DPP (O' Mahony) (prosecutor) v O' Driscoll (accused)
| Jurisdiction | Ireland |
| Judge | Ms. Justice Finlay Geoghegan |
| Judgment Date | 14 January 2010 |
| Neutral Citation | [2010] IEHC 2 |
| Judgment citation (vLex) | [2010] 1 JIC 1401 |
| Court | High Court |
| Date | 14 January 2010 |
[2010] IEHC 2
THE HIGH COURT
BETWEEN
AND
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(1)
PROTECTION OF ANIMALS ACT 1911 S1 (UK)
PROTECTION OF ANIMALS ACT 1965
CONTROL OF HORSES ACT 1996 S48
CONTROL OF HORSES ACT 1996 S34(1)
NATIONAL AUTHORITY FOR OCCUPATIONAL SAFETY & HEALTH v OK TOOLS HIRE & SALES LTD 1997 1 IR 534
CONTROL OF HORSES ACT 1996 S34
CONTROL OF HORSES ACT 1996 S35
DPP v BYRNE 2003 4 IR 423
CONTROL OF HORSES ACT 1996 S35(1)
CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S8
CRIMINAL PROCEDURE ACT 1993 S3(1)(A)
CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S8(2)
CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S8(2)(B)
BYRNE v GREY 1988 IR 31
CONTROL OF HORSES ACT 1996 S34(3)
WALSH CRIMINAL PROCEDURE ROUNDHALL 2002
DPP v FARRELL UNREP CLARK 16.07.2009 2009 IEHC 368
DPP v FINNEGAN UNREP CLARK 5.11.2008 2008/18/3786 2008 IEHC 347
CRIMINAL JUSTICE ACT 1977 S23 UK
DPP v CASH 2008 1 ILRM 443
HUSSEIN v CHONG FOOK KAM 1970 AC 942
DUMBELL v ROBERTS 1944 1 AER 326
Criminal law - Evidence law - Consultative case stated - Reasonable cause - Warrant - Anonymous call - Horse mistreatment - Control of Horses Act 1996
Facts: On a consultative case stated from the District Court, the question arose as to whether a member of An Garda Siochana had a reasonable cause to suspect that an offence was being or had been committed under the Control of Horses Act 1996 or that an animal was being harmed or mistreated such that a Garda could enter without warrant a specific premises pursuant to s. 34 of the Act. The accused had submitted at the end of the prosecution case that the Gardai did not have reasonable cause that an offence was being committed under the Act of 1996. The Dublin Society for the Prevention of Cruelty to Animals had received an anonymous phone call regarding animal welfare and an inspector thereof had arrived at a Garda Station to convey this phone call information upon which the Gardai Siochana had acted.
Held by Finlay Geoghegan J. That as the source was anonymous the lack of particularity or facts in the complaint as communicated to the Gardai fell short of what could constitute reasonable grounds upon which a Garda could have cause to suspect that an offence was being committed or that a horse was being harmed or mistreated at a specific premises. Where a third party complaint was communicated to a member of An Gardai Siochana via a credible person, it was not open to a member of An Garda Siochana to exercise their powers conferred by s. 34(1) simply as the third party was a credible person. The preconditions to s. 34 had to be satisfied prior to the powers therein being exercised.
Reporter: E.F.
Ms. Justice Finlay Geoghegan delivered on the 14th day of January, 2010
1. 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 17 th 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.
2. 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?
3. 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.
4. 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 [1997] 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.
5. 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 "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 17 th 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.
...
3 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.
4 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 17 th 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 O'Mahony and Garda O'Connor to the Piggery in Megan Lane. He saw a horse in the field, and noted that it was not in a bad way, but the information he received concerned a horse that was housed in the Piggery. He stated that he entered the property by climbing over a gate. .... He was also cross-examined as to the information he received from Ms. Swift. Mr. Kenny said he thought that Ms. Swift would have taken a note of her conversation with the anonymous telephone caller. Mr. Dore [solicitor for the accused] requested that this note be produced by the prosecution; however, it was not.
....
5 2.9 Inspector Tony McGovern stated he has been an inspector for 5 years. He said that on 17 th of November 2008 Mr Kenny and himself responded to a call in relation to cruelty to horses at the Piggery, Megan Lane, Tallaght. He said that Robert Kenny told him that the anonymous telephone caller had said to Ms. Swift that a dog was chasing a horse. They spoke to Gardai O'Mahony and O'Connor and then proceeded to the Piggery. He gave evidence that they entered the property by climbing over a gate and entering a building....
6 2.10 Mr. James Cahill gave...
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