Written Complaint to a Judge cost a man
€17,500
national | rights and
freedoms | 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.
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Comments (19 of 19)
Jump To Comment: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19is at the Blog "Three little Dogs" threelittledogs.blogspot.com/
This is the system looking after itself - disgraceful and pure bias.
It does not seem he called the Judge a criminal, rather he made a legitimate complaint and instead of it being acted upon or investigated, he the citizen is arrainged before a non jury "trial" presided over by a Judge who dismissed the testimony of the man and his wife and believed his fellow friends on the bench. What says that about a system which should allow for the lodging of complaints, but instead hauls a man before the courts for having the temerity to complain about a Judge ?
Where be accountability and independent oversight? Not an extravagent demand, rather one would have thought a basic feature of a self proclaimed democracy.
17,500 euro, plus costs I suppose ! Woddy Gutherie comes to mind "..some rob you with a six-gun and some with a fountain pen.."
It does seem to indicate that it would be a bad idea to write any letters of complaint to anyone about anything doesn't it?
The way to defeat qualified privilege in a defamation case is to prove malice.
Judge Deery found that Kevin had acted with malice, but offered no explanation as to why or how this alleged malice was produced. Neither did either of the Judicial witnesses, whom Judge Deery referred to as 'Judge Brady' and 'Judge White' in his ruling. It's funny that malice is even a consideration, when Mr. Tracey was the person who initially took Judge White to the very court that the allegation of defamation later arose from. Interesting too is the fact that Mr. Tracey wrote numerous letters of complaint over the years and yet Judge Brady's pleanary summons and statement of grounds insists that the letter to the president of the High Court was the first such complaint since the matter initially arose in Judge Brady's Courtroom. Under cross examination, Judge Brady admitted that he'd heard that his name had 'been mentioned' in a letter of complaint, written to the president of the District Court, soon after the happenings in his Courtroom. Yet he was it seems, not too curious as to how he was mentioned in this letter. Judge Deery, when he referred to this letter on numerous occassions, pointed out that Mr. Tracey had not specified the nature of the complaint in this letter of complaint. Whilst this is true, the letter did specify an article written in a newspaper that went into great detail regarding the happenings in Judge Brady's Courtroom.
Regarding the letter that was judged defamatory on Monday: Both the President of the High Court and the President of the District Court treated this letter as a letter of complaint and the president of the District Court wrote to Mr. Tracey to tell him that his complaint was being investigated. That was the last of any investigation that Mr. Tracey heard of. Despite the fact that the president of the High Court viewed this letter as a letter of complaint, the president of the Circuit Court found it to be a letter of malice.
You've some hope of finding justice when your search for justice is labelled 'malice.'
This is disgraceful treatment of Kevin and Karen Tracey.
Judges should not be allowed to adjudicate in cases involving their colleagues.
What chance has a lay litigant against such a system?
I can't believe that this can be happening in my country
I am absolutely gob smacked with this case of the Tracey's. What can the Minister for Justice do about this ? If it was me I would immediately appeal it to the High Court. This type of treatment should not be tolerated by any citizen in a democracy.
This man and his wife have been seriously abused by the courts. They should immediately request an enquiry or tribunal from the Minister. This behaviour in our courts system should not be tolerated. The courts are supposed to protect us from such criminality.
Finding yourself hauled in front of a court for making a complaint against a judge and being fined 17,500 euros, seems like a latter day medevial form of the stocks ,for criticising the Monarch, in this case with the man and his wife's pictures splashed all over the papers.
Hanby Wallace Solicitors on their website write that "malice (in defamation) is notoriously difficult to prove". The judge in this case apparently had no problem in assinging malice to Mr Tracey and ruling in favour of his fellow judge, maybe Hanby Wallace should add the proviso "except where the claimaint (Plaintiff) is a judge". Shocking stuff for a democracy, even a pretend democracy, the veil is slipping, in this case the veil of "Mi Lud". Sounds more akin to the Lords and Ladys and the slaves and vassals of old, (back in your box) A black day for our hard won liberties.
Change the law, bring back jury trial for something like this.
Current issue of Phoenix p 8, has above heading re this story and gives some background. Some beaks seem to like to grind down individual citizens in "trials" which are the theatre of the absurd.
What interest did the Traceys have in saying that judge white, the defedant entered the rooms of judge brady only to tell the truth. This interference by white is putrid and deplorable and the court case that happened this week is even more putrid and deplorable.
Minister for justice where are you ?
Chief Justice where are you ?
The people of Ireland this family need your support
Maybe this individual might have kept the old saying that " he who represents himself has a fool for a client" in mind the next time he engages in a court room battle with trained professionals.
Why will no-one acknowledge the fact that, as we, reading this, have no idea what actually happened, we were not there, that this guy may have indeed written something defamatory about someone and when taken to task on it could not prove the assertions veracity?
I am not saying that is what happened, but it might have! Open minds people!
Ralph Warner in a most enlightening article "Every American a Lawyer" says:
"How often we heard the old saying that he who represents himself has a fool for a client
To that we say, 'He who is represented is usually taken for a fool.' "
http://www.caught.net/prose/everyam.htm
How could such a case proceed without a jury in the interest of justice and fairness where the judge judging the case was judging 2 of his colleagues (one his subordinate). This is not toleable or legal in a democratic justice system. This is a perversion of the course of justice.
It seems the only words in Mr Tracey's letter were "appalling" and "disgraceful" and he is sued for this to the tune of €17,500 and €10.000 costs. I honestly believe that this was a contrived illegal tactic with the sole purpose of defaming Mr Tracey.
This is a terrible abuse by the judiciary which I think the Traceys should request a full enquiry by the new Minister for Justice Mr Ahern.
If they take this matter into the High Court they must insist on a jury which is their right. Let the people decide the outcome and not biased judges as is clearly the case here.
It shocks me to think that a letter of complaint can cause so much harm when it was Mr Traceys right to get a reply which he never received.
Of course it is appalling and disgraceful for a judge to enter another judges chambers and especially when he is the defendant.
What is going on here? I feel there is more to this?
Having read the report by Justin Morahan I believe that Mr Tracey's words were not defamatory and in the circumstances the words should have been stronger and angrier. How can a judge get away with entering the room of another judge to influence a case.
A judge takes an Constitutional oath not to interfere when he is assigned a judge. The Tracey's have a case here.
This judge White should be disciplined. What about the cctv cameras which monitored his movements ? As for judge Brady it appears he has assisted his colleague judge White with malice.
Having read the report by Justin Morahan I believe that Mr Tracey's words were not defamatory and in the circumstances the words should have been stronger and angrier. How can a judge get away with entering the room of another judge to influence a case.
A judge takes an Constitutional oath not to interfere when he is assigned a judge. The Tracey's have a case here.
This judge White should be disciplined. What about the cctv cameras which monitored his movements ? As for judge Brady it appears he has assisted his colleague judge White with malice.
I have met with Kevin and Karen Tracey and they have suffered untold abuse at the hands of this state.
As for this case they have been seriously abused by people in positions of trust. It is a fundamental right to be able to complain. Mr Tracey wrote several letters of complaint about the conduct of judge White and judge Brady on 6th September 2001 and was promised an investigation by the President of the District Court. This never happened. When he persisted to get a full reply this flawed case of defamation was landed on him. The only words in his letter were "appalling" and "disgraceful behaviour" which I believe are 100% true in the circumstances.
I also understand that on 15th October 2005 judge Patrick Brady acted in an appalling and disgraceful manner in the District Court where he threatened to hold a solicitor in contempt of court for asking him a question and when he called the garda he pointed his finger at the lady solicitor and said "remove this woman". Eight solicitors walked out of his court in protest. This surely indicates that his behaviour was "appalling" and "disgraceful". Full account of this behaviour is in the Sunday Independent of 16th October 2005.
It was the above Sunday Independent report that prompted Kevin and Karen Tracey to further seek a response to their many complaints and the said letter is the letter of complaint that caused judge Brady to take this defamation case, eventhough other letters of complaint were written by them over 4 years, which judge Brady was fully aware of.
The Tracey's have told the truth beyond doubt. The judiciary have stooped very low in this case against the Traceys and it is more than a disgrace. It is a botched job and attempt to further damage and rob Kevin and Karen Tracey.
My advice to the Tracey's is to hold tight and the truth will out. The general public are in support of them.
Though this account of the way Kevin and Karen Tracey have been treated by senior members of the legal profession looks bad, and very bad at that, the abuse in question (thoroughly shocking though it must be for these two unlucky people) is still "small potatoes" compared to what senior lawyers are at the present time doing regarding Bunreacht na hEireann (Constitution of the Republic of Ireland): a matter which directly affects every man, woman, and child in the State, in addition to all future generations.
For further information on this subject, please see text of registered letter sent last Friday to newly appointed Prime Minister Cowen TD at:
http://www.humanrightsireland.com/PrimeMinisterCowen/9May2008/Email.htm