Supreme Court quashes District Court orders due to lack of authentication and procedural impropriety in judicial review.

THE SUPREME COURT

[Appeal No: 398/2008]

Denham C.J.

Hardiman J.

Clarke J.

Between/

Dona Sfar

Applicant/Appellant

and

District Judge Flann Brennan, The Director of Public

Prosecutions, Ireland, and The Attorney General

Respondents

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

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 16th October, 2008.

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

(i) An order of certiorari quashing the District Court order of Judge Brennan dated the 12th February, 2008, and all

records and entries relating thereto and that same be quashed.

(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.

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.”

4. The appellant’s application was heard by O’Neill J. on the 14th and 15th 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.

5. (i) On the 16th October, 2008, O’Neill J. delivered an ex tempore judgment. He held that the appellant was served with a number

of summonses on the 16th 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.

(ii) The case had come on for hearing before the first named respondent on the 12th 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.

(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.

(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.

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.

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 22nd 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.

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.

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.

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 O.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

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

follows:-

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.

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:-

(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,

(b) Any decision or opinion of the European Commission of Human Rights so established on any question in respect

of which it had jurisdiction.

(c) Any decision of the Committee of Ministers established under the Council of Europe on any question in respect

of which it has jurisdiction.

3. That the learned Judge failed to apply EU Community law, particularly Directive No. 90/667/EEC 29 Nov. 1990.

4. The issues cannot be remitted to the District Court as the case is currently on appeal to the Circuit Court and the

District Courts estopped from dealing with the case.

5. That the learned Judge failed to give judgment on the issue as to whether the Protection of Animals Act 1911

authorized unwarranted entry into property other than knackeries.”

Submissions

12. Written and oral submissions were made to the Court by the appellant in person and by counsel on behalf of the second, third and

fourth named respondent.

Decision

13. The orders brought before the High Court by the appellant were referred to in the affidavit deposed on the 10th June, 2008, by

Inspector McGinn of Dundalk Garda Station.

14. At paragraph 10 Inspector McGinn deposed as follows:-

“The applicant was convicted of the said offences by the first named respondent, fined €200 in respect of each

conviction, amounting to a total fine of €3200, prohibited from keeping animals for a period of ten years and ordered to

pay €1600 witness expenses. The Court also ordered that the animals concerned be disposed of that recognisances for

appeal be fixed in the sum of €500 without surety and that execution be stayed in the event of an appeal being lodged. A

stay of 14 days was put on the disposal of the dogs pending an appeal. I beg to refer to the said convictions and orders,

upon which pinned together and marked with the letters and numbers “PLMCGO6” I have signed my name prior to the

swearing hereof.”

15. The sixteen orders of the District Court were exhibited and followed the form set out here:-

“ORDER

District Court Area of DUNDALK

CASE NO. S:2007/261672 CHARGE NO. 2

PROSECUTOR: The Director of Public Prosecutions at the Suit of Garda BARBARA BRACKEN Omeath

Accused: DONNA SFAR

129 OAKLAWNS, DUNDALK, LOUTH

At the sitting of the Court at DUNDALK, THE COURT HOUSE, DUNDALK, CO. LOUTH in the Court area and district aforesaid.

On the 12-Feb-2008, a complaint was heard and determined that the above-named accused of 129 OAKLAWNS, DUNDALK, LOUTH

On the 05-Mar-2007 at BALRIGGAN, KILCURRY, DUNDALK, LOUTH, in said DISTRICT COURT AREA OF DUNDALK, did cruelly ILL-TREAT

an animal, to wit, CAIRN CROSS, FEMALE

Contrary to Section 1 Protection of Animals Act, 1911, as amended by Protection of Animals Act, 1965 and Section 48 of the Control

of Horses Act 1996.

It was adjudged that the said defendant be convicted of said offence and pay a Fine of EUR 200.00 and Expenses of EUR 100.00

making a total sum of EUR 300.00 within 180 days and in default of payment of the said sum within the said period that the said

defendant be imprisoned in Mountjoy (Female) Prison for the period of 10 days unless the said sum be paid sooner.

Dated this: 12th February 2008

Signed FLANN BRENNAN

____________________

Judge of the District Court

I certify that the above is a true copy of the original which is held in my custody.

Signed: Elaine Clarke

__________________

Clerk of the District Court

Dated: 25th March 2008

___________________ ”

16. In oral submissions the appellant stated that she had made numerous attempts to obtain a copy of the orders. At one stage, she

informed the Court, she had been told that it was a virtual order and was not yet available.

17. The copy order ultimately received did not contain any part of an order prohibiting the appellant from keeping animals or matters

relating to an appeal, if so lodged. The part of the purported District Court order relating to the ancillary orders only became available

at the start of the High Court hearing of this judicial review, in October 2008.

18. The partial document that was before the High Court and this Court has a number of numbers on top of the page, presumably

referring to case numbers. It is apparently the second page of a document, (2 of 2) appearing on the right side of the document. The

document is hand written and states:

“and the Court did further order in respect of each conviction that the Defendant, Dona Sfar be prohibited from keeping

animals for a period of ten years. Further that the animals the subject matter of these proceedings be disposed of. That

recognisances for appeal be fixed in the sum of €500 without surety.

That execution be stayed in the event of an appeal being lodged.”

It is signed and dated 12th February, 2008, by the District Judge.

It is signed by the District Court Clerk on the 9th May, 2008, certifying it being a true copy of the original.

19. The date of the order is the same as that on the orders setting out the conviction etc. above, but the certification is a later

date.

20. This second sheet of a document was not proved by affidavit, or otherwise.

21. It was this document which was before the High Court. It was then that counsel for the State, clearly in view of the fact that

the appellant is a lay litigant, referred to an error in the use of the word “animals” instead of “dogs”. The High Court acted upon the

submission of counsel for the State.

22. This Court was informed that after the judgment and order of the High Court the first named respondent amended the District

Court order on the 12th July, 2009.

23. The amended order was made while this appeal was pending before the Court. No stay had been granted.

24. This Court was handed a document which is the same as the hand written document produced before the High Court. However,

the word “animals” has been scratched out and the word “dogs” has been inserted. It appears that the first named respondent has

initialled the amendment and dated it “2/7/09”.

25. However, this second page of the document remains dated the 12th February, 2008, and certified to be a true copy on the 25th

March, 2008, with the addition of a stamp stating that it is a true copy, signed by the Court Clerk, and dated the 3rd July, 2009.

Law and Rules

26. By the Courts Act, 1971, the District Court was stated to be a Court of Record.

27. Section 14 of the Courts Act, 1971, as substituted by s. 20 of the Criminal Justice (Miscellaneous Provisions) Act, 1997,

provides:-

“(1) In any legal proceedings regard shall not be had to any record, relating to a decision of a judge of the District Court

in any case of summary jurisdiction, other than an order which, when an order is required, shall be drawn up by the

District Court clerk and either—

(a) signed by the judge who made the order, or

(b) affixed with the seal of the District Court in respect of the District Court Area in which the order was made or,

where the order was made by a judge of the District Court sitting in the Dublin Metropolitan District, affixed with the

seal of that District,

or a copy thereof certified in accordance with rules of court.

(2) A seal of the District Court when affixed to an order drawn up in accordance with this section shall be authenticated

by the signature of the judge who made the order or the District Court clerk who drew up the order.”

The District Court is thus a Court of Record which speaks through its record and not otherwise.

28. A party is entitled to bespeak the order. Order 35 of the District Court Rules, as in effect before the 23rd March, 2009, stated:-

“(1) Where, pursuant to section 14 of the Courts Act, 1971, a copy of an order made in any case of summary jurisdiction

is required, the order shall be drawn up by the Clerk for the court area wherein the order was made and shall be signed by

a Judge. The Clerk shall retain such order in his or her custody.

(2) Any person having a bona fide interest in the matter may, upon payment of the prescribed fee (if any), obtain from

the Clerk, a copy of the order (in the Form 35.1, 35.3, or 35.4, Schedule B, as appropriate) certified by the Clerk in

accordance with the provisions of rule 4 of this Order.

2. Any party in any proceedings may, upon payment of the prescribed fee (if any), obtain from the Clerk a copy of any

information, written complaint or deposition which is in his or her custody and was made or taken in any case in his or her

court area, and of any order which is in that Clerk’s custody and was made by a Judge in the preliminary examination of

any indictable offence in the said court area.

3. Where a Judge is satisfied that a copy of an order or other document is reasonably required by any person for the

purpose of any legal proceedings, such Judge may direct the Clerk to furnish a copy of such order or other document to

such person upon payment by such person of the prescribed fee (if any).

4. A copy of an order or other document furnished under this Order shall be certified by the Clerk to be a true copy of the

original order or document as the case may be, which is in his or her custody.”

Decision

29. In this case the High Court quashed the orders on the 16th October, 2008. Thus, no orders were then extant. However, the

orders, having been quashed, were purported to be amended by the District Court judge. No new order was made, and the orders still

bear the date of 2008. It appears that the order of O’Neill J. was misinterpreted.

30. The situation now is that there are no orders of the District Court in proper form. The addendum to the quashed order before the

Court appears to have purported to be for all the purported orders.

31. There is no authenticated order of the full decision of the District Court. The authenticated orders exhibited by Garda Inspector

McGinn do not refer to or include ancillary orders.

32. In all the circumstances, I would quash all the orders as exhibited by Garda Inspector McGinn. I would quash also any purported

order setting out ancillary relief. In addition, I would quash the purported order of the District Court on the matter being remitted from

the High Court.

33. Consequently, I would allow the appeal. This Court has not addressed the issue of a retrial.