THE SUPREME COURT
Appeal No. 206/2009
Denham C.J.
O’Donnell J.
Clarke J.
John A. Burke
Applicant/Appellant
v.
Robert Lynch and Others under
Superintendent Tipperary Garda Station
and the Director of Public Prosecutions
Respondents
Judgment of the Court delivered on the 12th day of July, 2016 by Denham C.J.
1. This is an appeal by John A. Burke, the applicant/appellant, who is referred to as “the appellant”, from the decision of the High Court (Peart J.) delivered on the 18th May, 2009, where the learned trial judge refused an application for leave to appeal by way of judicial review for an injunction preventing the gardaí from delivering fine notices to the appellant’s house.
The High Court
2. The High Court held, in refusing to grant leave to apply by way of judicial review:-
“According to the applicant's grounding affidavit he returned home on the 29"' April 2009 to find that a letter had been left on the kitchen floor of his house. That letter appears to have been a letter informing him that if he did not pay certain fines in respect of which two warrants were in existence within a period of seven days from the 28th April 2009 he would be arrested.
The applicant has stated that no Garda or other person are allowed to enter his house without his permission.
He believes that these warrants relate to a fine of €500 imposed upon him by order of the District Court in Limerick and which proceedings are the subject of other judicial review proceedings (2008 No. 1120JR). Those proceedings are ongoing.
He states also that he has made complaints to the Garda Siochana Ombudsman
Commission, but that he has not received any satisfactory response.
While the Statement of Grounds filed on the present application seeks no particular relief, other than by simply stating that he seeks “Certiorari and Injunction”. It became clear during the application that what the applicant seeks is an order of certiorari quashing the letter of reminder which was left on his kitchen floor, and an injunction restraining the Gardai from entering his home for the purpose of leaving documents for him.
I was of the view that it was not arguable that these reminder letters were capable of being the subject of an order of certiorari, and that judicial review was not the appropriate mechanism to pursue an injunction to restrain the Gardai from entering his home in this way.
It is not apparent from the papers as to whether the Gardai made a forcible entry into his kitchen, or whether the door of his house is left open. Though not contained in the affidavit, it would appear that the applicant maintains that the summonses which ultimately gave rise to the fines were not properly served upon him, and that he did not appear in the District Court in answer to them. The fines were imposed in his absence. The other judicial review proceedings to which I have referred may relate to that matter. I am unaware as to whether or not the leave granted in those other proceedings act as a stay on the enforcement of these fines pending the determination of that case.
One way or another, I was of the view that the present application is misconceived and not one in which it is appropriate to grant leave as sought.”
Notice of Appeal
3. The appellant has filed a notice of appeal before this Court seeking to quash the order of the High Court and “to allow for the said Judicial Review to take place in due course.”
Motion
4. The appellant has also brought a motion before the Court seeking that additional evidence be brought before the Court.
5. The appellant deposed an affidavit on the 13th June, 2016, grounding the motion, which was considered by the Court.
6. In his affidavit the appellant alleges that the respondents, during a period of about twelve years, entered his family home and premises on an estimated 300 occasions. He also stated that he has been in court for 400 days during that period. He stated that there are no convictions against him and that he has a clean driving licence. He stated that he has made about 20 complaints to the Garda Ombudsman and the Fraud Squad. He says he has served six months and three days in prison on, what he states is, an “unlawful warrant”. He alleges that his animals were taken from him at that time and not returned.
7. The appellant also brought before the Court an affidavit he swore on the 23rd March, 2010, a purported letter to the Superintendent, Tipperary Garda Station, and a District Court order of the 10th November, 2009, convicting the appellant of an offence and committing him to prison.
8. The papers before the Court included an affidavit sworn by Garda Robert Lynch on the 3rd February, 2009, in separate proceedings, which cast some light on the background.
He stated:-
9. The Court has considered the papers filed on the appeal and on the motion. It has also considered the oral submissions made by the appellant.
10. This is an appeal from a refusal to grant an application for leave to apply for judicial review.
11. The Court is satisfied that there was no error by the High Court, and that there is no additional evidence such that would warrant a different approach. It was not arguable that the garda was not entitled to deliver mail as he did. He was entitled to deliver a letter by putting it through an open door.
12. Consequently, the Court concludes that, there being no error by the High Court, this appeal should be dismissed.
