Burke v Judge Martin & DPP

JurisdictionIreland
JudgeMr. Justice Edwards
Judgment Date09 October 2009
Neutral Citation[2009] IEHC 441
CourtHigh Court
Date09 October 2009

[2009] IEHC 441

THE HIGH COURT

No. 933JR/2009
Burke v Judge Martin & DPP
JUDICIAL REVIEW

BETWEEN

JOHN BURKE
APPLICANT

AND

JUDGE MARY MARTIN

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS

EEC DIR 1998/58

EUROPEAN COMMUNITIES TRANSMISSABLE SPONGIFORM ENCEPHALOPATHIES & ANIMAL BY-PRODUCTS REGS 2006 SI 612/2006

EEC REG 1744/2006

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES) REGS 2000 SI 127/2000 REG 4(1)

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES) REGS 2000 SI 127/2000 REG 4(2)

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES) REGS 2000 SI 127/2000 REG 12(2)

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES) REGS 2000 SI 127/2000 REG 13

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES) 1984 REG 5

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES) REG SI 127/2000 REG 6(1)

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES) REGS 2000 SI 127/2000 REG 6(5)

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES) REGS 2000 SI 127/2000 REG 6(6)

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES) REGS 2006 SI 705/2006 REG 5

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES) REGS 2006 SI 705/2006 REG 13(b)

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES) REGS 2006 SI 705/2006 REG 14(1)

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES) REGS 2006 SI 705/2006 REG 8

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES)REGS 2000 SI 127/2000 REG 14

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES)REGS 2000 SI 127/2000 REG 12

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES) REGS 2000 SI 127/2000 REG 14(1)

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES) REGS 2000 SI 127/2000 REG 12

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES) 2000 SI 127/2000 ART 5(2)

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES)REGS 2000 SI 127/2000 REG 23(1)(A)

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES) REGS 2000 SI 127/2000 4(2)

EUROPEAN COMMUNITIES (PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES) REGS 2006 SI 705/2006 REG 13(b)

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 S12

BURKE v DISTRICT JUDGE TERENCE FINN UNREP EDWARDS 27.1.2.2009 2009 IEHC 37

CRIMINAL LAW

Administration of justice

Summary prosecution - Fair procedures - Lay litigant - Applicant alleging bias and absence of fair procedures - Conflict of fact - Applicant serial litigant - Respondents put on notice of application for leave - Seisin - Applicant alleging another District Judge already seized of case - Whether arguable grounds - Burke v District Judge Finn [2009] IEHC 37 (Unrep, Edwards J, 27/01/2009) considered - European Communities (Protection of Animals Kept for Farming Purposes) Regulations 2006 (SI705/2006), rr 5, 8, 13 and 14 - European Communities (Protection of Animals Kept for Farming Purposes) Regulations 2000 (SI127/2000), regs 4, 7, 12 and 13 - Leave refused (2009/933JR - Edwards J - 9/10/2009) [2009] IEHC 441

Burke v Judge Martin

Facts The applicant sought leave to apply for various reliefs by way of judicial review against the respondents. The object of the judicial review proceedings was to seek to prohibit the first named respondent from hearing, and the second named respondent from prosecuting or taking further steps in connection with the trial of 120 charges relating broadly to issues of animal welfare and one charge of criminal damage. There was a major conflict of fact as between the applicant and the relevant State Solicitor concerning what occurred in court on the relevant date. The applicant had an appeal pending before the Supreme Court in relation to a refusal to grant him judicial review regarding similar matters by the Learned Judge herein. The applicant took issue with the first named respondent's failure to stay the prosecution in the District Court. He handed in a large number of documents to the respondent, which the respondent considered and concluded that they did not confirm the existence of on-going judicial review proceedings affecting the cases listed for trial. The applicant further submitted that he was of opinion the respondent enlisted the help of a local solicitor to peruse the documentation handed in by him and further that the respondent made an order binding him to silence and implied that he was wasting the court's time by not obtaining legal representation. The applicant submitted that the foregoing demonstrated bias against him. The State solicitor did not agree with the applicant's version of events.

Held by Edwards J. in refusing to grant leave: That having viewed the documentation that was handed into the respondent, there was nothing to indicate that the proceedings before the respondent were the subject of a stay or in any way prohibited or injuncted. The evidence of the State solicitor was accepted insofar as he stated that applicant was not bound to silence but was asked to desist from interrupting the respondent. The respondent was well within her rights to make such a request of the applicant. The applicant did not provide a scintilla of evidence to support his allegation that the respondent discussed the contents of the documentation with a local solicitor and that allegation was scandalous and both frivolous and vexatious.

Reporter: L.O'S.

1

Mr. Justice Edwards delivered on the 9th day of October 2009

Introduction
2

The applicant in this matter came before the court on Thursday 24 th September, 2009 seeking leave to apply for various reliefs by way of judicial review against the respondents. The first named respondent is the District Judge for the District Court area of Tipperary and District No. 21. The second named respondent is the Director of Public Prosecutions. The specific reliefs claimed were certiorari and/or mandamus but the object of the proceedings seems to have been to prohibit the first named respondent from hearing, and the second named respondent from prosecuting or taking further steps in connection with, the trial of 120 charges relating broadly to issues of animal welfare and the disposal of animal carcasses, and also one charge of criminal damage to a motor car. It is worth pointing out that the second named respondent is only concerned with the prosecution of the criminal damage charge. The prosecutor in the case of the animal cruelty and carcass disposal cases is the Minister for Agriculture and Food, but the applicant has not sought to name him as a party.

3

The applicant's application for leave to apply for judicial review was moved in the first instance on the usual ex-parte basis, before Mr. Justice MacMenamin, on Tuesday the 15 th September, 2009. However, Mr. Justice MacMenamin, having heard an outline of the case, directed that the proposed respondents should be put on notice and he adjourned the matter to my list on the 24 thSeptember 2009. When the matter came before me on the 24 th of September 2009, the prosecutions in question were listed for trial on a specially fixed basis to be heard over three days between Wednesday the 30 th of September, 2009 and Friday the 2 nd of October, 2009 inclusive.

4

At all times the applicant has appeared in person and has sought, as is his entitlement, to represent himself. His application was grounded upon an affidavit sworn by him on the 11 th of September, 2009 exhibiting a draft Statement of Grounds bearing the same date. When the matter came before me on 24 th September, 2009 the respondents were represented by counsel instructed by the Chief Prosecution Solicitor. Counsel sought, and was granted, leave to file an affidavit of Paul Fitzpatrick, the State Solicitor for the County of Tipperary South Riding, sworn on the 21 st September, 2009 by way of a reply to Mr. Burke's said affidavit. Mr. Burke, in turn, then sought leave to swear and file a second affidavit in response to Mr. Fitzpatrick's replying affidavit and he tendered to the court, in unsworn form, a draft of his proposed second affidavit. The court also acceded to this request and allowed him to proceed on the basis of the unsworn document, on the understanding that he was undertaking to swear and file it in due course.

5

Mr. Burke then sought leave to cross-examine Mr. Fitzpatrick as to his affidavit. For the purpose of adjudicating on this application the court considered the affidavits of Mr. Burke and of Mr. Fitzpatrick, respectively. I formed the view that there were indeed significant conflicts between them as to important matters of fact. Accordingly, I agreed in the exercise of my discretion to allow Mr. Burke to cross-examine Mr. Fitzpatrick. However, as Mr. Fitzpatrick could not be present until the following day, the matter was adjourned overnight.

6

When the hearing resumed on Friday 25 th September, 2009, counsel for the respondents sought leave to file a second affidavit in opposition to the applicant's claim. This was an affidavit of Superintendent John Courtney of An Garda Síochána who was present in Tipperary District Court on the crucial date with which the court is concerned, namely the 3 rd of June 2009. While Mr Fitzpatrick was there representing the prosecution in the large number of animal welfare and carcass disposal cases then before the Court he was not representing the prosecution in respect of the criminal damage matter. Superintendent Courtney was there to represent the prosecutor in the criminal damage matter.

7

It was clear from...

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