Burke v O'Halloran

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 10 July 2009
• Neutral Citation: [2009] IEHC 343
• Date: 10 July 2009
• Court: High Court
• Docket Number: [2008 No. 722

Burke v Judge O'Halloran & DPP

JUDICIAL REVIEW

BETWEEN

JOHN BURKE

APPLICANT

AND

JUDGE MARY O'HALLORAN AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

[2009] IEHC 343

[No. 722 J.R./2008]

THE HIGH COURT

CRIMINAL LAW

Trial

Representation - Personal defence - Trial commenced - Whether accused entitled to dismiss legal representation during trial and represent himself - Certiorari granted (2008/722JR - Clarke J - 11/7/2009) [2009] IEHC 343

Burke v Judge O'Halloran

Facts: The applicant, who was convicted by the respondent of a significant number of offences under the Protection of Animals Act, 1911, the Protection of Animals for Farming Purposes Act, 1984 and the Control of Dogs Act, 1986 sought by way of judicial review, an order of certiorari quashing the conviction made by the respondent. The applicant submitted that the hearing in the District Court was conducted in breach of his right to represent himself. The applicant stated that during the course of the hearing, he requested the respondent to allow him to dispense with the services of the solicitor representing him so as to permit him to continue with his defense personally. However, the respondent did not accede to that application and the hearing was conducted by the applicant's solicitor.

Held by Clarke J. in making an order of certiorari quashing the conviction and referring the matter back to the District Court for a fresh trial: That properly characterised, the applicant did make an application to dispense with the services of his solicitor and continue with the proceedings himself. In those circumstances, it was not open to the respondent to refuse that application, at a minimum in the absence of some very weighty countervailing factor. The applicant was correct in the assertion that his entitlement to conduct his defense was impermissibly interfered with by the respondent. Consequently, this was not the kind of case where an appeal would be an appropriate remedy as the applicant did not have a trial in the District Court in which he was permitted to present his defense, within the law, as he wished.

Reporter: L.O'S.

PROTECTION OF ANIMALS ACT 1911

PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES ACT 1984

CONTROL OF DOGS ACT 1986

1 JUDGMENT of Mr. Justice Clarkedelivered on the 10th July, 2009

1. Introduction

2 2 1.1 The applicant ("Mr. Burke") appears as a litigant in person. On the 5 ^th June, 2008, Mr. Burke was convicted following a hearing by the first named respondent ("the District Judge") of a significant number of offences under the Protection of Animals Act 1911, the Protection of Animals kept for Farming Purposes Act 1984, and the Control of Dogs Act 1986. Sentence was adjourned until the 4 ^th September, 2008. However, in the meantime, on the 30 ^th June, 2008, Mr. Burke applied to and obtained leave from this Court (MacMenamin J.) to seek judicial review of the conviction to which I have referred. The substantive judicial review application came on for hearing before me and this judgment is directed towards the issues which were raised at it.

3 3 1.2 It is not a criticism of Mr. Burke, given that he appears as a litigant in person, when I say that it was not overly clear from the documents which he filed as to theprecise basis on which he sought to challenge his conviction as a matter of law. However, the issues became a lot clearer in the course of the argument which was conducted before me. In reality, at the end of the day, it would seem that Mr. Burke's true complaint comes down to one issue. Mr. Burke says that he requested the learned District Judge to allow him to dispense with the services of the solicitor who was then representing him so as to permit him to continue with his defence personally. That solicitor, Mr. Devane, had been assigned to represent Mr. Burke under the Legal Aid Scheme. Mr. Burke says that the learned District Judge refused to allow that application (which, he asserts, was supported by the solicitor in question). In those circumstances he says that his trial, and consequently his conviction, was conducted in breach of his right to be represented in whatever way he might choose which, he says, includes a right to represent himself.

4 4 1.3 However, before going on to address that issue it is important to analyse the various points raised by Mr. Burke so as to demonstrate that the issue which I have just identified was, in truth, the only real issue in the case. In that context it is appropriate to turn first to the statement of grounds.

2. The Statement of Grounds

5 2 2.1 It is, of course, the case that, ordinarily, a party seeking judicial review will be confined, at the substantive hearing of the judicial review proceedings, within the parameters of the relief claimed and grounds set out within the statement of grounds, which formed the basis for the giving of leave to seek a judicial review. The reason for this is obvious. In order that a party be entitled to pursue a judicial review claim before the courts, such a party has to persuade the court that there is a sufficient case to warrant a judicial review. The parameters within which the party concerned can be said to have persuaded the court to that effect are to be found in the order giving leavewhich will normally be formulated by reference to all (or in some cases some only), of the reliefs and grounds set out in the statement of grounds.

6 3 2.2 In any event, the only relief sought by Mr. Burke is to the effect that "the original order of trial be quashed and I propose that a new hearing of the case be held in a higher court". I pointed out to Mr. Burke in the course of the hearing that he would be entitled, in the ordinary way, to appeal the decision of the learned District Judge to the Circuit Court so that he had an entitlement, in any event, to a re-hearing before a higher court. However, Mr. Burke argued that, if he was correct in his assertion that his trial before the District Court was conducted in breach of his entitlement to represent himself, then it followed that that conviction should be set aside and he should be entitled to a new hearing which, he accepted, would have to be before the District Court.

7 4 2.3 In those circumstances it seemed to me that it was appropriate to treat his application as one in which he sought an order of certiorari seeking to quash the conviction of the learned District Judge with a consequential order that the matter be referred back to the District Court for a further fresh trial.

8 5 2.4 In the grounds for review set out in the grounding statement, Mr. Burke sets out some 22 paragraphs. The substance of the matters contended in the course of those paragraphs seem to me to be the following:-

9 a A. That in the course of a number of pre-trial hearings (when the proceedings were adjourned) it is said that the learned District Judge made prejudicial comments against Mr. Burke blaming him for delays;

10 b B. That Mr. Burke's solicitor had not taken adequate instructions from him prior to the hearing date;

11 c C. That difficulties were encountered by Mr. Burke in giving adequate instructions to his solicitor during the hearing;

12 d D. That some of the summonses which were tried by the learned District Judge had not been served on Mr. Burke;

13 e E. That the learned District Judge declined to allow Mr. Burke to dispense with Mr. Devane as his solicitor and continue with the case himself; and

14 f F. That Mr. Devane did not properly question a number of witnesses either called on behalf of the second named respondent ("the D.P.P."), or who had been subpoenaed by Mr. Burke. In some cases where Mr. Burke had subpoenaed witnesses he complains that the witnesses concerned were not allowed to be called at all.

15 6 2.5 In the context of that general description of the basis set out in the statement of grounds for seeking to have Mr. Burke's conviction quashed, it is next necessary to turn to the hearing before the learned District Judge.

3. The Hearing

16 2 3.1 Subject to the question concerning Mr. Burke's attempt to dispense with the services of Mr. Devane and continue with the proceedings himself (which allegation has the potential to colour much of what subsequently happened at the hearing), it did not seem to me that Mr. Burke could point to any aspect of the hearing which could be regarded as unsatisfactory.

17 3 3.2 A transcript of the hearing had been produced and was exhibited in evidence before me. Mr. Burke had expressed certain concerns as to the accuracy of that transcript and had, at a previous application determined by O'Neill J., sought production of the underlying tapes. That application was refused. However, it did notseem to me that, in any event, there was any significant controversy as to those parts of the transcript which were potentially relevant to the issues which I had to decide. In that context I did not understand Mr. Burke to disagree with any of the factual assertions which I am about to note.

18 4 3.3 Firstly, it is clear that Mr. Devane, on behalf of Mr. Burke, made clear that no objection was being taken to the learned District Judge conducting the trial. In those circumstances it is impossible to entertain the suggestion that the learned District Judge had made comments in advance of the hearing such as would entitle Mr. Burke to have the learned District Judge's decision quashed on the grounds of prejudice.

19 5 3.4 As will be seen from the above, a number of the other grounds specified in the statement of grounds related to contentions concerning the manner in which Mr. Devane conducted the defence, starting with an allegation that no proper instructions were taken and continuing to the questioning and calling of witnesses. Reference appeared on the transcript to an assertion by Mr. Devane, which Mr....