Sparrow v Minister for Agriculture, Fisheries and Food and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Sheehan |
| Judgment Date | 01 April 2009 |
| Neutral Citation | [2009] IEHC 151 |
| Court | High Court |
| Date | 01 April 2009 |
[2009] IEHC 151
THE HIGH COURT
BETWEEN
AND
AND
DISEASES OF ANIMALS ACT 1966 S49(1)(H)
NATIONAL BEEF ASSURANCE SCHEME ACT 2000 S35
SPARROW v JUDGE CONNELLAN & MIN FOR AGRICULTURE UNREP DE VALERA 22.6.2006 2006/54/11599 2006 IEHC 231
DISEASES OF ANIMALS ACT 1966 (RESTRICTION ON MOVEMENT OF CERTAIN ANIMALS) ORDER 2001 SI 121/2001
DISEASES OF ANIMALS ACT 1966 S49
T (P) v DPP UNREP SUPREME 31.7.2007 2007/58/12433 2007 IESC 39
B (J) v DPP UNREP SUPREME 29.11.2006 2006/5/797 2006 IESC 66
DPP v O'C (P) 2006 3 IR 238 2006/20/4223 2006 IESC 54
CONSTITUTIONAL LAW
Fair trial
Risk to life - Risk to health - Medical evidence - Independent medical examination - Evidence of cardiologist - Inability to give instructions for purposes of cross-examination - Medical history - Ruling that trial should proceed - Constitutional rights - Prejudice to ability to mount proper defence - Claim that constitutional right to life outweighed right of community to prosecute - Whether decision to proceed irrational - Whether court should intervene to restrain trial - Ability to work - Ability to drive - Ability to give evidence in other court cases - Sparrow v Connellan [2006] IEHC 231 (Unrep, de Valera J, 22/6/2006), T(P) v DPP [2007] IESC 39 (Unrep, SC, 3/7/2007), B(J) v DPP [2006] IESC 66 (Unrep, SC, 29/11/2006) and DPP v O'C [2006] IESC 54 (Unrep, SC, 27/7/2006) considered - Diseases of Animals Acts 1966 (No 6), s 49 - Disease of Animals Act 1966 (Restriction on Movement of Certain Animals) Order 2001 (SI 121/2001) - Application refused (2007/1617JR - Sheehan J - 1/4/2009) [2009] IEHC 151
Sparrow v Minister for Agriculture, Fisheries and Food
JUDGMENT of Mr. Justice Sheehan delivered the 1st day of April, 2009
1. In this case the applicant faces two summary charges which are presently pending before Naas District Court. Essentially the applicant seeks to prohibit his summary trial in respect of these offences on the basis of medical evidence to the effect that his health is so precarious that proceeding with the trial will put his life at risk.
2. The applicant is a 66 year old veterinary surgeon who is charged with the following two offences:-
(i) That he did grant or issue an instrument to wit a foot and mouth disease five form so issued on 9 th April, 2001, at Jigginstown, Naas, County Kildare, in contravention of s. 49(1)(h) of the Diseases of Animals Acts 1966 to 2001 (as amended by s. 35 of the National Beef Assurance Act 2000) and
(ii) That the applicant did offer an instrument so issued on 9 th April, 2001, at Jigginstown, Naas, County Kildare in contravention of s. 49(1)(i) of the Disease of Animals Acts 1966 to 2001 (as amended by s. 35 of the National Beef Assurance Act 2000).
3. These charges arose out of an investigation by agents of the first named respondent, four of whom attended at the applicant's veterinary practice on 18 th April, 2001, where they seized documentation and machinery and questioned the applicant. At some point following this encounter with the agents of the first named respondent, the applicant suffered a heart attack and was admitted to the intensive care unit at Tallaght Hospital. The applicant was detained there for ten days. The applicant was subsequently interviewed by agents of the first named respondent at his solicitor's office in Dublin in December, 2001 and on 8 th April, 2003, the two summonses were issued returnable for Dunlavin District Court on 27 th May, 2003.
4. The summonses were adjourned from time to time and on 25 th November, 2003, the issue of the applicant's ill health was raised. Subsequently the 29 th and 30 th March, 2004, were set-aside for the hearing of the case but these trial dates were adjourned and on 29 th March, 2004, the matter was put in for mention on the 28 th April, 2004, for the purpose of an up-dated medical report from Dr. David Moore, the applicant's cardiologist.
5. In due course the applicant's trial was again set down for hearing on 3 rd and 4 th August, 2004, but the matter was further adjourned as a result of judicial review proceedings initiated by the applicant on 26 th July, 2004, which resulted in an order wherein the applicant was granted leave to apply for judicial review and a stay in respect of the said proceedings.
6. These proceedings culminated in a judgment of Mr. Justice de Valera, Sparrow v. Connellan and Anor. [2006] I.E.H.C. 231, delivered on 22 nd June, 2006, in which he found that the applicant was not entitled to an order for prohibition on grounds of delay but was entitled to prohibition against a particular District judge presiding over the trial on grounds of perceived bias. The final sentence at p. 7 of that judgment reads: "[i]n reaching this decision I have considered the arguments concerning the venue for the proposed hearing and the applicant's stated medical condition both of which matters, among others, are matters for the judge eventually assigned to hear this matter".
7. Following this judgment the applicant next appeared at Naas District Court on 20 th July, 2006, and the matter was before the District Court again on 20 th September, 2006, the 8 th November, 2006, the 15 th November, 2006, and the 17 th January, 2007, on which dated Judge Connellan directed the prosecution to seek a judge for the hearing which he fixed for the 29 th and 30 th March, 2007.
8. On the 23 rd March, 2007, an application was made on consent to Judge Connellan sitting at Bray District Court to have the hearing dates of the 29 th and 30 th March vacated and the matter was further adjourned by consent on 29 th March, 2007, to the 5 th June, 2007, and then to the 20 th June, 2007, when the case was listed for preliminary hearing for half a day in Naas District Court on 9 th July, 2007, before Judge Hamill, the second named respondent in these proceedings.
9. According to the affidavit of Jennifer Clarke, solicitor for the applicant, preliminary matters including the evidence of the applicant's general practitioner, were heard by Judge Hamill on 9 th July, 2007, on which date the applicant and the applicant's general practitioner attended at Naas District Court. The applicant's general practitioner attended with cardiac resuscitation equipment. The applicant was subsequently excused from having to attend court and preliminary matters were further heard on 27 th September, 2007. A letter from the applicant's consultant cardiologist furnished to the court stated that it would be seriously prejudicial to the applicant's health were he obliged to attend court in the foreseeable future. The first named respondent was afforded the opportunity to access all medical records and to have the applicant independently medically examined, but he subsequently indicated that he did not wish to do. On 25 th October, 2007, the second named respondent made a legal ruling in relation to a preliminary point raised regarding the Disease of Animals Act 1966 (Restriction on Movement of Certain Animals) Order 2001 ( S.I. No. 121 of 2001 and s. 49 of the Diseases of Animals Act 1966. On 26 th October, 2007, the case was adjourned to 13 th November, 2007, in order for the second named respondent to hear the evidence of the consultant cardiologist to the applicant.
10. On 13 th November, 2007, the applicant's cardiologist, Dr. David Moore, gave evidence. He first stated in answer to a question from the applicant's counsel that it was difficult to quantify the health risks faced by the applicant. He then stated that the applicant had significant heart problems since 1992, when he first had a heart attack. He further stated that in April, 2001 the applicant suffered severe chest pains and as result of which he was admitted to the cardiac unit in Tallaght hospital. He stated that the applicant had significant coronary artery disease and had unusual complications in this regard. He stated that the applicant had spontaneous dissection, meaning that the internal lining of his heart had torn, that this was a very rare condition in adult males and was strongly associated with intense distress. Dr. Moore said that the applicant was treated and again seen by him in February, 2007 when he noted that there had been a progression of the applicant's coronary disease and that the applicant had developed florid diabetes. Dr. Moore further stated that the applicant was then exhibiting all the signs of an acute stress disorder.
11. When asked if he could explain what might happen if the applicant was to attend court for trial, Dr. Moore stated that, given the unexplained collapses of the applicant, his assessment was that the risk of sudden death was very high. Dr. Moore said that while he could not put a percentage on that risk he was in no doubt at all that this case and associated court appearances had been the cause of stress to the applicant and in his view any further court appearances could result in the sudden death of the applicant. Dr. Moore further stated that when the applicant had been admitted to University College Hospital, Galway, earlier in the year following a collapse, the doctor dealing with the applicant felt that the likely cause of the applicant's collapse was arrhythmia and as a result of this diagnosis a coronary recorder device, commonly known as a pacemaker, was implanted. Dr. Moore stated that there had been no successful recording since that time and explained that a recording would be activated after an event.
12. Dr. Moore was asked if he had been aware of any further collapses since July, 2007. He said that he was not.
13. Dr...
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