Written Complaint to a Judge cost a man €17,500

national | rights, freedoms and repression | other press Wednesday April 30, 2008 19:09 by Justin Morahan

Judge accepts the word of Two Other Judges in Making the Award

ONE-SIDED REPORT OF CASE INVOLVING JUDGE

Yesterday, 29 April, the report of a case for defamation in several national newspapers failed to cover in a fair manner much of what happened in Dublin Circuit Court on Monday but gave a one-sided account which favoured the Plaintiff (a Judge) and denied the Defendant fair reportage.
Journalist Ray Managh wrote a lopsided piece pubished in most morning newspapers in one form or another. In all cases the reports make no mention of the case for the Defence but recount at length much of tthe Presiding Judge's remarks and the Prosecution's case. This report tries to redress the balance in the interests of fair reportage. Any errors are regretted and are entirely the reponsibility of this author

PERSONS INVOLVED

Presiding Judge: Matthew Deery, President of the Circuit Court

Plaintiff: Judge Patrick Brady, a District Court Judge

Witness for the Prosecution: Judge Michael White

Defendant: Kevin Tracey, representing himself (a lay litigant)

Witness for the Defence: Karen Tracey: wife of Kevin

Mentioned in the proceedings but not present in Court: High Court President Judge Joseph Finnegan, recipient of the letter of complaint, District Court President Miriam Malone who received the letter from Judge Finnegan for investigation.

BEFORE THE CASE WAS HEARD:

Kevin Tracey asked Judge Deery in order to avoid bias or the perception of bias, to have the matter taken out of the Circuit Court and transferred to the High Court with a jury, because the actions of another Circuit Court Judge, Michael White, would be central to the case.
Judge Matthew Deery refused this request. He commented that no juries could sit on defamation cases in the Circuit Court since 1971, and said the Plaintiff could take the case in whichever court he wished.

Again to avoid bias or the perception of bias, Kevin Tracey requested the President of the Circuit Court, Judge Matthew Deery, to step down (recuse himself) from hearing and adjudicating on the case in the Circuit Court. The actions of another Circuit Court Judge Michael White, would be central to the case. Judge Matthew Deery refused this request without explanation.

A request that the matter be struck out or dismissed as vexatious and frivolous.was also refused by Judge Deery.

(In the course of the trial, Kevin Tracey again asked the Judge to recuse himself on the grounds that he (Judge Deery) was making the Prosecution's arguments for them but the Judge again refused this application without giving reasons)

Judge Deery first refused Mr Tracey's requests in the "list court" where cases are assigned by the President in the morning to a panel of three judges. Participants are advised that all applications must be made in this court.

When the President later allocated the case to himself, before the case came to hearing, Mr Tracey repeated his applications in this court of hearing, before the same Judge, adding to his reasons for the applications this time that the presiding Judge himself, Judge Deery, had received a complaint from him ( Kevin Tracey) that was indirectly associated with the case, a complaint which Mr Tracey said was never replied to. Again to avoid bias or the perception of bias. This application was yet again refused by Judge Deery

THE PROSECUTION'S CASE:

A case in which Judge Michael White had been a defendant, and Kevin Tracey the plaintiff, had come before Judge Brady in the District Court about 4 years ago.The letter written by the Defendant to Judge Finnegan had to do with that case. In the letter, Mr Tracey had said that Judge Brady had allowed Judge Michael White, (known to him) to enter his room and remain there during the case. This letter was read out in court. The letter had also stated that when Mr Tracey mentioned the presence of Judge White in Judge Brady's room, Judge Brady had threatened him with contempt of court and called the Garda to remove him. He had referred in the letter to the Judge's behaviour as "appalling" and "disgraceful". Mr Tracey had eventually withdrawn the inference that Judge Brady might have discussed the case with Judge White but had refused to withdraw the allegation that Judge White had been in his room. (For fuller coverage see printed mainstream media accounts)

Judge Brady gave evidence that Judge White had not entered his room.

As prosecution witness, Judge White gave evidence that he had not entered Judge Brady's room

Neither Judge Joseph Finnegan nor Judge Miriam Malone, who were the recipients of the letter, appeared in court.

THE CASE FOR THE DEFENCE

Kevin Tracey pleaded that for defamation to occur there must be three ingredients, all of which must be present before a statement is deemed defamatory

1. it must be published,
2. it must refer to the complainant and
3. it must be false.

1 He denied that his letter had been published but said that it was covered under qualified privilege and was fair comment.

He reminded the Court that this was not a letter published in a newspaper but a private complaint to a person in authority, intended to be seen only by him, and, until now, seen by only two people, apart from the plaintiff.

He said that it was not defamatory to make a complaint to a person in order to seek redress.

He had made a complaint on this matter four years ago to the President of the High Court (at the time of the incident) without getting a result.

2. He accepted that his letter referred to Judge Brady.

3. He stated that the complaint was true.

Kevin Tracey gave sworn testimony that he had seen Judge White enter Judge Brady's room .

Karen Tracey gave sworn testimony that she had seen Judge White enter Judge Brady's room.
Several times, under intense cross-examination from Eoin McCullough, SC, she reiterated; "What I am saying is the truth. I saw Michael White going into Judge Brady's room".

JUDGE DEERY'S JUDGEMENT

Judge Deery had heard Kevin Tracey and Karen Tracey swear that they saw Judge Michael White enter Judge Brady's room and he had heard Judge Brady and Judge White swear that this did not happen.

Judge Deery accepted the word of the other two Judges and awarded damages of €17,500 and costs to Judge Brady against the lay litigant.