The High Court has rejected Joseph Kemmy’s claim for compensation from the State after rape and sexual assault convictions were quashed following a finding that his trial had been unfair.
Kemmy was convicted at the Central Criminal Court on 16 December 2000. In April 2001, he received three years for rape and one year for sexual assault, concurrently, with the balance remaining after 16 December 2001 suspended.
The Court of Criminal Appeal set aside both convictions on 1 December 2003 and ordered no retrial. It found that the trial had been rendered unfair after the jury, during deliberations, asked to see the complainant’s evidence. Instead of providing a transcript, the trial judge read his own notes of the complainant’s evidence in chief and cross-examination without similarly summarising Kemmy’s evidence. The appeal court held that this created an unfair imbalance in a case where consent was central.
Kemmy had already served the custodial part of his sentence by the time the convictions were quashed. He sued Ireland and the Attorney General, arguing that the State should pay damages for infringement of his constitutional right to a fair trial. Because the convictions were not overturned on the basis of a newly discovered fact establishing a miscarriage of justice, he was not eligible for compensation under section 9 of the Criminal Procedure Act 1993.
Mr Justice McMahon rejected the civil claim. He held that the State could not be vicariously liable for judicial errors because judges exercise constitutionally independent functions rather than acting as State employees or agents subject to State control.
The judge also rejected direct constitutional liability. He held that fairness must be assessed across the criminal process as a whole. The appeal system corrected the trial error and no excessive delay in hearing Kemmy’s appeal had been alleged.
The court further held that the policy reasons underpinning judges’ personal immunity from civil suit also supported State immunity for judicial error in these circumstances. The liability claim was therefore dismissed, so no assessment of damages or causation was required.