Barry's Case

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 22 February 1909
• Court: King's Bench Division (Ireland)
• Date: 22 February 1909

The King (at the Prosecution of James Barry)

and

Daniel Mahony, One of the Divisional Justices of the Police District of Dublin Metropolis (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1909.

Food and Drugs Acts, 1875, 1899 (38 & 39 Vict. c. 63; 62 & 63 Vict. c. 51) — Prosecution by member of public — Analyst's certificate — Certificate obtained in another proceeding.

Held, on motion to make absolute a conditional order for certiorari, that the conviction could not be sustained.

Guardians of Enniskillen Union v. Hilliard (14 L. R. Ir. 214) and Connor v. Butler ([1902] 2 I. R. 569) followed.

On the 15th December, 1908, a summons was issued against the prosecutor, James Barry, on the complaint of Kate Purcell, that he did on the 2nd November, 1908, at 106 Lower Dorset Street, sell to her prejudice as purchaser thereof an article of food, to wit new milk, which was not of the nature, substance, and quality of the article demanded by her, but was milk adulterated by the addition of 41 per cent, of its weight of water, making thereby a mixture of 100 parts of milk and 41 parts of water. The summons came on for hearing at the Dublin Police Courts before Mr. Mahony on the 22nd December, 1908. An objection was made on behalf of James Barry, that no copy of the analyst's certificate obtained on behalf of the prosecutor had been served with the summons, or at all, upon him in compliance with the provisions of section 19, sub-section 2, of the Sale of Food and Drugs Act, 1899. The hearing of the summons was adjourned to the 5th January, 1909, when an order was made by

the magistrate that Barry should pay a penalty for the offence, the sum of £15, and that he should pay to Kate Purcell the sum of £5 5s. 1d. for costs.

The evidence produced in support of the complaint consisted of the evidence of Kate Purcell, the complainant, who swore that Barry was a wholesale milk merchant at Santry, and that he supplied her since June, 1908, with six gallons of new milk per morning, and four gallons per afternoon.

On the 2nd November, 1908, about 3 p.m., Barry's man brought the afternoon supply, three gallons of which Kate Purcell put into a clean pan from which a sample was shortly afterwards taken by Mr. Tutty, a Corporation inspector under the Food and Drugs Act; that from the time the milk was delivered by Barry's man until the sample was taken by the inspector, Kate Purcell had not interfered with the milk, and that when she learned the result of the Corporation analysis she informed Barry's man. The inspector, having taken the sample, divided it into three parts, one of which he left with Sir Charles Cameron, the public analyst, who found that it contained 100 parts of milk and 41 parts of water. Barry was examined on his own behalf, and stated that on the occasion in question he made up the milk himself, and never tampered with it in any way. There was no evidence produced or tendered on behalf of the complainant to prove that any analysis of any milk purchased by the complainant from Barry had been made on her behalf by any analyst, nor was any evidence given or tendered of any certificate of such analysis having been produced by or on behalf of Kate Purcell. Prior to the conviction in question, Kate Purcell had been prosecuted at the instance of the Dublin Corporation in respect of the identical adulterated milk, and was subjected to a penalty of £10. The evidence tendered against her on that occasion was that of Inspector Tutty, and a certificate of the analyst was also produced. It was for the purpose of this prosecution by the Dublin Corporation that the sample of milk was procured by Inspector Tutty. The milk was purchased by Kate Purcell from Barry in the ordinary course of her business as a dairy proprietor, and was not purchased with a view to submitting same to analysis or for test purposes.

A conditional order for a writ of certiorari to quash the conviction was granted, in which the grounds relied on were as follows:—

(1) That no copy of the analyst's certificate obtained on behalf of the complainant was served with the summons.

(2) That under section 20 of the Food and Drugs Act, 1875, proceedings for the recovery of the penalty therein imposed should be taken by the person causing the analysis to be made.

(3) That the evidence of the analyst (Sir C. Cameron) as to the contents of a sample of new milk, submitted to him by Inspector Tutty for the purposes of a prosecution against Kate Purcell, the complainant herein, could not be evidence against the defendant.

(4) That the complainant's remedy was not by a summons like the present summons, but was the remedy prescribed by section 28 of the Food and Drugs Act, 1875.

(5) That in the case of wholesale deliveries of an article under a contract, the provisions of the Act of 1875 are not applicable. The amending Act of 1879 was expressly passed to meet such a case, and under that Act proceedings can only be taken by a public officer authorized under section 3 of the Act.

Kate Purcell showed cause.

Joseph O'Connor, for Barry, moved to make absolute the conditional order:—

The conviction on the 5th January cannot be sustained on the following grounds:—

1. No copy of an...