Burke v Judge Fulham & DPP

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 23 November 2010
• Neutral Citation: [2010] IEHC 448
• Court: High Court
• Date: 23 November 2010

[2010] IEHC 448

THE HIGH COURT

[No. 791 J.R./2009]

Burke v Judge Fulham & DPP

BETWEEN

JOHN BURKE

APPLICANT

AND

JUDGE RAY FULHAM AND DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

PROTECTION OF ANIMALS ACT 1911

PROTECTION OF ANIMALS (AMDT) ACT 1965

CONTROL OF HORSES ACT 1996

CONTROL OF DOGS ACT 1986

DALY, STATE v RUANE 1988 ILRM 117

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

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

RCC O.24

RCC O.24 R3

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

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

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES) REGS 2000 SI 127/2000 REG 9

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

BURKE v MIN FOR AGRICULTURE & ORS 2008/966JR (NO TRANSCRIPT AVAILABLE)

BURKE v JUDGE MARTIN & DPP UNREP IRVINE 23.11.2010 2010 IEHC 450

CONSTITUTION ART 40.3

RIORDAN v IRELAND (NO.4) 2001 3 IR 365

SHANNON v JUDGE MORAN UNREP SUPREME 9.12.2004 2004/46/10565

Abstract:

Criminal law - Judicial review - Fair procedures - Failure to make full disclosure - Isaac Wunder Order - Whether the order of the respondent ought to be quashed for the alleged failure to comply with fair procedures - Whether the applicant should be restrained from bringing further proceedings in respect of this case.

Facts The applicant sought by way of judicial review an order of certiorari quashing the order of the first named respondent convicting the applicant of eleven offences essentially regarding the mistreatment of animals and sentencing him to 8 months imprisonment. That order was made following upon the applicant's appeal against his convictions in the District Court in respect of thirteen offences. The applicant submitted that he was not afforded fair procedures in the course of his appeal due to the failure of the court to compel the attendance of certain witnesses, the failure of the court to appoint a stenographer, failure to permit adequate cross-examination, failure to permit the applicant to introduce documentary evidence and failure to exclude certain witnesses. The applicant also submitted that there was a lack of evidence before the first named respondent. In respect of the sentence imposed, the applicant maintained that it was unlawful as the respondent passed a custodial sentence surmising that the applicant could not pay a fine and he also contended that it was unconstitutional to impose a fine in circumstances where that fine had already been prepaid through the seizure of his stock by Department officials. However, his grounding affidavit was silent as regards the vast majority of the complaints he made in his statement grounding this application. The second named respondent opposed this application on the merits and also submitted that the applicant's account of the proceedings before the first named respondent was not accurate and further that the applicant was guilty of material non-disclosure in the course of his application before this court.

Held by Irvine J. in dismissing the application and ordering that the applicant be restrained from instituting any proceedings in any jurisdiction, whether by way of appeal or otherwise, except with the prior leave of the President of the High Court, such leave to be sought by application in writing addressed to the Chief Registrar of the High Court: That the applicant failed to establish that he was not afforded fair procedures or that the first named respondent erred in law in convicting him of the offences. The applicant's claim for relief by way of certiorari was unfounded and was in many respects misconceived. In respect of the argument regarding sentence, the respondent was not under any obligation to enter into an assessment of the applicant's ability to pay any fine prior to imposing a sentence. The respondent was entitled to impose a custodial sentence and acted within jurisdiction in doing so. Furthermore, the applicant failed to put forward any argument or authority in support of his proposition that the seizure and/or sale of any of his stock by the Department precluded the imposition upon him of a fine within the range provided for in the relevant statutory provisions.

The within proceedings were heard by this court during a two week period within which the court heard three other applications for judicial review also brought by this applicant and two motions in yet another set of judicial review proceedings brought by the applicant. The court also considered the decisions of colleagues in two other sets of judicial review proceedings brought by the applicant. Having regard to all of those applications, the court determined that the applicant's conduct was only consistent with a deliberate and sustained intention to thwart the administration of justice and designed to make it impossible for judges in the District and Circuit Courts to deal with cases concerning him which were pending before them. Furthermore, the applicant managed to make a number of leave applications to different judges and in the course of so doing he was found guilty of failing to disclose to them a full account of his other proceedings. Consequently, it was necessary to take action to protect the court's processes from abuse and to ensure that the administration of justice may proceed without unwarranted interference, particularly in relation to the proceedings outstanding against the applicant in the District and Circuit Courts.

Reporter: L.O'S.

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 31 ^st July, 2009, the applicant was granted leave to apply for an order of certiorari quashing his conviction by the first respondent ("the Circuit Judge") on 20 ^th July, 2009, in respect of a number of offences under the Protection of Animals Acts 1911 and 1965 and the Control of Horses Act 1996 and further offences under the Control of Dogs Act 1986 and directing him to serve a total of eight months imprisonment.

3 3. The order, the subject matter of the applicant's challenge, was made by the Circuit Judge following upon his appeal against his conviction in the District Court on 13 ^th July, 2007, in respect of thirteen offences.

Appeal before the Circuit Court

4 4. At a hearing of the Circuit Court on 26 ^th February, 2009, the applicant was granted legal aid. Notwithstanding this fact, the applicant represented himself when his appeal commenced on 18 ^th March, 2009. The hearing of the appeal continued on the following day and later was resumed on 30 ^th June, 2009. Thereafter, the proceedings continued throughout 1 ^st, 2 ^nd and 3 ^rd July, 2009. At the conclusion of the prosecution's case, the applicant sought a direction which was refused. The applicant then called ten witnesses to give evidence on his behalf, including his wife and his son, but did not give evidence himself. Following the conclusion of the evidence, the Circuit Judge upheld all but two of the convictions imposed by the district judge. The applicant's appeal in respect of summonses No. 1 and 8 were allowed.

The Nature of the within Proceedings

5 5. The applicant was granted leave to seek an order of certiorari quashing the order of the Circuit Judge made on 20 ^th July, 2009, on the grounds set out at para. E of the statement grounding his application for judicial review. Nineteen separate grounds have been advanced in support of his contention that he was not afforded fair procedures in the course of his appeal. He complains, inter alia, that (i) the Court failed to compel the attendance of a number of witnesses upon whom summonses had been served; (ii) he was restricted in his right to cross-examine witnesses; (iii) he was precluded from introducing certain documentary evidence; (iv) he was not afforded the services of a stenographer; (v) the trial judge did not understand the nature of the evidence; (vi) crucial errors of law were made; and (vii) a number of findings made by the trial judge were unsupported by the evidence.

6 6. The applicant's claim for judicial review is supported by a brief affidavit sworn by him on 6 ^th August, 2009. This affidavit is silent as regards the vast majority of the complaints made by him in the statement grounding his application for judicial review.

7 7. The second respondent delivered his statement of opposition on 3 ^rd December, 2009. Mr. Paul Fitzpatrick, State Solicitor for Tipperary South, filed an extensive affidavit dealing with each of the applicant's complaints. On behalf of the second respondent it is contended that the applicant's account of the proceedings before the Circuit Court as advised in his affidavit and statement of grounds is not accurate and that he has been guilty of material non-disclosure in the course of his application before this Court. Without prejudice to these assertions, the second respondent maintains that each of the rulings and orders made by the Circuit Judge were lawful and were made within jurisdiction and that at all times the proceedings were conducted in accordance with the principles of natural and constitutional justice.

The Law

8 8. Having regard to the conclusions that I have reached in the present case, it is probably necessary to restate briefly the nature of the remedy of certiorari. In the State (Daly) v. Ruane [1988] I.L.R.M. 117, a decision recently followed by Charleton J. in O'Neill v. Judge Patrick McCartan and Director of Public Prosecutions [2007] IEHC 83, (Unreported, High Court, 15 ^th March, 2007), O'Hanlon J. at p. 124 described relief by way of certiorari in the following manner:-

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