Burke v District Judge Hamill & DPP

JurisdictionIreland
JudgeMs. Justice Irvine
Judgment Date23 November 2010
Neutral Citation[2010] IEHC 449
CourtHigh Court
Date23 November 2010

[2010] IEHC 449

THE HIGH COURT

[No. 1070 J.R./2009]
Burke v District Judge Hamill & DPP
JUDICIAL REVIEW

BETWEEN

JOHN BURKE
APPLICANT

AND

DISTRICT HAMILL AND DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS

BURKE v JUDGE MARTIN & DPP UNREP EDWARDS 9.10.2009 2009/6/1385 2009 IEHC 441

BURKE v MIN FOR AGRICULTURE & ORS UNREP EDWARDS 24.11.2008 (EX TEMPORE)

CRIMINAL DAMAGE ACT 1991 S2(1)

CRIMINAL LAW

Trial

Fair procedures - Stay - Seisin - Jurisdiction - Constitutional challenge to statutory provisions - No stay on prosecution - Jurisdiction of District Court judge to direct psychiatric treatment - Whether judge other than first respondent had seisin of case - Whether respondent had jurisdiction to hear case prior to determination of constitutional challenge - Whether psychiatric treatment part of order of first respondent - Burke v Martin [2009] IEHC 441, (Unrep, Edwards J, 9/10/2010) approved- Criminal Damage Act 1991 (No 31), s 2 - Application refused (2009/1070JR - Irvine J - 23/11/2010) [2010] IEHC 449

Burke v Judge Hamill

Facts The applicant sought Judicial Review having been convicted in the District Court on animal welfare charges and criminal damage. The grounds upon which he was permitted to seek Judicial Review were: (i) Another District Court judge had seisin of the case (ii) the case should not have been proceeded with until a constitutional challenge in the High Court had been determined (iii) the District Court judge had acted ultra vires.

Held by Irvine J in dismissing the application:

The District Court judge had jurisdiction to hear the case as the other judge was only involved in a procedural process.

There was no order from the High Court precluding the lower court from proceeding with the case.

The court rejected that the trial judge acted ultra vires in imposing a sentence on the applicant as correct procedures were followed.

Reporter: BD

1

JUDGMENT of Ms. Justice Irvine delivered on the 23 day of NOV, 2010

2

1. The applicant in the within proceedings is a farmer who resides at Duncumin House, Emly, Co. Tipperary.

3

2. By order of the High Court made on 22 nd October, 2009, the applicant was granted leave to apply for judicial review in respect of an order made by the first named respondent ("the District Judge") on 2 nd October, 2009. On that date, the applicant was convicted by the District Judge and fined in respect of four animal welfare offences prosecuted by the Minister for Agriculture, Fisheries and Food. He was also convicted and sentenced to one month's imprisonment for a criminal damage offence prosecuted by the second named respondent.

4

3. Peart J. granted the applicant leave to apply for judicial review on three grounds which are set out in his order. These may be summarized as follows:-

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(i) That the District Judge should not have heard the cases as his colleague Judge Mary Martin had seizen of them.

6

(ii) That the summonses should have been postponed until after the determination in the High Court of other proceedings brought by the applicant ( inter alia) challenging the constitutionality of the statutory provisions forming the basis of the summonses.

7

(iii) That the District Judge acted ultra vires in directing that he receive psychiatric treatment in his order and that consequently the convictions should be quashed.

8

4. The application for judicial review is supported by an affidavit of the applicant dated 19 th October, 2009. The second named respondent delivered a statement of opposition on 27 th January, 2010. In addition, two affidavits have been delivered in support of the respondent's defence of these proceedings namely the affidavit of Inspector Paul O'Driscoll sworn on 26 th January, 2010, and the affidavit of Paul Fitzpatrick, State Solicitor for Tipperary sworn on 18 th January, 2010.

The Applicant's Submissions
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5. The applicant maintains that the District Judge should not have heard the five cases which were determined by him on 2 nd October, 2009. He maintains that on 5 th August, 2009, he received correspondence from the County Registrar informing him that the cases had been listed for hearing before Judge Mary Martin. He maintains that Judge Martin had considered a large amount of documentation in relation to these cases on 3 rd June, 2009 and that accordingly she had seizen of them. He maintains that the District Judge therefore acted without jurisdiction.

10

6. The applicant's second complaint is that the proceedings before the District Judge should have not have been embarked upon until after the final determination of certain High Court proceedings commenced by the applicant wherein he has sought, inter alia, to impugn the constitutionality of the statutory provisions pursuant to which four of the cases against him had been brought.

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7. The applicant's third complaint is that the District Judge acted ultra vires in that in imposing a one month's prison sentence upon him in respect of his conviction on the charge of causing criminal damage, he is also alleged to have directed that the applicant receive psychiatric treatment without first of all directing a psychiatric assessment to determine if that treatment was required. Further, the applicant maintains that he was not afforded natural justice and fair procedures in circumstances where he had previously undergone psychological assessment at the direction of District Judge Malone and that Consultant Psychologist, Brian V. O'Keeffe had reported that he had no psychiatric condition. This report could have been brought to the court's attention had the applicant been allowed make submissions in this regard.

The Respondent's Submissions
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8. The second named respondent submits that the applicant has produced no evidence to support his contention that Judge Martin had seizen of the relevant cases. He submits that Judge Martin's involvement in these cases was confined to dealing with procedural matters such as the fixing of dates or the hearing of an application made by the applicant to set aside dates which she had fixed for the hearing of the summonses. Counsel submitted that the hearing before Judge Martin on 3 rd June wherein Judge Martin considered documents submitted by the applicant in support of his application to vacate dates already fixed by Judge Martin for the hearing of these summonses was purely procedural and not such as to afford the applicant any grounds to contend she had seizen of the cases. He further relied upon the decision of Edwards J. in Burke v. Judge Mary Martin and Director of Public Prosecutions [2009] IEHC 441 wherein the applicant unsuccessfully argued that Judge Anderson had seizen of these very same cases.

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9. The second named respondent maintains that the District Judge enjoyed full jurisdiction to entertain and determine the relevant proceedings as the applicant had not obtained an...

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1 cases
  • Flynn and Another v The Commissioner of an Garda Siochana and Others
    • Ireland
    • High Court
    • 2 February 2024
    ...object had lawfully come into the possession of the gardaí. In this regard counsel referred to the dicta of Irvine J in Burke v Hamill [2010] IEHC 449 and the dicta of Twomey J in Foley v WRC [2016] IEHC 42 . It was submitted that it was well settled at law, that if a person was facing a cr......

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