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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Dona Sfar v District Judge Flann Brennan, the Director of Public Prosecutions, Ireland, and The Attorney General [2012[ IESC 28 (15 May 2012)
Cite as: Dona Sfar v District Judge Flann Brennan, the Director of Public Prosecutions, Ireland, and The Attorney General [2012[ IESC 28
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Judgment Title: Dona Sfar v District Judge Flann Brennan, the Director of Public Prosecutions, Ireland, and The Attorney General
Neutral Citation: [2012[ IESC 28
Supreme Court Record Number: 398/2008
High Court Record Number: 2008 179JR
Date of Delivery: 15/05/2012
Court: Supreme Court
Composition of Court: Denham C.J., Hardiman J. Clarke J.
Judgment by: Denham C.J.
Status of Judgment: Approved
Outcome: Allow And Set Aside
THE SUPREME COURT
[Appeal No: 398/2008]
District Judge Flann Brennan, The Director of Public
Prosecutions, Ireland, and The Attorney General
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:
(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.
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.
Any other ground identified at a later date.”
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  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 ER 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:-
On that basis, the case will be remitted to the District Court.”
11. The appellant has appealed from the order and judgment of the High Court. The grounds advanced for the appeal were as follows:-
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.”
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.
14. At paragraph 10 Inspector McGinn deposed as follows:-
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:
That execution be stayed in the event of an appeal being lodged.”
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
27. Section 14 of the Courts Act, 1971, as substituted by s. 20 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, provides:-
(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.”
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:-
(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.”
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.