIONAL LAW

Personal rights

Damages - Right to fair trial - Claim for damages against State for infringement of constitutional right to fair trial - Conviction set aside by Court of Criminal Appeal after term of imprisonment served - Denial of fair trial by trial judge accepted by Court of Criminal Appeal - Applicant not eligible to apply for compensation pursuant to statute - Liability of State - Separation of powers - Constitutional failure by judicial organ of State - Whether State vicariously liable - Vicarious liability principles - Relationship between State and judge acting in judicial capacity under Constitution - Whether State directly liable for acts of judiciary - Independence of judiciary - Judicial immunity - Policy considerations - Reasons for judicial immunity - Limits of judicial immunity - Whether plaintiff failed to get fair trial - Whether State's duty to guarantee plaintiff right to fair trial absolute - Meaning of term unfair trial - Corrective mechanisms to address errors by judges - Whether error committed by judge amounted to breach of constitutional right - Whether right to fair trial includes appeal process - Whether process to which plaintiff subjected unfair - Commissioner of Public Works v Kavanagh [1962] IR 216; Crotty v An Taoiseach [1987] 1 IR 713; Byrne v Ireland [1972] 1 IR 241; Meskell v Córas Iompair Éireann [1973] IR 121; Kennedy v Ireland [1987] IR 587; Redmond v Minister for Environment (No 2) [2004] IEHC 24, [2006] 3 IR 1; Hanrahan v Merck Sharp & Dohme Ltd [1988] ILRM 629; W v Ireland (No 2) [1997] 2 IR 141; Blascaod Mor Teo v Commissioners of Public Works (No 4) [2000] 3 IR 565; Pine Valley Developments v Minister for Environment [1987] IR 23; Moynihan v Greensmyth [1977] IR 55; Deighan v Ireland [1995] 2 IR 56; Desmond v Riordan [2000] 1 IR 505; Beatty v Rent Tribunal [2005] IESC 66, [2006] 2 IR 191; Macaulay & Co Ltd v Wyse-Power (1943) 77 ILTR 61; Flynn v Minister for Justice (Unrep, Ó Caoimh J, 30/4/2003); Hinds v Liverpool County Court [2008] FLR 63; Independent Publishing Company Ltd v AG of Trinidad and Tobago [2004] UKPC 26 ; Forbes v Attorney General of Trinidad and Tobago [2002] UKPC 21 ; Simpson v AG [1994] 3 NZLR 667 ; Upton v Green (No 2) [1996] 3 HRNZ 179; Brown v Attorney General [2005] 2 NZLR 405 ; McKean v AG [2008] 1 LRC 694; Health Board v BC [1994] 5 ELR 27; Moynihan v Moynihan [1975] IR 192; Lynch v Palgrave Murphy Ltd [1964] IR 50; Cork County Council v Health and Safety Authority [2008] IEHC 304, (Unrep, Hedigan J, 7/10/2008); Cassidy v Ministry of Health [1951] 2 KB 343 and D v DPP [1994] 2 IR 465 considered - Maharaj v AG of Trinidad and Tobago (No 2) [1979] AC 385 distinguished - Constitution of Ireland 1937, Articles 6, 34.1, 35.2, 38 and 40.3 - Criminal Procedure Act 1993 (No 40), s 9 - Claim dismissed (2005/3481P - McMahon J - 25/2/2009) [2009] IEHC 178

Kemmy v Ireland

CRIMINAL PROCEDURE ACT 1993 S9

CONSTITUTION ART 40.3

CMSRS OF PUBLIC WORKS v KAVANAGH 1962 IR 216

CONSTITUTION ART 6.2

CROTTY v AN TAOISEACH 1987 ILRM 400 1987 IR 713

BYRNE v IRELAND 1972 IR 241

MESKELL v CIE 1973 IR 121

KENNEDY v IRELAND 1987 IR 587

REDMOND v MIN FOR THE ENVIRONMENT (NO 2) 2006 3 IR 1

HANRAHAN v MERCK SHARP & DOHME LTD 1988 ILRM 629

W v IRELAND (2) 1997 2 IR 141

BLASCAOD MOR TEORANTA v CMRS OF PUBLIC WORKS IN IRLAND & ORS 2000 3 IR 565

PINE VALLEY DEVELOPMENT LTD v MIN FOR ENVIRONMENT 1987 IR 23

MOYNIHAN v GREENSMYTH 1977 IR 55

DEIGHAN v IRELAND 1995 2 IR 56

SIRROS v MOORE 1975 QB 118

MAHARAJ v AG OF TRINIDAD & TOBAGO (NO 2) 1979 AC 385

RYAN v IRELAND 1989 ILRM 544 1989 IR 177 1989 3 711

CONSTITUTION OF TRINIDAD & TOGBAGO ART 6.1

NEW ZEALAND BILL OF RIGHTS ACT 1990 ART 24.3A

INDEPENDENT PUBLISHING CO LTD & ANOR v AG OF TRINIDAD & TOBAGO 2004 UKPC 26

FORBES v AG OF TRINIDAD & TOBAGO 2002 UKPC 21

SIMPSON v AG 1994 3 NZLR 667

UPTON v GREEN (NO 2) 1996 3 HRNZ 179

BROWN v AG 2005 2 NZLR 405

HINDS v AG OF BARBADOS 2002 1 AC 854

MCKEAN v AG 2008 1 LRC 694

AG v UDOMPUN 2005 3 NZLR 204

CONSTITUTION ART 6

CONSTITUTION ART 34.1

CONSTITUTION ART 38

CONSTITUTION ART 35.2

HEALTH BOARD v BC & LABOUR COURT 1994 5 ELR 27

MOYNIHAN v MOYNIHAN 1975 IR 192

LYNCH v PALGRAVE MURPHY LTD 1964 IR 150

CORK CO COUNCIL v HEALTH & SAFETY AUTHORITY & ANOR UNREP HEDIGAN 7.10.2008 2008 IEHC 304

CASSIDY v MINISTRY FOR HEALTH 1951 2 KB 343 1951 1 AER 574 1951 1 TLR 539

GRUBB THE LAW OF TORT 2002 P67

CONSTITUTION ART 40.3.1

KELLY IRISH CONSTITUTION 4ED 2003

D v DPP 1994 2 IR 465

1

JUDGMENT delivered by Mr. Justice McMahon on the 25th day of February, 2009

Introduction
2

The plaintiff was convicted of rape and sexual assault at the Central Criminal Court on the 16 th December, 2000. He was remanded in custody and on the 26 th April, 2001 was sentenced to 3 years imprisonment for the rape and 1 year for the sexual assault to run concurrently from the 16 th December, 2000, with the balance of the sentence unserved as of the 16 th December, 2001 suspended. On the 1 st December, 2003, Fennelly J., in an ex tempore judgment in the Court of Criminal Appeal, set aside Mr. Kemmy's conviction and did not order a retrial.

3

The Court dealt with the second of the substantive trial process issues that were raised in the appeal in the following language:

"The jury retired and had been in deliberation for a day and a half and they returned to Court and made a request to the trial judge to be allowed to see the transcript of the evidence of the complainant."

4

...

5

The trial judge decided to adopt the following course - he said that instead of reading a large number of pages of the entire transcript of the evidence which would have included both the questions and the answers, he would read his own note of the evidence of the complainant, that would be both her evidence in chief and in cross-examination and that that amounted to some seventeen pages of his notebook and that is what he proceeded to do. So what the jury had then was a complete re-reading of all the evidence of the complainant both, as already stated, in chief and in cross-examination at a time well into the deliberations of the jury and shortly thereafter the jury returned with a verdict convicting the accused.'

6

Fennelly J. continued at pages 3 and 4 of the judgment:

"In the view of the Court to do what the judge did in the circumstances of this particular trial and it should be emphasised - in the circumstances of this particular trial - was unfair and did render the trial unfair. It should be pointed out that this was a particular case where the issue of consent was highly central to the entire question of the guilt or innocence of the accused and that to read only the complainant's evidence after such an interval of time entirely in isolation without reading also even in summary the evidence of the accused created an imbalance which must have created a serious risk of confusion in the minds of the jury at least of emphasising the complainant's evidence at the expense of the evidence of the accused....and in those circumstances the court has decided to treat the application for leave to appeal as the appeal and it will set aside the conviction and will not order a retrial."

7

By the time the plaintiff's conviction was quashed on the grounds that the manner in which his trial was conducted was 'unfair and did render the trial unfair', the plaintiff had long ago served his term of imprisonment and had been released. Therefore, the plaintiff contends that he suffered deprivation of liberty, loss and damage as a result of the manner in which his trial was conducted and the quashing of his conviction did not remedy or diminish these losses. Since the plaintiff's conviction was not quashed on grounds that a newly discovered fact showed that there had been a miscarriage of justice, the plaintiff was not eligible to apply for compensation pursuant the s. 9 of the Criminal Procedure Act 1993.

8

The plaintiff's primary claim in these proceedings is for damages against the State for infringement by the State, through its judicial organ, of the plaintiff's constitutional right to a fair criminal trial. It is important to emphasise that the plaintiff's complaint is that he did not receive a "fair trial" from the trial judge and that this was a breach of his constitutional right. Had the Court of Criminal Appeal found that the trial judge had merely committed an error of law, counsel for the plaintiff conceded at the hearing that he would not have brought the action. The right to a fair trial is one of the unenumerated personal rights guaranteed in the Constitution at Article 40.3. In addition, and in the alternative, the plaintiff also claims damages against the State for the negligence and/or breach of duty of servants or agents of the State and if necessary, a declaration that any common law rule of law which purports to grant judges of the High Court of Ireland personal immunity from suit in respect of acts done in the performance of their judicial duty is subject to and in accordance with the plaintiff's rights under the Constitution and is unconstitutional insofar as it purports to deny the plaintiff his right to seek damages against the State. The plaintiff seeks such further or ancillary declaratory or other relief as the court deems appropriate.

9

The defendants deny that they have any liability to compensate the plaintiff for any loss or damage that he is alleged to have suffered as a result of his detention under orders made by the Central Criminal Court after the trial. The defendants also deny that the learned trial judge is personally...

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