Nolan v DPP

JurisdictionIreland
JudgeBLAYNEY J.
Judgment Date20 October 1994
Neutral Citation1994 WJSC-SC 3751
Docket Number170/94,[S.C. No. 170 of 1994]
CourtSupreme Court
Date20 October 1994

1994 WJSC-SC 3751

THE SUPREME COURT

O'Flaherty J.

Egan J.

Blayney J.

170/94
NOLAN v. DPP
JUDICIAL REVIEW
BETWEEN/
JAMES NOLAN
Applicant/Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent/Appellant

Citations:

BOVINE TUBERCULOSIS (ATTESTATION OF THE STATE & GENERAL PROVISIONS) ORDER 1989 SI 308/1989 ART 7(1)(a)

DISEASES OF ANIMALS ACT 1966 S48(1)(a)

BOVINE DISEASES (LEVIES) ACT 1979 S23

BOVINE TUBERCULOSIS (ATTESTATION OF THE STATE & GENERAL PROVISIONS) ORDER 1989 SI 308/1989 ART 7

D V DPP 1994 1 ILRM 435

Z V DPP UNREP SUPREME 16.3.94 1994/7/1980

BOVINE DISEASES (LEVIES) ACT 1979 S23(b)

BOVINE TUBERCULOSIS (ATTESTATION OF THE STATE & GENERAL PROVISIONS) ORDER 1989 SI 308/1989 ART 7(1)

BOVINE TUBERCULOSIS (ATTESTATION OF THE STATE & GENERAL PROVISIONS) ORDER 1989 SI 308/1989 ART 7(2)

Synopsis:

CRIMINAL LAW

Offence

Prosecution - Restraint - Application - Grounds - Evidence - Availability - Risk of unfair trial - Whether cattle injected with unlawful substance - Cattle destroyed - Analysis of sub stance found in cattle - Analysis available to prosecution - Accused unable to perform similar tests - Admissibility of evidence a matter for trial judge - Injunction refused - (170/94 - Supreme Court - 20/10/94)- [1994] 3 IR 626

|Nolan v. Director of Public Prosecutions|

1

JUDGMENT delivered on the 20th day of October 1994 by BLAYNEY J.[NEM DISS]

2

In November 1992 the applicant/respondent (to whom I shall refer as the applicant) was served with eight District Court summonses, four of which alleged the same offence in respect of four different cows, and the remaining four of which alleged a different offence in respect of the same four cows.

3

The first offence charged was as follows:

"That you did on a date unknown between the 27th day of August 1991 and the 30th day of August 1991 at Ballycashin, Butlerstown, Co. Waterford, in the Court area and district aforesaid, introduce into the body of animal bearing tag No. a substance, to wit, turpentine, for the purpose of affecting the accuracy of a test of the said animal for bovine tuberculosis, in contravention of Article 7(1)(a) of the Bovine Tuberculosis (Attestation of the State and General Provisions) Order 1989 (S.I. 308/89) contrary to section 48(1)(a) of the Diseases of Animals Act, 1966, as amended by Section 23 of the Bovine Diseases (Levies) Act, 1979."

4

The second offence charged was as follows:

"That you did on a date unknown between the 27th day of August 1991 and the 30th day of August 1991 at Ballycashin, Butlerstown, Co. Waterford, in the Court area and district aforesaid, being the owner of an animal bearing ear tag No. - did fail to take such care of the said animal as would ensure that Article 7(1) of the Bovine Tuberculosis (Attestation of the State and General Provisions) Order 1989 (S.I. 308/89) was not contravened in relation to the said animal, in contravention of Article 7(2) of the said Order, contrary to section 48(1)(a) of the Diseases of Animals Act, 1966 as amended by section 23 of the Bovine Diseases (Levies) Act, 1979."

5

Article 7 of the 1989 Order under which both changes are brought provides as follows:

6

2 "7.(1) No person shall -

7

(a) give to, or introduce into the body of, an animal any substance, or

8

(b) carry out any process or operation (including the making or obliterating of any identification mark) on, or apply any treatment (including treatment for inducing, reducing or preventing swelling) to the body of an animal,

9

3 for the purpose of affecting the accuracy of any test of the animal.

10

(2) It shall be the duty of the owner or person in charge of an animal to take such care of the animal as will ensure that paragraph (1) of this Article is not contravened in relation to the animal."

11

The eight summonses came before the District Court in Waterford on the 10th December 1992 and were adjourned on a number of occasions on the application of the applicant.

12

On the 17th May 1993 the applicant was granted leave by the High Court to apply for an injunction by way of judicial review in respect of the District Court prosecutions on four grounds set out in the statement filed by the applicant. The application came before Barron J. on the 19th April 1994 when an order was made that the respondent (to whom I shall refer as the D.P.P.) be restrained from prosecuting the applicant on the eight summonses in question. From that order the D.P.P. appeals to this Court.

13

Of the four separate grounds for seeking an injunction set out in the applicant's grounding statement, only the first two were relied upon in the High Court and on appeal in this Court. They were as follows:

14

2 "1. The prosecution of the applicant on foot of the said summonses would be unfair and would constitute unfair procedures having regard to the fact that, notwithstanding the request made by the applicant that the carcases not be disposed of prior to their being inspected and examined on his behalf, the said carcases were so destroyed, thereby depriving the applicant of having independent tests carried out on his behalf for use in the conduct of his defence.

15

2. The prosecution of the applicant on foot of the said summonses would be unfair and would constitute unfair procedures having regard to the fact that the samples (or portions thereof) taken from the said carcases for the purposes of analysis were not available for independent analysis on behalf of the applicant."

16

The broad facts out of which the prosecutions arise, as appears from the affidavits of the applicant, are as follows:

17

The applicant is a farmer and in August 1991 had a heard of 394 cattle. On the 27th August a veterinary surgeon called Ivor Gordon carried out an official T.B. test on his herd. He returned to read the results of the fest on the 30th August and found that there were fifty six reactors in the herd. A further three cattle were declared to be reactors when officials of the Department of Agriculture checked the results of the test.

18

The Department of Agriculture arranged for...

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