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

ONE-SIDED REPORT OF CASE INVOLVING JUDGE

This morning, 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 yesterday 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 publish at length the 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 the 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 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 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, the Defendant had stated 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 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.

Dismal Opening of Dáil

THE SUN DID NOT SHINE in Dublin yesterday for the opening of the new Dáil.

It was a truly dismal occasion in mid-June, cold rain the order of the day.

THE OUTGOING TAOISEACH Bartholomew Ahern was elected after a vote to a third term, and most of the old Fianna Fáil faces were back in Government.

John O'Donoghue, Fianna Fáil, was elected Cathaoirleach after a vote.

Changes in Cabinet include Ministers
Brian Cowen (FF) new Tanaiste (retains Finance),
Seamus Brennan (FF) Arts, Sports and Tourism,
Eamon Ryan (Greens) Communications, Energy and Natural Resources,
John Gormley, (Greens) Environment, Heritage and Local Government,
Brian Lenihan Jr (FF) Justice, Equality and Law Reform,
Martin Cullen, (FF) Social and Family Affairs,
Noel Dempsey (FF) Transport and Marine.

SOME MEMORIES:

Bartholomew Ahern the Taoiseach will forever be remembered as a friend of Bush and Blair, stepping in line and marching to Bush's tune.

John O'Donoghue, the new Cathaoirleach, was seen on Ireland's Day of Shame running from the Dáil to the Ministry for Justice chased by angry women seeking revenge for Iraq.

That same year, Brian Cowen, the new Tanaiste, was seen doing a similar 100 metre sprint away from an anti-war activist-with-a-microphone outside the Fianna Fáil meeting place in Killarney.

Brian Lenihan Jr, new Minister for Justice, Equality and Law Reform, was seen standing outside the same venue on the same day refusing for 15 minutes an invitation to a mike to debate the issue of Shannon with another anti-war activist ("Brian Lenihan sent me to tell you he has only two words to say to you and the second one is 'Off'!" a messenger later told the protestor).

Martin Cullen, the new Minister for Social and Family Affairs, is remembered as the Minister who in 2004 spent 52 million euro on unreliable electronic voting machines that were put into cold storage - where they remain at a cost of nearly 1 million euro annually.

Séamus Brennan, the new Minister for the Arts, Sport and Tourism, was the Minister who told the Irish nation on the 1 o'clock news on 3 February 2003 that the 5 Pitstop Ploughshare activists who disabled a plane at Shannon airport had hospitalized a Garda. When this proved totally without foundation he did not retract or apologize, nor did he do so even when all five were unanimously found not guilty of all charges against them by a Dublin jury.

IN THE DÁIL CHAMBER, it was odd to see the Green Party members alongside Fianna Fáil and the PDs. It had the look of the holy people sitting in the abomination of desolation.

AFTER AN ENDLESS MONOTONY of routine speeches and protocol, however, there was an unholy row when Fine Gael leader Enda Kenny and Labour Leader Patrick Rabbitte reminded the Greens of their erstwhile principles and were treated to a highly charged outburst by Trevor Sargent.

EARLIER, INDEPENDENT ANTONY GREGORY'S SPEECH stood out as a brilliant recording of the sickness that appears to have stricken the Irish body politic and through it the Irish Parliament. In this new Dáil, both he and the four Sinn Féin deputies will have a fight on their hands to speak at all. The departure of four Indpendents and the Greens to the Government benches leaves them isolated despite the efforts of Caoimhín Ó Caoilean to remedy the situation from the start.

ALL IN ALL A DAY WITHOUT MUCH PROMISE, but who knows what the first 100 days will produce. Only time will tell.

Green Party Sell-out.

BY A MAJORITY of 86% to 14% Green Party members voted this evening to join with Fianna Fáil and the PDs in Government. Three or four Independents will also support the re-election of Bartholomew Ahern as Taoiseach. Trevor Sargent resigned as Green Party leader as he had promised to do in such an eventuality. Still he proclaimed himself delighted with the result.

THIS GREEN PARTY who were the most vocal in Ireland against corrupt practices in public office, who rejected the brown envelope tradition, who demanded an end to the US military use of Ireland's civilian Shannon Airport, who appeared to be champions for the conservation of national monuments, who opposed the export of live cattle, who supported Shell to Sea in their fight against Shell and the Irish Government, who said that they would stop Mary Harney’s ‘co-location’ plans to build private hospitals on public land have now accepted power alongside the Party most responsible for corrupt practices including the "Brown Envelope", the party responsible for letting out Shannon airport to George W Bush, the party that is driving a motorway through Tara of the High Kings, now declared one of the world's 100 most endangered monuments, the party that supports Shell, the party that supports and carries out the export of live cattle, and the Party pushing for, and about to implement, co-location of hospitals under the stewardship of the same Mary Harney.

THE DEAL DONE with Fianna Fáil gained only minimum benefits for the Greens.

ANTI-WAR ACTIVISTS vigilled outside the Mansion House all afternoon and evening begging delegates not to do this deal. They were joined by Shell to Sea supporters, Tara preservation supporters and others. Among these groups, especially among anti-war activists, there is a sense of helpless outrage not matched since Ireland's Day of Shame, 20 March 2003, when the Fianna Fáil-PD Government granted rights to Bush to use Shannon for the war he had just started in Iraq - all without UN approval. (Unprecedented protests had followed including a "ring around the Dáil" in which the Garda Special Response Unit used heavy-handed tactics in the arrests of hundreds of sit-down peaceful protestors)

GREEN PARTY SUPPORTERS may be pardoned for feeling that the Parliamentary Party and paid-up members have sold out, taken the shilling and let them down.

IT NOW APPEARS VIRTUALLY CERTAIN that Fianna Fáil and Bartholomew Ahern are back in Government for another five years. What was not expected was that it would be the Green Party that would copper-fasten this happening.

Fall of the Green Party

After playing ping-pong all day today - deal, no deal, deal, no deal - just before the nine o'clock RTE news, the Green Party agreed a final draft of a Programme for Government with Fianna Fáil. They must get a two thirds majority tomorrow afternoon from their members in the Mansion House to ratify the decision of the leadership and negotiating team.

The news will come as a shock to many Green supporters who will look incredulously at a programme that will probably ignore the continued use of Shannon airport by US military to maintain their control of Iraqi oil, the destruction of Tara for a new motorway, the co-location and privatization of hospitals under outgoing Minister Mary Harney, not to speak of the contradictions in the Taoiseach's explanations of receipts of money - which the Greens and PDs had made an election issue.

One re-elected Green TD, Ciaran Cuffe, had written on his own blog that a potential coalition with Fianna Fail was a "deal with the devil".

We have seen unexpected deals in Ireland before. This one, if it happens, will rival the flip-flop of Labour when they returned Fianna Fáil in 1992 after the electorate had given Labour 33 seats believing that in doing so they were getting rid of Fianna Fáil

Fianna Fáil May be Using Resurrected Offer of Talks to Greens as a Decoy

FIANNA FÁIL KEPT THE GREENS TALKING for six days - and, after several Green deadlines had expired, the Greens eventually walked out. No sooner had they left the room than the crafty Fianna Fáil heads began to lure them back. Remember, while they are talking to Fianna Fáil, they cannot be negotiating with Fine Gael and the presumption that Bartholomew Ahern will again be Taoiseach is a winning headline for the media.

UNDECIDED INDEPENDENTS, the two PD deputies and even the four Sinn Féin deputies are supposed to feel threatened if they don't join the winning Fianna Fáil bandwagon. So, the media pundits who always seem to decide these matters have declared that the new Government will consist of 78 Fianna Fáilers, 4 Independents and 2 PDs with the possible addition of the 6 Green members to give "stability" to Bartholomew Ahern's new Government. Why only 4 Independents? Because the fifth, Anthony Gregory, is in Bartholomew's own constituency and Bartholomew could not be seen, in return for Gregory's support, to be giving favours to his own voters that had been bargained from him by a rival in his own backyard. So, he never approached Gregory.

THERE IS A PRESUMPTION in Fianna Fáil that the other four Independents are ready to play ball and the 2 PDs are taken for granted. The Independents and PDs have not said this themselves and all of them, being pragmatic people, have left their options open even at this late stage. The dallying with the Greens is an important public exercise on the part of Fianna Fáil in helping people to make up their minds fast.

SO, ENDA KENNY'S DECISION not to concede defeat on the night of the count or since, in spite of scoffing by radio, TV and other media pundits, has paid dividends for everyone except Fianna Fáil. If the latter do go into Government, it will be at the maximum cost to themselves whether their partners are the mixed grill of Greens, Independents and PDs or the Labour Party. Until now, Labour have been left out of the equation, probably because they would demand five ministries.

AND NOT EVEN the stability of Government desired by Bartholomew would be worth the wrath that would fall on his head if he had to concede so much to an Opposition Party. Meanwhile, Enda Kenny is keeping his cool, knowing that there is always a chance, however small, that the winning chips might fall into his lap.