DPP (Garda O'Mahony) v O'Driscoll

• Jurisdiction: Ireland
• Judge: Mr Justice Finnegan
• Judgment Date: 01 July 2010
• Neutral Citation: [2010] IESC 42
• Court: Supreme Court
• Date: 01 July 2010

[2010] IESC 42

THE SUPREME COURT

Denham J.

Finnegan J.

O'Donnell J.

Record No. 23 and 185/10

DPP (Garda O'Mahony) v O'Driscoll

IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA BARRY O'MAHONY)

PROSECUTOR/APPELLANT

and

PHILIP O'DRISCOLL

ACCUSED/RESPONDENT

PROTECTION OF ANIMALS ACT 1911 S1 (UK)

PROTECTION OF ANIMALS (AMDT) ACT 1965 S4

CONTROL OF DOGS ACT 1986 S20

CONTROL OF HORSES ACT 1996 S34(1)

COURTS SUPPLEMENTAL PROVISIONS ACT 1961 S52(1)

DPP v BYRNE 2003 4 IR 423

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S8(2)

MISUSE OF DRUGS ACT 1977 S26(2)

DPP v FARRELL UNREP CLARK 16.7.2009 2009 IEHC 368

DPP v FINNEGAN UNREP CLARK 5.11.2008 2008/18/3780 2008 IEHC 347

DPP v CASH 2008 ILRM 443

CONTROL OF HORSES ACT 1996 S35

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S82

MISUSE OF DRUGS ACT 1977 S26

DPP v BYRNE 2003 4 IR 423

CONTROL OF HORSES ACT 1996 S34(3)

DPP v REDDAN 1995 3 IR 560

DPP v FINNEGAN 2009 1 IR 48

ROAD TRAFFIC ACT 1994 S10

DPP v PENNY 2006 3 IR 553

DPP v FARRELL UNREP CLARK 16.7.2009 2009 IEHC 368

DPP v CASH 2008 1 ILRM 443 2007 17 3461 2007 IEHC 108

MISUSE OF DRUGS ACT 1977 S23

DPP v CASH 2009 1 IR 48 2008/18/3786 2008 IEHC 347

DPP v CASH UNREP HARDIMAN 18.1.2010 2010 IESC 1

O'HARA v CHIEF CONSTABLE OF THE RUC 1997 AC 286

PREVENTION OF TERRORISM (TEMPORARY PROVISIONS) ACT 1984 (UK)

HUSSEIN v CHONG FOOK KAM 1970 AC 942

R v DA SILVA 2006 4 AER 900

CRIMINAL LAW

Evidence

Admissibility - Search without warrant - Reasonable cause to suspect offence committed or being committed - Third party complaint - Principles to be applied - Whether hearsay or anonymous information could ground garda's reasonable suspicion that statutory offence being committed or that animal mistreated - Particularity of complaint - Whether hearsay of belief based on undisclosed grounds sufficient to establish reasonable grounds - DPP v Byrne [2003] 4 IR 423 distinguished; DPP v Farrell [2009] IEHC 368, [2009] 4 IR 689; DPP v Finnegan [2008] IEHC 347, [2009] 1IR 49; DPP v Cash [2007] IEHC 108 (Unrep, Charleton J, 28/3/2007); DPP v Reddan [1995] 3 IR 560; DPP v Penny [2006] 3 IR 553; O'Hara v Chief Constable of the RUC [1997] AC 286; R v Da Silva [2006] 4 All ER 900 considered - Control of Horses Act (No 37) 1996, s 34 - Appeal allowed; cross-appeal dismissed (2010/23 & 185 - SC - 1/7/2010) [2010] IESC 42

DPP (Garda O'Mahony) v O'Driscoll

1 Judgment of Mr Justice Finnegan delivered on the 1st day of July 2010

2 Finnegan J. [nem diss]

3 The respondent came before the District Court on nineteen summonses each of which related to a complaint in respect of one of nineteen dogs of cruelty contrary to the provisions of the Protection of Animals Act 1911 section 1 as amended by section 4 of the Protection of Animals (Amendment) Act 1965, section 20 of the Control of Dogs Act 1986 and the Control of Horses Act 1996, at The Piggery, Megan's Lane, Mount Seskin, Tallaght, Dublin 24. On consent the nineteen summonses were consolidated into a single summons concerning the nineteen dogs. The matter was heard over two days on the 19 ^th June 2009 and the 20 ^th July 2009. A major part of the evidence adduced on behalf of the prosecution concerned what was found by Gardai and officers of the Dublin Society for the Prevention of Cruelty to Animals ("the D.S.P.C.A.") when the premises at The Piggery were entered on reliance on the power of entry provided for in the Control of Horses Act 1996 section 34(1). At the conclusion of the prosecution the solicitor for the respondent, Mr Dore, submitted that the Gardai did not have reasonable cause to suspect that an offence was being, or had been, committed under the Act and in consequence were not entitled to enter onto the premises. The District Court judge rejected the submission but, at Mr Dore's request, stated a case to the High Court pursuant to the Courts (Supplemental Provisions) Act 1961 section 52(1). Two questions were submitted to the High Court for consideration the second of which was not pursued before the High Court. The first question was reformulated in the High Court as follows:-

"Was it open to the learned District judge on the evidence adduced and accepted by him to find that a member of An Garda Síochána had 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 the premises such that pursuant to section 34(1) of the Control of Horses Act 1996 a member of An Garda Síochá na was entitled, without warrant, to enter onto The Piggery and adjacent lands."

4 The learned trial judge answered the question in the negative. From her order and judgment the appellant appeals to this court.

The Statutory Provision

5 The Control of Horses Act 1996 section 34 provides as follows:-

6 2 "34(1) Where an authorised person or a member of the Garda Síochána has reasonable cause to suspect that -

7 (a) an offence is being or has been committed under this Act in or on any premises or in any vehicle, or

8 (b) a person is causing harm to or mistreating a horse on any premises or in any vehicle,

9 such person or member may, subject to subsection (2) stop any such vehicle or enter (if necessary by the use of reasonable force) any such premises or any such vehicle, and there, or at any other place, and with such authorised persons and members of the Gardai Síochána (if any) as the person or member considers appropriate -

10 (i) search for any horse,

11 (ii) search for and examine any document and take extracts from and copies of any such document, and

12 (iii) exercise in the case of an authorised person any of the functions conferred on an authorised person, or in the case of a member of the Garda Síochána any of the functions conferred on a member of the Garda Síochána under this Act.

13 (2) In the exercise of a power of entry by an authorised person or a member of the Garda Síochána into any premises under this Act, such other persons as may be necessary for the purpose of assisting the authorised person or member in the exercise of his or her functions under this section may be brought into such premises and the authorised person, member or any such other person may take with them into the premises such equipment as they consider necessary.

14 (3) An authorised person or a member of the Garda Síochána shall not, other than with the consent of the occupier, enter a dwelling unless the person or member has obtained a search warrant from the District Court under section 35 authorising such entry.

15 (4) Where an authorised person or a member of the Garda Síochána in the exercise of his or her powers under this section is prevented from entering any premises, an application may be made under section 35 for a search warrant authorising such entry."

16 Section 35 of the Act of 1996 is relevant to the first submission made on behalf of the respondent in the High Court and to this court. Section 35 provides as follows:-

17 2 "35(1) If a judge of the District Court is satisfied by the information on oath of an authorised person or a member of the Garda Síochána that there are reasonable grounds for suspecting that -

18 (a) there is evidence on any premises in relation to an offence under this Act, or

19 (b) a person is causing harm to or mistreating a horse on any premises,

20 situated within the district court district to which the judge is for the time being assigned, the judge may issue a search warrant.

21 (2) A search warrant issued under this section shall be expressed and operate to authorise a named member of the Garda Síochána accompanied by such members of the Garda Síochána or authorised persons and with such equipment as the named member thinks necessary, at any time or times within one month from the date of issue of the warrant, on production of it if so requested, to enter (if necessary by reasonable force) the premises named in the warrant and exercise any powers conferred on a member of the Garda Síochána under this Act."

The Evidence before the District Court

22 Before the District Court were photographs of what was found upon the premises being entered. The case stated sets out the relevant evidence before the District Court as follows:-

23 2 "2.3 Two member 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 the 17 ^th November Inspector Robert Kenny of the Dublin Society for the Prevention of Cruelty to Animals arrived at Tallaght Garda Station at approximately 2.15 p.m. and spoke to him regarding an anonymous phone call they had received in relation to cruelty to horses at The Piggery on Megan's Lane, Mount Seskin, Tallaght. Garda O'Mahony stated that he and Garda O'Connor accompanied Inspector Robert Kenny and Inspector Tony McGovern to Megan's 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 D.S.P.C.A. Inspectors Kenny and McGovern under section 34 of the Control of Horses Act 1996. Garda O'Mahony stated that he entered the outhouse on the left, where there were housed nineteen dogs, two cats and two pigs. Garda O'Mahony noted that this was at about 3 p.m. and there was little natural light, little bedding and there were faeces and urine on the floor of all the kennels. There was a strong smell of urine in the building.

24 3 2.4 Garda Brian...