Sparrow v Minister for Agriculture, Fisheries and Food and Another

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 29 January 2010
• Neutral Citation: [2010] IESC 6
• Court: Supreme Court
• Date: 29 January 2010

[2010] IESC 6

THE SUPREME COURT

Denham J.

Geoghegan J.

Finnegan J.

[Appeal No: 154 of 2009]

Sparrow v Min for Agriculture & Hamill

Between/

Dermot Sparrow

Applicant/Appellant

And

Minister for Agriculture, Fisheries and Food

First Named Respondent

and

Judge Hamill

Second Named Respondent

DISEASES OF ANIMALS ACT 1966 S49(1)(I)

NATIONAL BEEF ASSURANCE ACT 2000 S35

T (P) v DPP 2008 1 IR 701

SPARROW v JUDGE CONNELLAN & MIN FOR AGRICULTURE UNREP DE VALERA 22.6.2006 2006 IEHC 231 2006/54/11599

H (P) v DPP UNREP SUPREME 29.1.2007 2007/27/5627 2007 IESC 3

H (S) v DPP 2006 3 IR 575

CRIMINAL LAW

Prohibition

Summary charges - Medical evidence - Claim that trial posed risk to life - Opportunity for independent medical examination - Evidence of cardiologist - Significant health problems - High risk of sudden death - Inability to give instructions for purposes of cross-examination - Medical history - Ruling that trial should proceed - Grounds of appeal - Unfairness - Real risk of unfair trial - Constitutional rights - Prejudice to ability to mount proper defence - Claim that constitutional right to life outweighed right of community to prosecute - Whether decision to proceed irrational - Whether court should intervene to restrain trial - Ability to work - Ability to drive - Ability to give evidence in other court cases - T(P) v DPP [2007] IESC 39 (Unrep, SC, 3/7/2007) considered - Diseases of Animals Acts 1966 (No 6), s 49 - Disease of Animals Act 1966 (Restriction on Movement of Certain Animals) Order 2001 (SI 121/2001) - Applicant's appeal dismissed (154/2009 - SC - 29/1/2010) [2010] IESC 6

Sparrow v Minister for Agriculture, Fisheries and Food

Facts The appellant is seeking to prohibit his trial in the District Court on two charges relating to foot and mouth disease forms on the basis that there is medical evidence to the effect that his health is so precarious that proceeding with the trial would put his life at risk. There was a dispute between the parties as to the precise oral medical evidence given before Judge Hamill in the District Court. Judge Hamill was not satisfied that exceptional circumstances existed such as in P.T. V DPP [2008] 1I.R 01 and that the case should proceed. Judge Peart in the High Court judge granted the applicant leave to seek judicial review. At the judicial review hearing, Judge Hogan distinguished the facts of the present case from those in P.T. V DPP [2008] 1I.R 01and further held that is was not appropriate for him to exercise his discretion in favour of the applicant.

Held by the Supreme Court (Denham J. delivering the judgment of the court) in dismissing the appeal, on the basis that the appeal is based on the medical evidence and the misconception that Judge Hamill had no choice in his decision once the medical evidence was given on behalf of the applicant. This fundamental error undermined the whole appeal. Where medical evidence is given by one party, the court is not bound to comply with that evidence. The decision to be made is that of the judge, on all the evidence, it is not a medical decision for the applicant's cardiologist.

Reporter: C. O'C

1 Judgment delivered the 29th day of January, 2010 by Denham J.

An appeal

2 1. This is an appeal by Dermot Sparrow, the applicant/appellant, referred to in this judgment as "the applicant", from the decision of the High Court (Sheehan J.) delivered on the 1 ^st April, 2009.

3 2. The applicant seeks to prohibit his trial in the District Court on two charges relating to foot and mouth disease forms, on the basis that his health is so precarious that proceeding with the trial would put his life at risk.

Summary proceedings

4 3. On the 8 ^th April, 2003 summary proceedings were initiated against the applicant by the first named respondent in the District Court Area of Dunlavin, District Number 16, in respect of offences alleged to have been committed on the 9 ^th April, 2001.

5 4. The offences with which the applicant is charged are:-

6 (i) That the applicant did grant or issue an instrument to wit a Foot and Mouth Disease five form so issued on the 9 ^th April, 2001, at Jigginstown, Naas, Co Kildare in contravention of s.49(1)(h) of the Diseases of Animals Act, 1966 to 2001 (as amended by s.35 of the National Beef Assurance Act, 2000);

7 and

8 (ii) That the applicant did offer an instrument so issued on the 9 ^th April, 2001, at Jigginstown, Naas, Co Kildare in contravention of s.49(1)(i) of the Diseases of Animals Act, 1966 to 2001 (as amended by s.35 of the National Beef Assurance Act, 2000).

Before Judge Hamill

9 5. On the 14 ^th November, 2007 Judge Hamill, having heard evidence from all parties including the medical evidence advanced on behalf of the applicant, stated that he was not satisfied that exceptional circumstances existed such as in P.T. v. Director of Public Prosecutions [2008] 1 I.R. 701, and that the case should proceed. Judge Hamill considered the issue of the applicant's bronchitis and adjourned the matter for two months to the 14 ^th January, 2008 at 10.30 a.m. before Naas District Court for the purpose of fixing a date for trial.

Judicial Review

10 6. On the 3 ^rd December, 2007 the High Court (Peart J.) gave leave to the applicant to apply by way of judicial review for the following reliefs:-

11 (i) An order of prohibition prohibiting the trial of the applicant and prohibiting the first named respondent from pursuing the prosecution;

12 and

13 (ii) An order of certiorari of the decision of Judge Hamill on the 14 ^th November, 2007.

14 7. The grounds for the application for judicial review were as follows:-

15 (i) The wholly exceptional circumstances of the case make it unfair or unjust to put the applicant on trial in that there is a very high risk of sudden death at trial.

16 (ii) The very high risk of sudden death at trial in itself constitutes a real risk of an unfair trial.

17 (iii) The constitutional right of the applicant to trial in accordance with the law is breached in that his ability to defend himself properly has been severely prejudiced in that this case and associated court appearances have been the cause of stress to the applicant and any further court appearances could result in the sudden death of the applicant.

18 (iv) The constitutional right to life of the applicant outweighs the community's right to prosecute the applicant when the applicant has a track record of acute cardiac syndrome in relation to the events being considered by the District Court and where the risk of an incident being fatal is approximately 50%.

19 (v) The decision of Judge Hamill is irrational and flies in the fact of the uncontested and accepted expert evidence of the consultant cardiologist in that Judge Hamill decided:

20 (a) to adjourn only on the grounds of bronchitis;

21 (b) to try to separate the applicant's bronchitis condition entirely from his underlying heart condition;

22 (c) when the risk assessment of the consultant cardiologist was that any further court appearances could result in the sudden death of the applicant;

23 (d) having accepted the risk assessment of the consultant cardiologist that the fact that the applicant has had more cardiac incidents in relation to the case means that he is more likely to have another one.

24 8. The respondents opposed the granting of the reliefs on a number of grounds, these included the following:-

25 (a) The applicant has taken previous judicial review proceedings, entitled Dermot Sparrow v. Judge Connellan and the Minister for Agriculture and Food [2006] IEHC 231, where he had canvassed several issues, including his health. On the 22 ^nd June, 2006 in his judgment in that case de Valera J. considered the issues of delay and bias. On the issue of bias he held:-

"In this matter I am satisfied that there is no evidence whatsoever of actual bias on behalf of the first named respondent but that an independent "reasonable person" might, legitimately, conclude from the statements and actions of the first named respondent that "a fair and independent" hearing could not take place and I am therefore satisfied that I should grant an order for prohibition against the first named respondent in the terms of paragraph 4(b) of the statement of grounds in the notice dated the 21 ^st July, 2004."

26 Having prohibited the matter continuing in front of the District Judge named in those proceedings, who is not the District Judge in these proceedings, the learned trial judge went on to state:-

"In reaching this decision I have considered the arguments concerning the venue for the proposed hearing and the applicant's stated medical condition both of which matters, among others, are matters for the judge eventually assigned to hear this matter."

27 (b) The respondents submitted that the health grounds had been ventilated and decided, were res judicata.

28 (c) Further, it was submitted that Judge Hamill had acted lawfully and within jurisdiction in hearing evidence, including the applicant's medical expert witness, and having heard all the evidence decided that the matter should proceed.

29 9. On the 1 ^st day of April, 2009 Sheehan J. delivered his judgment in this matter. His conclusion was as follows:-

30 2 "28. While Mr. Hogan has argued that the health factor was the dominant one in the Supreme Court's decision in P.T., it is in the first place important when considering that judgment to note the following remarks of Denham J. at para. 17:-

31 'In issue is the exception referred to in H. v. Director of Public Prosecutions: whether it would be unfair or unjust to put the applicant on trial. Thus the relevant factors require to be identified and then a balancing exercise undertaken by the court.

32 In...