Court of Criminal Appeal quashes convictions for animal cruelty where mere presence without proof of encouragement was insufficient evidence.

COURT OF CRIMINAL APPEAL

162 & 186/05

Geoghegan J.

Lavan J.

Murphy J.

THE PEOPLE AT THE SUIT OF THE

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

v.

TROY JORDAN AND DAVID DEEGAN

Applicants

Judgment of the Court delivered by Mr. Justice Geoghegan on 30th day of May 2006

This is an application by the two above-named applicants for leave to appeal against a conviction of cruelty to animals

contrary to section 1(1)(a) of the Protection of Animals Acts, 1911 and 1965, as amended by section 48 of the Control of

Horses Act, 1996.

The relevant indictment originally included a number of other defendants and contained two counts. The two counts in their

original form read as follows:

“Count No. 1: Cruelty to animals, contrary to section 1(1)(a) of the Protection of Animals Acts, 1911 and

1965, as amended by section 48 of the Control of Horses Act, 1996.

Particulars of offence:

Each of you the accused, did on the 31st October 2003, at Brockagh, Robertstown, Naas, Co.

Kildare, did cruelly ill-treat, infuriate or terrify two animals, to wit, two American pit bull terrier

bitches such as to cause unnecessary suffering to the animals.

Count No. 2: Statement of offence

Cruelty to animals contrary to section 1(1)(c) of the Protections of Animals Acts, 1911 and 1965, as

amended by section 48 of the Control of Horses Act, 1996.

Particulars of offence

Each of you the accused, did on the 31st October, 2003, at Brockagh, Robertstown, Naas, Co.

Kildare, did cause, procure or assist at the fighting of two animals, or did use, manage or act or

assist in the management of that place for the purpose of fighting animals, to wit, two American pit

bull terrier bitches.”

Upon an application for a direction to enter a verdict of not guilty made by counsel for the two respective applicants to the

trial judge in the Circuit Court (His Honour Judge McCartan) the learned trial judge, struck out count No. 2 as being void

for duplicity. He both refused to strike out and refused a direction in respect of count No. 1 but he did direct amendment of

the particulars of that count so that the particulars in their amended form would read as follows:

“Each of you the accused, did on the 31st October 2003, at Brockagh, Robertstown, Naas, Co.

Kildare did cruelly ill-treat two animals, to wit, two pit bull terrier bitches such as to cause

unnecessary suffering to the animals.”

Each of the applicants was convicted by a jury of the offence alleged in count No. 1 as amended. The application for leave

to appeal is against that particular conviction. There are a large number of grounds of appeal, many of them criticisms of the

trial judge in relation to the conduct of the trial and in particular an allegation that he had, at some stage in the trial, ruled out

any issue concerning “aiding and abetting” but nevertheless returned to it in his charge to the jury. If any of those kinds of

grounds were valid they could potentially though not necessarily lead to an order by this court directing a new trial.

The principal ground of application, however, is that the trial judge erred in refusing an application to direct the jury to

acquit and, of course, if the applicants are correct in that contention, the appeal must be allowed and the conviction quashed

with no new trial. As the court has taken the view that a direction to acquit ought to have been granted in each case, it does

not intend to address the other grounds of appeal.

The court thinks it proper to state that a difficult trial involving numerous defendants each with separate counsel and each

involving somewhat different facts appears to have been conducted at all stages by the learned trial judge most fairly. Due to

a finding by the trial judge that a search warrant was not valid, the question of admissibility of what would otherwise have

been relevant evidence became extremely complicated and all in all the court considers that the learned trial judge did his

absolute best to conduct a fair trial. If there was any inconsistency between what the trial judge said in his charge and what

he might have indicated to counsel were the relevant matters to be considered, we do not believe that this was intentional

and indeed without more detailed consideration of it we would not be prepared to state that it was in any way well

established. It is possible that there were misunderstandings as between the judge and counsel but the fact remains that the

legal directions to the jury given by the judge were correct, assuming he was entitled to refuse the direction and the matter

had to go to the jury.

The grounds of appeal not only involve criticism of the learned trial judge in relation to some of his rulings but also involve

strong criticism of the way counsel for the prosecution conducted his case. The learned trial judge did not uphold any of the

criticisms in relation to counsel for the prosecution who had decided to proceed in a particular fashion. It is up to counsel for

the defence to know what the essential ingredients of an offence are, what evidence would be required to establish it and

what the relevant law is and he should not consider himself to be confined within the four corners of speeches or other

utterances by counsel for the prosecution.

However, the court does not intend to give any formal ruling on any of the grounds of appeal other than the ground that a

direction ought to have been given.

It is trite law that a person cannot be convicted of an offence by merely being present when it is being committed. There

must be some evidence either of common design or of aiding and abetting in the offence. The court would agree with the

view clearly taken by the learned trial judge that the proven encouragement which would be necessary need not be express.

It could be implied from the circumstances. In one sense this is the typical kind of offence where an implication of such

encouragement might more easily be raised than in most other circumstances. That is the way counsel for the prosecution

ran the case and the learned trial judge considered that there was enough evidence to support such implied encouragement to

allow the case go to the jury. The question the court has to consider is whether the trial judge was right in that ruling. The

relevant passage in the learned trial judge’s ruling reads as follows:

“Moving on to the remaining accused persons and the remaining submission made by counsel in

the case on behalf of each of them, that the mere presence at the place at Brockagh cannot and does

not amount to evidence upon which a jury could act to conclude that they are guilty of the

remaining charge of cruelly ill-treating two dogs found there or as to cause them unnecessary

suffering.

In respect of each of these accused persons their presence there at Brockagh is not an issue. That

concession has been made on the evidence and in the face of the evidence adduced by the

prosecution. Brockagh, as we know from the evidence, is a place of some remoteness. On the

evidence we know that it is two miles at least to the nearest village, be it Alanwood or Robertstown.

It is removed from the public road down a two to three hundred yard laneway and it is in a

cluttered hay or machinery shed to the rear of the farmyard of Mr. Farrell the owner.

The prosecution also point to the peculiar time of day and the day of a weekend of which they say a

significance can be attached. And finally, the event itself has a particular degree of particular

uniqueness. They are two fighting dogs, it would seem one match is in play and available on the

day, and it is an event attended by a small group of men.

The case law clearly establishes that presence at a crime does not necessarily render those persons

present guilty of the crime in progress. There must be something more, such as assistance,

participation or encouragement. These issues are discussed in good length, reflecting on the

judgments and case law that has been furnished to me by counsel on behalf of the accused again in

Archibold and I will refer to the same edition at page 1550 at paragraph 88, under the heading of

‘Encouragement’ and it reads as follows:

‘To establish aiding and abetting on the basis of encouragement it must be proved the

defendant intended to encourage and wilfully did encourage the crime committed. Mere

continued voluntary presence at the scene of crime, even though it was not accidental, does

not of itself necessarily amount to encouragement, but the fact that the person was voluntarily

and purposely present, witnessing the commission of a crime and offered no opposition,

though he might reasonably be expected to prevent it and had power to do so, or at least

express his dissent might in some circumstances afford cogent evidence, from which a jury

would be justified in finding that he wilfully encouraged and so aided and abetted and it

would be purely a question of fact for the jury whether he did so or not’.”

The learned trial judge then goes on to refer to some English authorities and particularly Reg v. Coney (1882) 8 QBD 534,

and he goes on to conclude as follows:

“I am satisfied therefore that the presence there, though absent in the evidence, of any indication of

what location they were found at, what acts they engaged in, none the less can in my view be left to

a jury as issues of fact to be determined by them, in circumstances where they are to be warned in a

charge by a judge that any doubt in their mind as to the reason or purpose of the accused being

present or to be exercised in favour of the defendants.”

This court is of the view that the evidence was not such as left two options open to a jury in circumstances where of course

it would then have been proper to have left the matter to the jury. For the jury to have held, as presumably it must have

done, that the evidence relating to each of these applicants amounted to proof of the necessary implied encouragement, the

jury could only have been engaging in speculation. All that was proved was presence. There was no evidence of gambling or

fleeing from arrest. The court is of the view that the jury could not beyond reasonable doubt have come to a conclusion that

there was encouragement on the part of the applicant. Therefore, in the court’s view, the application for a direction to enter

verdicts of not guilty in respect of Count No. 1 ought to have been acceded to. The court will, therefore, treat the respective

applications for leave to appeal as the respective appeals, will allow each appeal and will quash the respective convictions.

DPP v. Jordan & anor.