Dona Sfar v Judge Flann Brennan and Others
| Jurisdiction | Ireland |
| Judge | O'Neill J. |
| Judgment Date | 16 October 2008 |
| Neutral Citation | [2008] IEHC 318 |
| Docket Number | [179 J.R./2008] |
| Court | High Court |
| Date | 16 October 2008 |
[2008] IEHC 318
THE HIGH COURT
BETWEEN
AND
PROTECTION OF ANIMALS ACT 1911 (UK)
CONTROL OF DOGS ACT 1986
CONTROL OF DOGS ACT 1986 S18(1)
EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6
EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8
CONTROL OF DOGS ACT 1986 S16
EUROPEAN CONVENTION ON HUMAN RIGHTS FIRST PROTOCOL ART 1
CONTROL OF DOGS ACT 1986 S8(1)
BOWES v DEVALLY & DPP 1995 1 IR 315
RSC O.84 r26(4)
delivered on the 16th day of October. 2008
The applicant obtained leave to bring these judicial review proceedings on 25thFebruary, 2008, by order of this court (Peart J.). Leave was granted to pursue two reliefs, namely:
2 "1. An order or certiorari quashing the District order of judge Brennan dated 12th February, 2008 and all records and entries relating thereto and that the same be quashed.
2. A declaration that all seizures 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."
The grounds upon which leave was granted are set out in the applicant's statement of grounds as follows:
"(iii) Grounds for Relief"
Procedural impropriety.
Judge Brennan was effectively estopped from hearing the case as the same subject matter was subject to a Supreme Court appeal.
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 the District Court order banning the keeping of animals for ten years breaches the European Convention on Human Rights Act 2003, Schedule 2 Article 1.
Breach of Article 6 of the Convention of the Right to Fair Trial.
Breach of Article 7 of the Convention.
I was denied access to my dogs as a punishment before I was even convicted of anything.
Evidence that breached Article 8 of the Convention was admitted. Illegality.
The portion of the order of judge Brennan dated 12th February, 2008, allowing the destruction of the dogs is illegal as no recommendation for the destruction by a veterinary surgeon was obtained in accordance with section 2 of the Protection of Animals Act 1911.
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 a 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 six hours.
Irrationality.
These proceedings relate to the prosecution of the applicant in the District Court on charges of cruelly ill-treating a number of dogs, the property of the applicant. The applicant was served with a number of summonses on 16th October, 2007, concerning fifteen 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.
The return date for the summons was 24th November, 2007. On that date, the first named respondent directed that the applicant be furnished with the statements of evidence and adjourned the case to 11th December, 2007, for hearing. The applicant was given all of the statements of witnesses. There was an application to adjourn the case because of the illness of the prosecuting garda. The applicant was notified of the making of this application. The case was adjourned to 12th February, 2007, for hearing.
The case came on for hearing before the first named respondent on 12thFebruary, 2007. At the outset, the applicant submitted to the court that in her view, the proceedings were stayed by virtue of her appeal to the Supreme Court in other judicial review proceedings in which Murphy J. had given judgment on 22nd October, 2007. These other judicial review proceedings related to the seizure of the dogs in respect of which the District Court charges were brought against the applicant, and some other animals. The applicant was unable to point to any order granting such a stay and the first named respondent rejected her submission and proceeded with the hearing.
Evidence was heard from twelve witnesses for the prosecution. The applicant represented herself and cross-examined these witnesses. Four other witnesses were tendered for cross-examination. The applicant gave evidence and was cross-examined. The applicant was convicted of all the offences and was fined €200 for each offence, totalling €3, 200, and ordered to pay €1, 600 witnesses expenses. The court further ordered, pursuant to s. 18(1) of the Control of Dogs Act1986, that the applicant be prohibited from keeping any animals for ten years and a further order was made directing the disposal of the dogs in question.
At the hearing of this judicial review, the applicant made the following case:
1. She submitted she was denied fair procedures and her rights under Article 6 of the European Convention on Human Rights were breached because the first named respondent did not adjourn the proceedings because of the non-attendance of a veterinary surgeon, one Brian Jones.
I am satisfied that this complaint cannot be sustained. It is clear from the evidence that the applicant did not apply for an adjournment on this ground. It is equally clear that the evidence of this witness, as illustrated in his statement, would have been of very little assistance to the applicant in her defence. The applicant submitted that the State was obliged to have this witness in court because his statement had been furnished to her. I cannot...
To continue reading
Request your trial