Kemmy -v- Ireland & Anor, [2009] IEHC 178 (2009)

Docket Number:2005 3481 P
Party Name:Kemmy, Ireland & Anor
Judge:McMahon J.




IRELAND AND THE ATTORNEY GENERALDEFENDANTSJUDGMENT delivered by Mr. Justice McMahon on the 25th day of February, 2009


The plaintiff was convicted of rape and sexual assault at the Central Criminal Court on the 16th December, 2000. He was remanded in custody and on the 26th April, 2001 was sentenced to 3 years imprisonment for the rape and 1 year for the sexual assault to run concurrently from the 16th December, 2000, with the balance of the sentence unserved as of the 16th December, 2001 suspended. On the 1st 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.

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.


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.'

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."

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.

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.

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 liable to the plaintiff for the alleged or any negligence of breach of duty in the manner in which he conducted the plaintiff's trial. In the absence of any primary liability, none of the defendants are vicariously liable to the plaintiff for the action of the trial judge. In this connection it is further denied that judicial immunity from suit is subject to or secondary to any alleged rights of the plaintiff under the Constitution and the defendants deny that judicial immunity from suit in respect of acts done in the performance of judicial duty is unconstitutional.

The case was heard in Dundalk on Wednesday, 21st January, 2009 and Thursday, 22nd January, 2009. Since the facts were agreed, no witnesses were called. It was also agreed between the parties that the liability issue should be determined first, and only if the plaintiff was successful, would evidence be called in respect of the appropriate level of damages. Finally, the question of causation was also put back and was to be dealt with the damages issue if the court found in favour of the plaintiff.

Liability of the State Generally

The State is a legal person separate and distinct from its citizens, in a similar way that a company is a legal entity separate and distinct from its shareholders. It may sue and be sued as a juristic person and it has the capacity to hold property (Commissioner of Public Works v. Kavanagh [1962] I.R. 216).

Although the term "the State" is not expressly defined in the Constitution, it is created by the Constitution and its characteristics can be discerned therefrom. In the Commissioner of Public Works v. Kavanagh (Supra) O'Dalaigh J. observed that:

"…in 1937 Saorstát Éireann was supplanted by the new State under the Constitution of Ireland…"

"The State" is an abstract concept but it exercises its powers and discharges its duties and obligations through its three constitutional organs, namely its legislative, executive and judicial organs. Article 6.2 of the Constitution provides that the State's powers are "exercisable only by or on the authority of the organs of State established by this Constitution". Referring to Article 6 of the Constitution, Finlay C.J. stated in Crotty v. An Taoiseach [1987] 1 I.R. 713, at p.772 that:

"The separation of powers between the legislature, the executive and the judiciary, set out in Article 6 of the Constitution, is fundamental to all its provisions… It involves for each of the three constitutional organs concerned not only rights but duties also; not only areas of activity and function, but boundaries to them as well."

In Byrne v. Ireland [1972] 1 I.R. 241, the Supreme Court held that the State could be sued for damages in tort and rejected the argument that the State had inherited the Crown's common law immunity from liability. As Budd, J. at p. 297 put it "the State was not above the law of the Constitution but was subject to it". The court observed that since the Constitution expressly provided for immunity for specific organs of the State in specific circumstances, this strongly implied that the Constitution did not intend to confer other immunities. Walsh J. held at p. 264 as follows:-

The State must act through its organs but it remains vicariously liable for the failures of these organs in the discharge of the obligations, save where expressly excluded by the Constitution. In support of this it is to be noted that an express immunity from suit is conferred on the President by Article 13, s. 8, subs. 1, and that a limited immunity from suit for members of the Oireachtas is contained in Article 15, s. 13, and that restrictions upon suit in certain cases are necessarily inferred from the provisions of Article 28, s. 3, of the Constitution.

I have no difficulty in accepting these statements as accurate expressions of the law subject to one proviso. Because of the express recognition in the Constitution itself that the judiciary is independent in the exercise of its judicial functions and is subject only to the Constitution itself and the law, the position of the judiciary, as the judicial organ of the State is different from the other organs that is, the executive and the legislature. In relation to the liability of the judiciary, and the liability of the State for the wrongs of the judges, following from its constitutional independence, I am of the view first, that the State is not vicariously liable for the wrongs of the judges in exercising their judicial functions and second, that the judges have immunity from suit in respect of failures in the discharge of their functions. I will return to these issues later in this judgment where I will expand on my reasons for reaching these conclusions.

It is also clear, as the plaintiffs point out, that as well as the State being vicariously...

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