THE HIGH COURT
			JUDICIAL REVIEW
			1999  No. 156JR
BETWEEN
CORNELIUS HOURIGAN
			APPLICANT
AND
JUDGE JOHN NEILAN, JUDGE CARROLL MORAN, 
THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND 
THE ATTORNEY GENERAL 
			RESPONDENTS
Judgment of Mr. Justice Roderick Murphy dated the  30th day of November 2000.
1.  APPLICATION
	The Applicant  is a sheep farmer with an extensive holding in Dysart,  Mullingar, County Westmeath.   He claims Order of Certiorari quashing Orders made by Judge Neilan at Mullingar District Court on the 25th of January 1999 and similar Orders made by Judge Moran at the Mullingar Circuit Court on the 10th of February 1999.
	The grounds upon which the Applicant seeks relief’s are:-
(i)	The fundamentals of justice and fair procedures were disregarded by the Judge of the District Court;
(ii)	The Order as issued by the District Court were misleading on their face as they recited that the Applicant was convicted on the 29th of January 1999 rather than on 25th of January
(iii)	The date of the listing of the Appeal to the Circuit Court was an unreasonably early date;
(iv)	The Circuit Court Judge acted on irrelevant and inadmissible evidence in the hearing of the Appeal;
(v)	Section 1 of the Protection of the Animals Act 1911 provides that if an owner of animals is convicted of cruelty contrary to that section, such owner shall not be liable to imprisonment;
(vi)	Both the District and the Circuit Court Judge heard in the exercise of jurisdiction in convicting the Applicant on eleven different offences of allowing carcasses to be unburied;
(vii)	Bearing in mind the totality of fines imposed, the offences were no longer minor offences.
	These grounds can be classified as jurisdictional, procedural and statutory grounds.
PREVIOUS PROCEEDINGS
	The Applicant was summonsed on two counts of cruelty to animals and eleven counts of unburied carcasses of sheep on his farm.
	The counts of cruelty related to the alleged ill-treating of ten sheep by omitting to provide such animals with adequate food and water and failing to provide adequate animal husbandry practices to such an extent as to cause such animals unnecessary suffering and to cruelly ill-treat forty sheep by omitting to shear such sheep and allowing the build-up faeces to such an extent as to cause the animals unnecessary suffering, contrary to Section 1 of the Protection of Animals Act, 1911 as amended by the Protection of Animals Act, 1965 and Section 10 of the Control of Dogs Act, 1986.  
	In respect of unburied carcasses the several summonses related to the permitting of carcasses of dead sheep to remain unburied without reasonable excuse, in a place to which a dog could gain access contrary to Section 24 of the Control of Dogs Act, 1986.  
	The Judge of the District Court convicted the Defendant, ordered him to be imprisoned for a period of three months and, in respect of the counts of cruelty, to pay a fine of £500.00 within thirty days, and in default of such payment to be imprisoned for a period of 5 days.
	In respect of the unburied carcasses the Judge of the District Court convicted the Defendant and Ordered the payment of a fine of £500.00 in respect of each charge
	On the hearing of the Appeal at Mullingar Circuit Court on the 10th of February 1999, the Circuit Judge dismissed the appeal, affirmed the conviction and Order of the District Court and further Ordered the destruction of the animals the subject matter of the convictions pursuant to Section 2 and 3 of the Protection of Animals Act, 1911.
	On the 25th of April 1999 the Applicant was arrested.  On the 28th of April 1999 Budd J. granted leave for Judicial Review and granted the Applicant bail two days later.
	The Judicial Review was heard on the 27th of June 2000 before this Court.
2.  APPLICANT’S CASE
	The Applicant’s Affidavit sworn the 6th of April 1999 refers to the Applicant being engaged in sheep farming since 1982.  The Applicant’s avers that on the 26th of May 1998 his farm was visited the Veterinary Inspector, Mr. Patrick McArdle, accompanied by Gardaí.  The Applicant says that some of his sheep died and the Veterinary Inspector was not happy with the operation of his farm.  On the following day his farm was visited by a Veterinary Officer, Mr. Sean O’Laoide and by Sergeant Dennis Shields.  Sergeant Shields visited again on the 29th of May 1998 accompanied by Mr. Raymond Finn, Veterinary Inspector.  Summons issued on the 26th of November 1998, six months later.  These were returnable for Mullingar District Court on the 11th of December 1998.  The Applicant does not make any reference to what happened during that six month period.  
	The Applicant says he was unable to organise legal representation for the 11th of December 1998 as he was in prison from the 2nd to 7th of December, on foot of committal warrants for the non payment of fines.  It is unclear from his Affidavit as to the reason for his committal.  
	He appeared in Court, sought an adjournment and obtained the services of a Solicitor.   A further adjournment was granted due to hospitalisation and the matter came before the District Court on the 25th of January 1999.  
	The prosecution called both veterinary and Garda witnesses.  Mr. McArdle, Veterinary Surgeon, gave evidence partly by showing a video tape that had been taken on the 26th of May 1998.
	The Applicant, in his Affidavit, avers that the Judge asked Mr. McArdle to stop the video tape as he had seen enough carcasses and, in his comments and handling of the case appeared that have made up his mind about the case. 
	The Applicant said that there was an outbreak of pasteurella pneumonia in his flock and said that the prosecution witnesses were mistaken about the fact that there were unburied carcasses.  The Applicant averred that once he had given that evidence the Judge said that he would not accept his evidence and, the Applicant avers, was given less credence because his evidence was on affirmation.  Recognisances were fixed in his own bond of £1,000.00 and one independent surety of £20,000.00.  The Applicant averred that the Judge said to him that he wanted to ensure that he would not remain at liberty and that he wanted to protect his flock from him.  He could not get an independent surety in that sum.  He was taken into custody, was taken into hospital and got a variation of bail terms.
	Bail terms were reduced in the Circuit Court.  The Applicant says when he returned home his house had been ransacked and property was missing including valuable paintings.  Many of his sheep were killed by predators.  
	He said he did not attend the Circuit Court appeal hearing on the 10th of February as he was not well enough physically or mentally.   He arranged for a friend of his to come to Court and confidently believed that the appeal would be adjourned due to ill health.  His appeals were dismissed. 
	He says that the Circuit Court Judge could have dismissed his appeal due to his not being present in Court, but did more than that and heard the case and accordingly acted without jurisdiction or in excess of jurisdiction.
Applicants submissions on Jurisdiction and Procedure
	Counsel for the Applicant submitted in relation to the grounds as follows:-
	The correct course for the Circuit Court Judge was to strike out the Applicant’s appeal, when the Applicant did not appear in Court.  In  M’Monagle v Donegal Justices [1905] 2 IR644, where there was no appearance on behalf of Mr. M’Monagle, the Court of Quarter Sessions ordered the appeal to be struck out.  The prosecutor argued that under Section 24, Clause 6 of the Petty Sessions (Ireland) Act, 1851, where notice had been given the only jurisdiction of the Court was to confirm, vary, or reverse the Order appealed from; there was no jurisdiction to strike out the appeal.  
	The prosecutor had obtained a conditional Order for writ of Mandamus directing the Chairman and Justices to hear and determine the appeal.
	Cause having been shown the opposite party argued that default of appearance was equivalent to a non-prosecution and the proper cause to adopt was to strike out the appeal. 
	O’Brien, L C J referred at 646-7 to Clause 6 and asked:-
	"How can the Court “entertain” the appeal unless the Appellant, or someone representing him, is there to bring the facts before the Court, and to say, “I am here to prosecute the appeal”?  If there is no one to prosecute, the Court cannot entertain the appeal, and the entertaining the appeal is a condition precedent to confirming, varying, or reversing it." 

decision on Jurisdiction and procedure.  
	While the Applicant says he did not attend the Circuit Court he said he arranged for a friend of his to tell the Circuit Court Judge of his predicament.  He does not say whether he was represented by Solicitor or not.  But it is clear that he was represented by his Solicitor on February 10th, 1999 and that there was a hearing.
	Sergeant Dennis Shields, who was at the Circuit Court, averred to the fact that neither the Applicant’s Solicitor nor the Applicant’s friend could inform the Court of the Applicant’s whereabouts.  More particularly he says that the Applicant’s Solicitor referred to a telephone call that he had received, to the effect that the Applicant would see all of them in a few years.
	The Circuit Court Judge adjourned proceedings briefly to allow the Gardaí to search the Applicant’s farm.  The Applicant could not be found.  The hearing continued when the Gardaí returned.  
	The Solicitor for the Applicant made submissions in addition to cross examining witnesses for the prosecution.  
	On this basis it would seem to me that M’Monagle v the Chairman and Justices of County Donegal has no application.  Clearly the Circuit Court had power to “entertain” the appeal where the Applicant was represented.
	Counsel for the Respondents further submits that in order to succeed the Applicant must show, on the balance of probabilities, that there was a “clear departure from fair and constitutional procedures” in the conduct of the hearing.  It seems to me that the proceedings did not deprive the Applicant of such procedures.  The Court did not disregard either fundamentals of Justice or fair procedure nor did the Court act on irrelevant or inadmissible evidence.
	Moreover the date of the listing of the Appeal could not be seen as an unreasonable early date given that the Applicant’s Solicitor appeared and did not apply to have an adjournment.  Moreover, the non-appearance of the Applicant and the bizarre message to his Solicitor, shows a cavalier regard for his appeal and for the Court.
	Accordingly, it seems to me that State (Healy) v Donoghue [1976] IR325 wherein in Kenny J. stated that 364 that “Speedy or Summary Justice is often injustice” has no application.
	The Applicant also submits that the Circuit Court Judge acted on irrelevant and inadmissible evidence in the hearing of the appeal.  The Respondent refers to the direct evidence of Sergeant Shields which, in his submission, demonstrates that the Circuit Court Judge did not act on irrelevant and inadmissible evidence in the hearing of the Appeal.  There may be in the Applicant’s mind a confusion between the evidence heard before the Circuit Court and that heard before the Judge of the District Court.
Applicant’s Submissions on Statutory Ground
	The Applicant also submits that Section 1 of the Protection of Animals Act, 1911 provides that if an owner of animals is convicted of cruelty contrary to that Section, such owner shall not be liable to imprisonment.
	Subsection 1 of that Act is amended by Section 20 (1) of the Control of Dogs Act, 1986.  This Section, as amended, provides that a person found guilty of an offence of cruelty within the meaning of the provision is liable on summary conviction thereof in respect of a first or second offence to a fine not exceeding £500.00, or to imprisonment for a term not exceeding three months or, at the discretion of the Court, to both such fine and such imprisonment.
DECISION ON STATUTORY GROUND
	The District Court found that the Applicant did cruelly ill-treat forty sheep by omitting to sheer such sheep allowing the build up of faeces to such an extent as to cause the animals unnecessary suffering contrary to Section 1.  Section 1 (1)(a) relates, inter alia, to ill treating any animal or causing or procuring or, being the owner, permitting any animal to be so used, or shall, by wantonly or unreasonably doing or omitting to do any act,.....cause any unnecessary suffering.  It is clear that the subsection relates not alone to cruelty by commission but also to cruelty by omission.
	Subsection 2 of that Section deals with the failure to exercise reasonable care and supervision in respect of the protection of the animal.  In such a case the owner shall not be liable to imprisonment without the option of a fine.  
	There is no finding of the District Court that the Applicant permitted cruelty by reason only of his having failed to exercise such care and supervision.
	In this regard the Circuit Court affirmed the conviction and Order of the District Court and, as noted above, further ordered the destruction of the animals the subject matter of the convictions subject to Section 2 and 3 of the 1911 Act.
	Both the District Court and the Circuit Court were entitled so to do. 
	In the circumstances this Court refuses the Application.