259 / 436
GAZETTE
JULY/AUGUST1990
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
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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
243