Burke v Judge Anderson & DPP

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Irvine
• Judgment Date: 23 November 2010
• Neutral Citation: [2010] IEHC 452
• Judgment citation (vLex): [2010] 11 JIC 2310
• Date: 23 November 2010

[2010] IEHC 452

THE HIGH COURT

[No. 25 J.R./2010]

Burke v Judge Anderson & DPP

JUDICIAL REVIEW

BETWEEN

JOHN BURKE

APPLICANT

AND

JUDGE DAVID ANDERSON AND DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES) REGS 2000 SI 127/2000 REG 7

DALY, STATE v DISTRICT JUSTICE RUANE & ORS 1988 ILRM 117 1987/2/398

O'NEILL v JUDGE MCCARTAN & DPP UNREP CHARLETON 15.3.2007 2007/50/10560 2007 IEHC 83

COSTIGAN v JUDGE BRADY & DPP UNREP QUIRKE 6.2.2004 2004/10/2295 2004 IEHC 16

BURKE v JUDGE FULHAM & DPP UNREP IRVINE 23.11.2010 2010 IEHC 448

TRACEY v DISTRICT JUDGE MALONE & DISTRICT JUDGE REILLY UNREP COOKE 20.1.2009 2009/55/13906 2009 IEHC 14

HEGARTY, STATE v WINTERS 1956 IR 320

O'BROIN v DISTRICT JUSTICE RUANE 1989 IR 214 1989 ILRM 732 1989/3/637

DPP & WARD v SPECIAL CRIMINAL COURT 1999 1 IR 60

AG, PEOPLE v MCGLYNN 1967 IR 232

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

CRIMINAL LAW

Judicial review

Remedy - Nature of certiorari - Function of court in judicial review -Discretionary nature of judicial review - Fair procedures -Impact of absence of stenographer on fairness of trial - Onus on judge regarding cross-examination - Bias - Test of bias - Double jeopardy - Purpose of rule of double jeopardy - Principle of continuity in hearing of criminal trials - Whether refusal to hear matters as preliminary issues breach of fair procedures - Whether refusal to direct stenographer attend at hearing breach of fair procedures - Whether curtailment of cross-examination breach of principle audi alteram partem - Whether bias on part of first respondent - Whether double jeopardy in circumstances where High Court had quashed previous conviction order and remitted case back to District Court for re-hearing - O'Broin v District Justice Ruane [1989] 1 IR 214; Burke v Judge Martin [2009] IEHC 441, (Unrep, Edwards J, 9/10/2010) considered - State (Daly) v Ruane [1988] ILRM 117; O'Neill v McCartan [2007] IEHC 83, (Unrep, Charleton J, 15/3/2007); Costigan v Brady [2004] IEHC 16, (Unrep, Quirke J, 6/2/2004); Burke v Fulham [2010] IEHC 448 (Unrep, Irvine J, 23/11/2010); Tracey v Malone [2009] IEHC 14, (Unrep, Cooke J, 20/1/2009) approved - State (Hegarty) v Winters [1956] 1 IR 320; Director of Public Prosecutions v Special Criminal Court [1999] 1 IR 60; People (Attorney General) v McGlynn [1967] 1 IR 232 applied -Protection of Animals Act 1911 (1911 1 & 2 Geo 5 c 27) - Protection of Animals Kept for Farming Purposes Act 1984 (No 13) - Control of Dogs Act 1986 (No 32) - European Communities (Protection of Animals Kept for Farming Purposes) Regulations 2000 (SI 127/2000), reg 7- European Convention on Human Rights 1950 - Application dismissed (2010/25JR - Irvine J - 23/11/2010) [2010] IEHC 452

Burke v Judge Anderson

Facts The applicant faced a number of different prosecutions relating to the alleged mistreatment of animals owned by the applicant. Previously the applicant had been successful in having certain convictions quashed and an order was made that the proceedings be referred back to the District Court for a further trial. During the re-trial the applicant instituted further judicial review proceedings seeking to halt the prosecution. The applicant submitted that as his original conviction had been quashed he had now been placed in double jeopardy contrary to the European Convention on Human Rights. In addition the applicant claimed that he had been denied fair procedures by a failure of the District Judge to determine the validity of summonses issued against him. The court had failed to direct the presence of a stenographer and the District Judge had demonstrated bias against him and had curtailed his cross examination of a witness. The respondents maintained that the rule against double jeopardy was of no application. The applicant had no legal entitlement to the services of a stenographer at the State's expense. All matters regarding the admissibility of evidence were matters for the trial judge and the applicant had been afforded fair procedures.

Held by Irvine J in refusing the relief sought. The rule against double jeopardy did not apply. The previous order of certiorari had the effect of restoring the applicant to his original position and affording him a new trial. It was accordingly open to the District Judge to accept jurisdiction in the matter. A stenographer takes no part in the decision-making process and is not engaged with the court proceedings in any way. A litigant enjoyed the right to take notes himself or to ask another person to do so. Requests that the applicant put back on his jacket to maintain the decorum of the court were not sufficient to demonstrate bias to the point that the court would suspect that justice was not being done. The cross examination of a particular witness for four and a half hours offered the applicant ample time to ask all relevant questions. It was only in exceptional cases that the High Court would grant an order of certiorari in criminal proceedings taking place in a lower court. Any such intervention would be less likely in proceedings in the District Court where an aggrieved party automatically enjoyed the benefit of a full appeal upon conviction. Whilst every litigant enjoyed a right of access to the courts, a point in time must come where that access should be subjected to much greater scrutiny. The applicant, who had chosen to represent himself, as his right, should reconsider his approach to litigation.

Reporter: R.F.

1 1. The applicant in these proceedings is a farmer who resides at Duncummin House, Emly, Co. Tipperary.

2 2. By order of the High Court dated 13 ^th January, 2010, the applicant was granted leave to apply for judicial review in respect of certain proceedings and rulings made by the first respondent ("the District Judge") at Kilmallock District Court on 11 ^th January, 2010. The applicant was granted leave to apply for an order of certiorari or mandamus on the grounds set out at para. E of his statement of grounds.

3 3. At the outset, it should be stated that in his affidavit of 13 ^th January, 2010, the applicant seeks to make a number of arguments which were not contained in the grounds set out in his statement to ground his application for judicial review. Further, in the course of the hearing before me on 21 ^st October, 2010, the applicant sought to argue additional points not referred to in either his statement of grounds or grounding affidavit.

4 4. The second respondent delivered its statement of opposition on 5 ^th March, 2010, and Mr. Aidan Judge, State Solicitor for the County of Limerick, has sworn an affidavit dated 2 ^nd March, 2010, setting out in detail what he states occurred in the District Court on 11 ^th January, 2010. Based upon this affidavit and the statement of opposition, the second respondent maintains that the applicant has disclosed no basis for the relief sought.

Factual Background

5 5. The applicant is the subject matter of three separate tranches of summonses being prosecuted by the Director of Public Prosecutions in relation to the alleged mistreatment of animals owned by him. On 5 ^th June, 2008, the applicant was convicted by Judge O'Halloran in the District Court of a 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.

6 6. The applicant later sought judicial review of the convictions to which I have just referred. That application was treated as an application for an order of certiorari seeking to quash the convictions with a consequential order that the proceedings be referred back to the District Court for a further trial. He sought to quash the convictions based upon his assertion that he had not been allowed to dismiss his legal team in the course of the proceedings in the District Court.

7 7. The applicant was successful in the aforementioned proceedings and the Court, having quashed the convictions, referred the proceedings back to the District Court for a fresh trial.

8 8. It is the trial that then took place before the District Judge in the District Court that is the subject matter of the within challenge. The trial commenced at Kilmallock District Court on 11 ^th January, 2010 and was then adjourned until 14 ^th January, 2010. However, on 13 ^th January, 2010 the applicant sought leave to issue the within proceedings seeking judicial review and in the course of his application, was not only granted leave to apply for judicial review but was also granted a stay on the further prosecution of the District Court proceedings pending the outcome.

Summary of Submissions of the Applicant

9 9. The applicant submits that in circumstances where his conviction was quashed by Clarke J. in the High Court, he has now been placed in double jeopardy in the proceedings pending before the District Judge. This he maintains is contrary to the European Convention on Human Rights.

10 10. The applicant maintains that he was denied fair procedures through a failure on the part of the District Judge to determine, as a preliminary issue, the validity of the summonses in circumstances where the same were not also issued against his wife, Monica Burke, who was a joint owner of the relevant animals.

11 11. The applicant maintains that given that Judge O'Halloran at the original hearing had directed that a stenographer be in attendance, the failure of the District Judge to direct the presence of a stenographer at his request on 11 ^th January, 2010, was to deny him fair procedures.

12 12. The applicant maintains that the District Judge was biased against him and that this bias was demonstrated in the course of an exchange wherein the trial judge directed him to put back on a...