Dona Sfar v District Judge Flann Brennan, the Director of Public Prosecutions, Ireland, and Attorney General

• Jurisdiction: Ireland
• Judge: Denham C.J.
• Judgment Date: 15 May 2012
• Neutral Citation: [2012] IESC 28
• Court: Supreme Court
• Date: 15 May 2012

[2012] IESC 28

THE SUPREME COURT

Denham C.J.

Hardiman J.

Clarke J.

[Appeal No: 398/2008]

Sfar v District Judge Brennan & Ors

[2012] IESC 28

Between/

Dona Sfar

Applicant/Appellant

and

District Judge Flann Brennan, The Director of Public Prosecutions, Ireland, and The Attorney General

Respondents

CONSTITUTION ART 40

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 SCHED 2 ART 1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

PROTECTION OF ANIMALS ACT 1911 S2

CONTROL OF DOGS ACT 1986 S18(1)

BOWES v JUDGE DEVALLY & DPP 1995 1 IR 315 1995 2 ILRM 148 1995/1/262

HENDERSON v HENDERSON 1843 3 HARE 100 67 ER 313 1843-60 AER 378

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

EEC DIR 90/667

COURTS ACT 1971 S14

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S20

DCR O.35

1 Judgment delivered on the 15th day of May, 2012 by Denham C.J.

2 1. This is an appeal by Dona Sfar, the applicant/appellant, referred to as "the appellant", who represented herself, from the ex tempore judgment of the High Court (O'Neill J.) delivered on the 16 ^th October, 2008.

3 2. On the 25 ^th February, 2008, the appellant obtained leave to apply by way of an application for judicial review for the following:

4 (i) An order of certiorari quashing the District Court order of Judge Brennan dated the 12 ^th February, 2008, and all records and entries relating thereto and that same be quashed.

5 (ii) A declaration that all seizure of dogs made under the Protection of Animals Act 1911 within the curtilage of a private dwelling is illegal if entry was obtained without legal sanction.

6 3. The High Court (Peart J.) gave leave to apply for judicial review on the grounds set out in the appellant's statement. The grounds for relief, set out in the appellant's application for leave for judicial review, were as follows:-

"Procedural impropriety.

Breach of Natural Justice.

No proper opportunity for a proper defence was allowed.

Breaches of Constitutional Law in the conduct of the case and in the collection of evidence, particularly Article 40.

Breach of the European Convention of Human Rights.

The portion of District Court Order banning the keeping of animals for 10 years.

Breaches of the European Convention on Human Rights Act 2003, Schedule 2 Article 1.

Breach of Article 6 of the Convention on the right to a fair trial.

Evidence that breached Article 8 of the Convention was admitted.

Illegality. The portion of the order of Judge Brennan dated 12/ 2/2008 allowing the destruction of the dogs is illegal as no recommendation for their destruction by a veterinary surgeon was obtained in accordance with section 2 of the Protection of Animals Act 11. Evidence available that the animals are currently in good general health.

The animals were seized under the Protection of Animals Act as amended prior to the issue of a certificate of veterinary surgeon in accordance with section 11 of the Protection of Animals Act. No evidence was produced that any animal was actually injured.

No proof was provided that the animals had not been fed or watered outside of 6 hours.

Irrationality.

Any other ground identified at a later date."

7 4. The appellant's application was heard by O'Neill J. on the 14 ^th and 15 ^th October, 2008. The issue as to whether the first named respondent had the power to prohibit the appellant from keeping animals, as opposed to dogs, arose for the first time during the hearing on counsel for the respondents drawing the Court's attention to this issue. No such ancillary order appeared on the orders previously before the High Court. There was a handwritten purported order brought before the High Court. It became clear that the first named respondent's order purported to impose a ban on the appellant "keeping animals" for a period of years as opposed to "keeping dogs" as provided for under s. 18(1) of the Control of Dogs Act, 1986. This issue had not been included in the application for judicial review as a ground for relief. The respondents indicated that should the appellant wish to make an application to add this ground, they would not oppose an amendment to the grounds to include a complaint that the first named respondent had exceeded his jurisdiction in that respect. So, the appellant was permitted to amend her statement of grounds to include a complaint that the first named respondent had exceeded his jurisdiction in prohibiting her from keeping "animals" for ten years.

8 5. (i) On the 16 ^th October, 2008, O'Neill J. delivered an ex tempore judgment. He held that the appellant was served with a number of summonses on the 16 ^th October, 2007, concerning 15 charges of cruel ill-treatment, pursuant to the Protection of Animals Act, 1911, as amended, and one charge of failing to bury an animal carcass to which a dog had access, contrary to the Control of Dogs Act, 1986.

9 (ii) The case had come on for hearing before the first named respondent on the 12 ^th February, 2008. Evidence was given from 12 witnesses for the prosecution. The appellant represented herself and cross-examined the witnesses. Four other witnesses were tendered for cross-examination. The appellant gave evidence and was cross-examined.

10 (iii) The appellant was convicted of all of the offences and fined €200 for each offence, totalling €3,200, and ordered to pay €1,600 witnesses expenses. The District Court also ordered that the appellant be prohibited from keeping any animals for 10 years and a further order was made directing the disposal of the animals.

11 (iv) Counsel for the respondents, Ms O'Boyle S.C., pointed out to the High Court that the prohibition on the District Court order on the appellant from keeping "animals" for ten years exceeded the jurisdiction of the District Court insofar as s. 18(1) of the Control of Dogs Act, 1986, permitted only a disqualification from keeping a dog. It was suggested that the High Court should take the approach adopted by Geoghegan J. in Bowes v. Judge Devally [1995] 1 I. R. 315 at p. 319.

12 6. The High Court considered, inter alia, the submission that the appellant had been denied fair procedures and that her rights were breached because the first named respondent did not grant an adjournment. The learned High Court judge considered that this submission could not be sustained.

13 7. The appellant complained that the seizure of the dogs was a breach of a right to her private life, as protected by Article 8 of the European Convention on Human Rights. The learned High Court judge held that the legality of the seizure of the dogs and other animals had been litigated in earlier proceedings and determined against the appellant by Murphy J. on the 22 ^nd October, 2007. The principle of law as set out in Henderson v. Henderson (1843) 3 Hare 100, 67 E.R. 313 was applied by the learned trial judge and the submission of the appellant was not upheld.

14 8. The appellant complained about the length of the 10 year prohibition on keeping animals, and the learned trial judge pointed out that her appeal was pending and that she could raise that issue at the appeal.

15 9. The appellant claimed that the order was for the "destruction" of the dogs, but in fact the learned trial judge had ordered that they be "disposed of" not destroyed, as the High Court judge pointed out. On these, and other grounds, the High Court refused to grant the relief sought.

16 10. However, the learned High Court judge concluded:-

"In light of the conclusions reached above, I am satisfied that the order of the District Court is a valid order, both as to conviction and sentence, apart from the use of the word "animals" instead of "dogs". Because the order is not severable, I am obliged to quash the entire order because of this defect.

However, I am quite satisfied that I should do as Geoghegan J. did in the Bowes case and remit the matter to the District Court under 0. 84,r.26(4) of the Rules of the Superior Court 1986, with a direction to reconsider it and reach a decision in accordance with the findings of this court. As said in the Bowes case, this does not mean that the District Court should re-hear the matter. All that is required now is for the first named respondent to make a new order, varying the order of the District Court by substituting "dogs" for "animals" in the ten year prohibition.

On that basis, the case will be remitted to the District Court."

Appeal

17 11. The appellant has appealed from the order and judgment of the High Court. The grounds advanced for the appeal were as follows:-

18 1. That the learned Judge failed to interpret and apply statutory provisions or rules of law in so far as it is possible, subject to the rules of law relating to such interpretations and application, in a manner incompatible with the State's obligations under the Convention provisions, as this applies to any statutory provision in force immediately before the passing of the European Convention on Human Rights Act 2003 or any such provision coming into force thereafter.

19 2. That the learned Judge failed in accordance with section 4 of the European Convention on Human Rights Act 2003, to take due notice and due account of the principles laid down by those declarations, decisions, advisory opinions, opinions and judgments of the Convention provisions and of:-

20 (a) any declarations, decisions, advisory opinion or judgment of the European Court of Human Rights established under the Convention on any question in respect of which that Court has jurisdiction,

21 (b) Any decision or opinion of the European Commission of Human Rights so established on any question in respect of which it had jurisdiction.

22 (c) Any decision of the Committee...