D. P. P. -v- O'Driscoll,  IEHC 2 (2010)
|Docket Number:||2009 1643 SS|
|Party Name:||D. P. P., O'Driscoll|
|Judge:||Finlay Geoghegan J.|
THE HIGH COURT2009 1643 SS
IN THE MATTER OF SECTION 52(1) OF THE COURTS
(SUPPLEMENTAL PROVISIONS) ACT 1961
THE DIRECTOR OF PUBLIC PROSECUTIONS
(AT THE SUIT OF GARDA BARRY O'MAHONY)PROSECUTORAND
JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 14th day of January, 2010
This consultative case-stated of Judge David McHugh, a Judge of the District Court, assigned to the Dublin Metropolitan District, arises out of complaints originally set out in nineteen summonses and then consolidated in one summons, that on 17th November, 2008, at The Piggery, Megan's Lane, Mount Seskin, Tallaght, Dublin 24, the accused did cruelly ill-treat an animal, to wit, failure to take appropriate care of nineteen dogs, contrary to s. 1 of the Protection of Animals Act, 1911, as amended by the Protection of Animals Act, 1965 and s. 48 of the Control of Horses Act, 1996.
Arising out of two distinct submissions made by the solicitor for the accused at the conclusion of the prosecution case, the learned District Judge, whilst rejecting each of the submissions made on behalf of the accused, agreed to state the following two questions to the High Court:-
(i) Do the circumstances set forth above give rise to a reasonable cause to suspect, on the part of a member of an Garda Síochána, that an offence was being or had been committed under the Control of Horses Act 1996 such that pursuant to section 34(1) of the Control of Horses Act 1996 a member of an Garda Síochána was entitled, without warrant to enter onto the Piggery and adjacent lands?
(ii) Is the wording of the alleged offence i.e. ill-treat to wit "failure to take appropriate care" of a dog, sufficiently precise such that the Defendant is aware with appropriate precision of the offence alleged against him?
At the hearing before me, the solicitor for the accused indicated that he was no longer pursuing the second objection before the District Judge and it was agreed that, in such circumstances, it was unnecessary for me to consider the second question stated by the District Judge. This judgment is concerned with the first question alone.
It was also agreed, in accordance with the decision of Laffoy J. in National Authority for Occupational Safety and Health v. O'K. Tools Hire and Sales Limited  1 I.R. 534, that this Court has jurisdiction to reformulate the question for the purpose of more precisely targeting the issue on which the District Judge requires guidance. It was agreed between the parties that a small reformulation was appropriate, having regard to the terms of s. 34(1) of the Control of Horses Act, 1996. The Learned District Judge is seeking to ascertain whether, on the evidence adduced and accepted by him, it was open to him to find that a member of An Garda Síochána had a reasonable cause to suspect that an offence was being, or had been committed, under the Control of Horses Act, 1996, or that a person was causing harm to or mistreating a horse on a premises such that pursuant to s. 34(1) of the Control of Horses Act, 1996, a member of An Garda Síochána was entitled, without warrant, to enter onto The Piggery and adjacent lands.
The learned District Judge, in the case-stated, set out the evidence proved or admitted before him to his satisfaction and his findings of fact, insofar as relevant to the first question in the case-stated, in the following terms:
"2.3 Two members of An Garda Síochána, Garda Barry O'Mahony and Garda Brian O'Connor gave evidence in this matter. The first witness to give evidence was Garda Barry O'Mahony of Tallaght Garda Station. Garda O'Mahony stated that on 17th of November Inspector Robert Kenny of the Dublin Society for the Prevention of Cruelty to Animals ("hereafter "DSPCA") arrived at Tallaght Garda station at approximately 2.15 pm and spoke to him regarding an anonymous phone call they had received in relation to cruelty to horses at "The Piggery" on Megan Lane, Mount Seskin, Tallaght. Garda O'Mahony stated that he and Garda O'Connor accompanied Inspector Robert Kenny and Inspector Tony McGovern to Megan Lane. When he was asked why he did this, he said he went there because he believed there were horses being ill-treated. Garda O'Mahony stated that he and Garda O'Connor entered the land along with DSPCA Inspectors Kenny and McGovern under section 34 of the Control of Horses Act 1996.
. . .
2.4 Garda Brian O'Connor of Tallaght Garda Station gave evidence that he was told by Garda O'Mahony that he had had a conversation with DSPCA Inspector Kenny and that there was a report of cruelty to animals at the Piggery, Megan Lane, Tallaght, Dublin 24. Garda O'Connor stated that Inspector Kenny told him that the anonymous telephone caller had told a Ms. Lorna Swift, a telephone operator with the DSPCA, that a horse was being stabled within a building at the piggery. He attended at Megan Lane with Garda O'Mahony, Inspector Kenny and Inspector McGovern under the power of entry under the Control of Horses Act 1996. . Under cross-examination, Garda O'Connor stated that a DSPCA official cut the lock on the gate to gain entry to the premises.
2.5 Mr Robert Kenny, a former DSPCA inspector gave evidence that he was a DSPCA inspector for 19 years, and that they would get reports of the nature such as the one the subject of this prosecution between 40 and 60 times a year. He said that they rely on the public to convey information about the care of animals in the area, and most times the people making these reports to the DSPCA will not leave names. He said that on 17th November 2008, he responded to an anonymous call in relation to animal cruelty at the Piggery, Megan Lane, Tallaght at approximately 2pm. He called at Tallaght Garda Station and passed on to Garda O'Mahony the information he had received from Ms Lorna Swift, the telephone operator at the DSPCA. Mr Kenny stated that he and Inspector McGovern then accompanied Garda...
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