A MAN whose rape conviction and three-year sentence was overturned on appeal cannot get damages from the State arising from unfairness due to an error by the judge handling his trial because this would be an “indirect and collateral assault” on judicial immunity, the High Court has ruled.
The State cannot guarantee no error will ever occur in the judicial process and judges are human and will inevitably make mistakes, Mr Justice Bryan McMahon said. In providing an appeals process, the State had fulfilled its obligation under the Constitution.
The judge was rejecting a claim by Joseph Kemmy (59) for damages against the State for infringement of his constitutional rights arising from his being convicted and jailed on a charge of rape of a 17-year-old girl in 1999.
Mr Kemmy, Moorefield Drive, Droichead Nua, Kildare, was jailed in 2001 for the rape and sexual assault of the girl after she went back to Kemmy’s home. He denied the charge and claimed the sex was consensual but was convicted and later sentenced by Mr Justice Daniel Herbert to three years imprisonment. He had served most of that term by the date of conviction as he was in custody awaiting trial since 1999. He appealed and, in 2003, the Court of Criminal Appeal set aside his conviction and did not order a retrial.
The court ruled the original trial was unfair because Mr Justice Herbert had read his own note of the girl’s evidence without also reading Mr Kemmy’s evidence. It said the jury should also have heard a summary of Mr Kemmy’s evidence and the reading of the girl’s evidence only must have created a risk of confusion in the minds of the jury, who had requested a transcript of the girl’s evidence.
Mr Kemmy later initiated his High Court action for damages and alleged any purported immunity from lawsuits for judges related to their judicial performance was unconstitutional.
Michael Durack SC, with Ted Harding, for the State, denied immunity from suit was unconstitutional and contended there was no entitlement to damages.
In his reserved judgment yesterday, Mr Justice McMahon said, when judges are in error in their conduct of a trial, the judiciary enjoys personal immunity from lawsuits for damages because of the constitutional requirement to promote judicial independence.
He refused Mr Kemmy a declaration that a common law rule purporting to grant High Court judges immunity from lawsuits for their performance as judges was unconstitutional and rejected Mr Kemmy’s claim he was entitled to damages for deprivation of liberty as a result of the way his trial was conducted.
He ruled the immunity from litigation enjoyed by judges is well established in Irish law and the facts of this case showed the trial judge had unlimited jurisdiction in which he exercised honest discretion with which the appeal court did not agree.
The State was not above the law but the issue here was whether it had liability for such lawsuits against the judiciary, the judge said. Justice must be administered free from interference and the Constitution provided judges do not receive their power or authority from the State but from the people.
The only limit or control on a judge was in the Constitution itself or in law and, therefore, the State could not be vicariously liable for the errors a judge may commit in the administration of justice.