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Cite as: [2019] IESC 14

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AN CHÚIRT UACHTARACH

THE SUPREME COURT

Supreme Court Record No: S: AP:IE: 2016:000135

High Court Record No: 2006/652 JR

Clarke C.J.

O’Donnell J.

McKechnie J.

MacMenamin J.

Finlay Geoghegan J.

BETWEEN

KEVIN TRACEY

AND

DISTRICT JUDGE AENEAS MCCARTHY

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

RESPONDENT

NOTICE PARTY

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 25th day of February,

2019

Introduction

1. This case was heard in conjunction with a second and related judgment being delivered

today, Walsh v The Minister for Justice and Equality & ors (Supreme Court Record No.

68/2017). Most of the substantive issues of law which arise in the area of contempt in

facie curiae and my discussion relating to such issues, are set out in that judgment.

Where relevant they equally apply to this case; however instead of reproducing much of

what is there produced, some cross referencing will be required. This short judgment

therefore, contains only a brief statement of the facts and of the decision in regard to Mr.

Tracey’s specific case.

Background

2. Mr. Tracey has a long history with the Irish courts: his belief is that he has been a victim

of the justice system for many years and that the reason for this stems back to a civil

dispute he had with a neighbour, as it happens a member of the judiciary. O’Donnell J.

has noted in his judgment ([2019] IESC 14) and I would tend to agree, that the merits of

these complaints must be assessed in relation to each case in which they are legitimately

raised, subject always of course to relevance. This piece of background information is

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however important to know, so as to understand the context in which the events of this

case have transpired.

3. On the 31st May, 2006, the appellant appeared in the District Court, sitting in Richmond

Street, Dublin 7, in relation to a road traffic charge, then pending against him. He

appeared before the respondent, Judge McCarthy, where his case was listed for mention

only. Mr. Tracey had an associate with him, a Mr. Owen Rice, and also, quite notably had

a stenographer present in court. The transcript of the hearing which was subsequently

produced by Mr. Tracey is not disputed, except for certain matters which are described

and commented upon, rather than being transcribed word for word. However, it is

accepted that it conveys the essence and substance of what occurred.

4. Upon being called by the respondent, Mr. Tracey informed the judge that he wished to

read a statement, one which related to the complaints referred to earlier, outlining what

he alleged was the abuse and victimisation by his neighbour. Judge McCarthy refused to

allow this, explaining that the matter was listed for mention only, in order to fix a date for

hearing. The judge was patient for a period of time while the appellant objected and made

various exclamations in relation to allegations that false court summonses had issued

against him and in relation to the prosecutor in his case: he wished to know the

prosecuting garda’s name, however that guard, Garda Ryan, refused to tell him. At this

point, when he started to make remarks about the Gardaí, the respondent asked the

court guard to remove him from the courtroom. Mr. Tracey proceeded to shout, “You’ll be

hearing about this Judge”, and “How crooked! And you think you will get away with this?

How crooked you are!"”: this latter comment as later alleged by Mr. Tracey was directed

not at the Judge but at Garda Ryan who at this point was helping another garda to

remove Mr. Tracey from the courtroom by propelling him towards the door.

5. Judge McCarthy then requested that Mr. Tracey be brought back up to the bench,

whereupon he informed him that he was finding him guilty of contempt. He asked

whether he had anything to say, to which he said he did not. The judge sentenced him to

seven days’ imprisonment and adjourned his case until September. A warrant for

committal issued from the District Court that same day and on foot thereof he was

detained. His associate Mr. Rice however swore an affidavit upon which he made an

application to the High Court for an Article 40 habeas corpus inquiry, again on the 31st

May, 2006.

6. This application was refused by Herbert J. on the basis that the order for detention was

not the issue but rather it was the procedure leading up to it. On that basis and being

otherwise satisfied, he granted leave to apply for judicial review. The learned judge. also

allowed Mr. Tracey out on bail while the outcome of the judicial review proceedings was

awaited. It can be noted, though it is not of much consequence, that the appellant

appealed the decision refusing an Article 40 inquiry to this Court but this was dismissed in

2017.

7. The judicial review proceedings were heard by McGovern J., then of the High Court, at a

hearing in which Mr. Tracey represented himself. In a judgment delivered on the 6th

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March, 2008 ([IEHC] 2008 59), the learned judge dismissed the application, thus Mr.

Tracey was obliged to serve the balance of his seven-day sentence.

8. The order made by the High Court, which of course was necessary in order to facilitate an

appeal, was backdated. It was later perfected but this had consequences for the appeal

Mr. Tracey intended to bring, in that by the time he had successfully obtained it, the time

limit had expired. Understandably, this did not do much for Mr. Tracey’s already quite

suspicious view of the legal system as a whole. Subsequently however, in fact some eight

years later in November, 2016, he brought an application to this court seeking an

extension of time to appeal the decision of the High Court.

9. Judgment was delivered by Clarke C.J. on the 10th February, 2017 ([2017] IESC 7),

wherein the learned Chief Justice described the constitutional issue arising as difficult: Mr.

Tracey was seeking an extension of time to appeal the judgment of the High Court,

however he brought this application after the 33rd Amendment to the Constitution had

been passed and the Court of Appeal had been established. The decision of the High Court

had of course been handed down before those events had taken place. Therefore, the

constitutional right of appeal which at that time lay from decisions of the High Court

directly to this Court no longer existed and instead there was a right of appeal to the

Court of Appeal, unless an application for leave was successfully made under Article

34.5.4, to appeal directly from the High Court. The question thus arose: should Mr.

Tracey have to satisfy both the elevated constitutional threshold needed for a ‘leapfrog

appeal’ and the criteria for seeking an extension of time, or could he simply satisfy the

extension of time criteria, as though under the old regime?

10. The Chief Justice found it unnecessary to conclusively determine this constitutional

crossover issue. As well as raising an important question of public importance, he noted

that the Court was already managing a significant number of appeals brought by Mr.

Tracey: therefore, it would make good sense for it to deal with this one also. Accordingly,

these facts were enough to satisfy the elevated constitutional threshold. Therefore,

irrespective of whether the old regime or new regime was in play, it was to be an appeal

to this Court, subject to the need for an extension of time, which evidently was granted.

Outcome:

11. I have grave reservations about Mr. Tracey’s bona fides when he attended in court on the

31st May, 2006. All of the surrounding circumstances suggest that he was not there

simply for the purposes of dealing with the road traffic offence with which he was

charged. What followed gives serious credence to this suspicion. He had a stenographer in

court, he was accompanied by an associate, Mr. Owen Rice, he insisted upon making a

statement and even when told he could not, continued to persist: he evidently intended in

that statement to make the kind of allegations which are recited in para. 6 of the

judgment of O’Donnell J. Furthermore, I have once again grave reservations that his

remarks “how crooked? And you think you will get away with this? How crooked you are”,

were directed solely at the prosecuting garda, Garda Ryan. Above all, when directed to be

brought back before the District Court judge, and when asked “do you have anything to

say in that regard”, his reply was “no”. Most individuals, if not all, who did not intend to

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engage in offending conduct would have taken that opportunity to at least explain their

position, if not to offer an immediate apology. Whilst I cannot conclusively make a

determination on this, I have little doubt but that his offered explanation lacks virtually all

credibility. However, with the utmost misgivings, I cannot be sure that the appropriate

level of fair procedures was afforded to him, particularly given the timing of the judge’s

statement that he was finding him guilty of contempt.

Conclusion

12. Accordingly, and for the reasons stated above, most reluctantly, I also agree with the

order as proposed in his case by O’Donnell J.

Result: Dismiss appeal.