The Gazette 1990

JULY/AUGUST1990

GAZETTE

animals. He added that there was no matter more appropriate for the application of the doctrine of res ipsa loquitur than cattle wander- ing on the highway. The defendant then gave evidence, which was corroborated by his son, that he had passed the accident spot just prior to the accident and that there were no cattle on the roadway and that all his cattle were then in the field. His fences and gates were in sound condition and he could give no explanation as to how his animals escaped from and returned to his field. A neighbour gave evidence that in the last ten years the defendant's cattle had never broken on to his land and that he had never known of the defend- ant's cattle being on the road in that period. Johnson J having found on the balance of probabilities that eight to ten of the defendant's cattle had strayed onto the highway, that it was highly improbable that some stranger opened the gate of the field and remained there until the animals returned at their leisure and then closed it, and that the defendant failed to discharge the onus of proof that his fencing was not defective, allowed the plaintiff's appeal and awarded him the damages claimed in the Civil Bill. A P P E AL C O S T S FOL LOW T H E E V E N T U N L E S S U N U S U A L R E A S O NS The Supreme Court (Finlay CJ, Walsh, Griffin and Hederman JJ: McCarthy J dissenting) held in The Society for the Protection of Unborn Children Ltd -v- Diarmuid Coogan and Others, The Irish Times, Law Report, July 2, 1990 that it was necessary for very substantial reasons of an unusual kind to exist before the Supreme Court should properly depart from the general principle that costs follow the event on the hearing of appeals before it. The Supreme Court, (McCarthy J dissenting) so held allowing the plaintiff the costs of its successful appeal against the order of Carroll J dated 7 September 1988 in which she had refused an application made by the plaintiff for an interlocutory injunction against the defendants restraining them from distributing certain informa- tion with regard to abortion in breach of the Constitution.

R E CK L E S SN E S S: A S S A U LT The issue of recklessness in the context of an offence under section 47 of the Offence Against the Person Act 1861 (which is still law here) has been considered in two recent English cases. The first case was DPP -v- K (a minor), [1990] 1 All ER 331. The facts of DPP -v- K (a minor) may be stated. A schoolboy experimenting in school toilets with some concentrated sulphuric acid taken from a chemistry lesson was disturbed by footsteps outside, panicked and poured the acid into a hot air hand and face drier. He then went back to his class intending to return later and remove the acid. Before he could do so another pupil used the drier and had acid blown on his face causing permanent scarring. The schoolboy was acquitted of assault occasion- ing actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861 because the justices found that he had not intended to injure the other boy. The prosecution appealed by way of case stated. Parker LJ (Queen's Bench, Divisional Court) said that the boy would be guilty of assault if he had acted recklessly. Tudor Evans J agreed and the appeal was allowed. However in R. -v- Spratt, The Times, May 14, 1990, t he Court of Appeal considered that DPP -v- K (a minor) was wrongly decided. The Court of Appeal, Criminal Division, (England and Wales) (McCowan LJ, Tudor Evans and Brooke JJ), held in Spratt that a defendant who failed to give thought to the possibility that his actions might give rise to a risk of causing another person actual bodily harm was not guilty of an offence under section 47 of the Offences Against the Person Act 1861. The Court held that the test of recklessness under section 47 was that laid down in R. -v- Cunningham [1957] 2 QB 396, where the accused had foreseen that the particular kind of harm might be done and yet had gone on to take the risk of it. The Court of Appeal upheld the appeal of Robert Michael Spratt against his conviction on June 6, 1989 at Inner London Crown Court (Judge Pryor, QC) for assault occasioning actual bodily harm. McCowan LJ, g i v i ng the

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judgment of the court, said that the appellant had pleaded guilty to one count of possessing a firearm and ammunition for which he was given six months imprisonment, and for one count of assault occasioning actual bodily harm for which he was given a 30 months con- secutive term. The appellant had pleaded guilty to the second count on the basis that his conduct was reckless in that he failed to give thought to the possibility of a risk that he might cause actual bodily harm. The facts were that the defend- ant had fired an air pistol from his flat and t wo of the pellets had struck a girl aged seven playing outside. At trial his counsel had made clear he was pleading guilty on the basis that he was reckless in that he had failed to give thought to the possibility of a risk. The defendant had not realised there were people there at the time he fired the airgun and was adamant that he would not have fired the shots if he had known there were children in the area. By accepting his plea on that basis, the trial judge had by implication ruled that it did amount in law to the offence charged. On his appeal against sentence, the Court of Appeal had suggested that the hearing be adjourned so that a submission could be made that the ruling was wrong in law. Counsel for the Crown sub- mitted that the judge's decision to accept the plea on the basis

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