High Court allows acquittal where non-vet semen analysis lacks evidence of diagnosing animal state of health.

THE HIGH COURT

[2025] IEHC 387

[Record No. 2024/1542 SS]

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857

AS EXTENDED BY SECTION 51(1) OF THE COURTS (SUPPLEMENTAL

PROVISONS) ACT 1961

BETWEEN

VETERINARY COUNCIL OF IRELAND

PROSECUTOR/APPELLANT

AND

CATHERINE BEAVON

ACCUSED/RESPONDENT

Judgment delivered by Mr. Justice Micheál O’Higgins on the 1st day of July 2025

Introduction

1. Does the testing and analysing of bull semen by a non-vet amount to diagnosing its state of health, such that the tester should be liable to criminal prosecution? That is essentially the question that came before District Judge Philip O’Leary sitting in Bantry in Cork on 27th June 2024.

2. The respondent was charged by summons with two offences alleging that on the 30th March 2022 she diagnosed the state of health of an animal, namely that the animal was fertile, being an act the doing or performance of which forms part of the practice of veterinary medicine, and at the time of so doing was not a person registered under Part 4 of the Veterinary Practice Act 2005 (as amended) (the “2005 Act”). She was also charged with furnishing a written certificate as to the said diagnosis on the same date. Both alleged offences are said to be contrary to s. 54(1)(a) and 54(4) of the 2005 Act.

3. The case was prosecuted by the Veterinary Council of Ireland (the appellant) which is the independent statutory body charged with regulating the practice of veterinary medicine in Ireland. The appellant called evidence from civilian witnesses and from a veterinary expert. A certificate headed “Semen Analysis”, which the respondent provided to the bull’s owner, was produced in evidence and formed a key plank of the prosecution case. At the conclusion of the case, having heard the prosecution witnesses and legal submissions made by the parties, Judge O’Leary acceded to a defence application to dismiss the charges. This is the appellant’s appeal by way of Case Stated of that decision.

Background facts

4. Before setting out the terms of the Case Stated itself, I will say something about the background facts leading to the prosecution. At some point in 2022, the appellant came into possession of a document with the heading “Bull Test Ltd, Rockmount, Drimoleague, Co. Cork” (hereinafter “the Certificate”). The Certificate contained an animal identification number, stated that the owner was a “T. Finucane” and described the animal in question as a bull. The Certificate referred to a semen analysis carried out on the bull, and that the animal fell “within the acceptable parameters”. The Certificate was signed by a “C. Beavon” and was dated the 30th March 2022.

5. Having considered the Certificate, the appellant believed that there was reasonable cause to suspect that offences had been committed under the 2005 Act. Consequently, the appellant directed two Authorised Officers to carry out an investigation into the matter.

6. Following enquiries by the Authorised Officers, it was discovered that the Certificate had been commissioned by Thomas Finucane of County Kerry. It was discovered that the bull was then sold to a couple at Kilmallock Livestock Mart in County Limerick on the 23rd April 2022. It was also confirmed that the Certificate had been transferred to the couple on their taking possession of the bull. The Authorised Officers interviewed both Mr. Finucane and the new owner of the bull in October 2022 and took statements from them.

7. The appellant was satisfied that the accused (now respondent) was guilty of two offences contrary to s. 54 of the 2005 Act. Consequently, the appellant caused a summons to issue in the District Court area of Bantry against the respondent on the 18th December 2023.

8. As I have said, the prosecution took place before Judge Philip O’Leary at Bantry District Court on the 27th June 2024. At the close of the prosecution case, an application was made on behalf of the respondent to dismiss the charges on two grounds:

(a) That the respondent was the incorrect defendant, the correct defendant being the company, Bull Test Ltd.; and

(b) That there was no evidence that the respondent had engaged in the practice of fertility testing, rather that she had only engaged in the collection and analysis of semen.

9. The respondent’s application was contested by the appellant who sought, inter alia, to rely upon the provisions of s. 136 of the 2005 Act in respect of the first limb of the application.

10. Having heard the legal submissions on behalf of the parties, the trial judge made the following findings:

(a) The respondent was the incorrect defendant as she had a separate legal personality to the company, Bull Test Ltd.

(b) The appellant was not entitled to rely upon the provisions of s. 136 of the 2005 Act in circumstances where the trial judge was not satisfied beyond a reasonable doubt that there was evidence of “wilful neglect” on the part of the respondent.

(c) The respondent only carried out a semen analysis on the 30th March 2022, and there were other steps which were required for testing the fertility of the bull. Thus, the trial judge had sufficient doubt that the actions of the respondent amounted to fertility testing or that the Certificate amounted to the diagnosis of the “state of health” of an animal within the meaning of s. 53 of the 2005 Act.

11. In light of such findings, the learned trial judge dismissed the charges against the respondent.

Appeal by way of Case Stated

12. An appeal by Case Stated pursuant to s. 2 of the Summary Jurisdiction Act 1857 (as extended by s. 51(1) of the Courts (Supplemental Provisions) Act 1961) is a self-contained procedure. The Case Stated document sets out extensively the facts as found by the learned district judge. I will quote from the relevant portions and leave out unnecessary references to the names of private individuals: “3. (1) On some unspecified date in 2022, the Appellant came into possession of a document with the heading “Bull Test Ltd., Rockmount, Drimoleague, Co. Cork”... The document contained an Animal ID of … stated that the owner was a “T. Finucane” and described the animal as a bull. The document contained a section entitled “Semen Analysis” which described the appearance of the semen as milky. It recorded the gross motility of the semen as 4; the progressive motility as 85%; and the percentage normal sperm as 90%. The document had a further section entitled “Acceptable Parameters” which stated that gross motility was scored from 1 - 5 with a minimum requirement of greater than 3; progressive motility scored from 0 - 100% with a minimum requirement of greater than 60%; and a percentage normal sperm of

0 - 100% with a minimum requirement of greater than 70%. The document proceeded to certify that the animal fell within the acceptable parameters. The document was signed by a “C Beavon” and was dated the 30th day of March 2022.

(2) …

(3) Following enquiries by the Authorised Officers, it was discovered that the document had been commissioned by one Thomas Finucane [of an address in county Kerry] in respect of the bull whose ID number appeared on the document. It was further discovered that the bull was sold to [a couple in] Kilmallock, Co. Limerick at… Kilmallock Livestock Mart, Co. Limerick on the 23rd day of April 2022. It was also confirmed that the document in question had been transferred to [the couple] on their taking possession of the bull.

(4) On the 24th day of October 2022 the Authorised Officers met with Thomas Finucane at his home. The Authorised Officers showed Mr. Finucane a photograph of the document and asked him a number of pre-prepared questions which were as follows: “Q. Were there any pronouncements made by the service providers in relation to the animals tested, whether in relation to fertility or otherwise?

A. No, she didn’t say anything about fertility. I did it because I didn’t want anyone to come back to me. It was for me own protection.

Q. What did you infer from the tests?

A. She told me they were a hundred percent so I believed her.

Q. Was there any mention of the animal’s fertility?

A. No, other than the result of the test.

Q. What was the nature of the services you thought you were paying for?

A. I paid her to find out if the bulls were wrong or right and I thought it was value for money.

Q. What was your understanding of the outcome?

A. I understood that they were fertile and that’s all I wanted.

Q. Were there any invoices/receipts issued?

A. She did yes, they are with my accountant.

Q. Is there any further documentation available in relation to the tests?

A. Just the certs that’s all, I would get four or five tested at a time a couple of times a year. That has been the case for many years with the same people.” Each page of the memorandum of interview was signed by Mr. Finucane whose signature was witnessed by Michael Heffernan. Each page was dated the 24th day of October 2024.

(5) The Authorised Officers also interviewed [the new owner of the bull] on the 24th day of October 2022. She was shown the image of the document and confirmed that she recognised it. She made the following statement in respect of the document: “I bought a bull tag number … on the 23rd April 2022 at the Munster Branch Irish Angus sale at Kilmallock. With the bull I got a document with the heading: Bull Test. This document has the tag number of the bull written on the face of it. I understand that this document certifies that the bull was fertile on the date that I bought him. I also understand that this document satisfies the requirement of the Irish Angus Society that the bull’s fertility is verified. This is written on the cover of the brochure which I received and which is issued by the Irish Angus Society. Michael Heffernan, an authorised officer of the Veterinary Council, has shown me a copy of a document. I recognise this copy as a copy of the document I received when I purchased the bull. I cannot locate this document at the moment. I have placed my initials on this document. When I say that I purchased the bull I mean that it was purchased by and on behalf of my family and is in the herd partnership of the family. We insured the bull with FBD and they required and accepted the document as proof of the bull’s fertility. This statement has been read over to me by Michael Heffernan and it is correct.” The statement was signed by [the owner] whose signature was witnessed by Michael Heffernan. The statement was dated the 24th day of October 2022.

(6) At the hearing before me at Bantry District Court on the 27th day of June 2024, Michael Heffernan was called to give evidence on behalf of the Appellant. A copy of Mr. Heffernan’s investigation reported [sic] was handed in to me. The validity of his warrant of appointment and that of Patrick Talty was conceded by the Defence. The Defence also conceded that the Respondent traded under the name of Bull Test Limited, that it was her company and that she was not a registered veterinary practitioner. In his evidence, Mr. Heffernan confirmed the details of the investigation as set out in paragraphs (1)–(5) above. He further confirmed that the subject of the investigation was the person who issued the certificate, and that he did not interview “Bull Test Limited”.

(7) Mr. Thomas Finucane was called to give evidence on behalf of the Appellant. During examination-in-chief, Mr. Finucane stated that he was not 100% sure he had given the answers that were recorded in the memorandum of interview. However, he confirmed that it was his signature at the bottom of each page. He stated that he would have done anything to get rid of the Authorised Officers. He stated that the bull in question was sold for him at the Munster Branch Angus Mart. He stated that he could not be sure whether the Respondent attended at his farm on the 30th day of March 2022.

(8) On cross-examination, Mr. Finucane … confirmed when questioned that there was no mention of fertility testing in the certificate that he received from the Respondent. He showed the Court a bundle of certificates and stated that they were “two years’ worth” of certificates from the Respondent. He stated that none of them mentioned anything about fertility testing. He was asked whether the respondent said anything about fertility to him and he replied “not mentioned”.

(9) On re-examination, it was put to Mr. Finucane that, when interviewed, his understanding of the outcome of the test was that the full [sic] was fertile. He replied that “[f]ertile to me was that the cows were going to calf off them. It meant no more, it meant nothing to me.”

(10) [The new owner of the bull] was called to give evidence on behalf of the Appellant. She confirmed that her family bought the bull in question at Kilmallock Livestock Mart on 23rd day of April 2022. She stated that the bull came with a pedigree certificate, the certificate with the heading “BullTest” and the invoice. She further confirmed that she had found the original “BullTest” Certificate furnished with the bull and it was presented to the trial judge to consider. When asked what her understanding was with regard to the “BullTest” certificate, she stated that “all you want, and Mr Finucane said, is your bull will work”… When asked what she meant by “work” she replied: “[p]utting heifers in calf”. She identified the brochure for the Munster Branch Irish Angus sale which took place at Kilmallock Livestock Mart on the 23rd day of April 2022 at which they bought the bull in question. She confirmed that it contained the following assurance: “BULLS FERTILITY AND GENOMICS/SIRE VERFIED [sic].” She confirmed that she would not buy a bull that was not fertile.

(11) On cross-examination, [the new owner] was asked if she had read the certificate to which she replied that she “probably did at the time”. It was put to [her] that the certificate read “semen analysis” to which she replied that “as a farmer, I just want a bull to work”. She stated the certificate came in an envelope with all the purchase documents. When asked again whether she checked the certificate before she bought the bull she replied “no”. When asked whether she had checked it since that date of purchase she responded “I didn’t need to, the bull is working”.

(12) On re-examination, [the new owner] confirmed that her family always get a registered veterinary practitioner to carry out the fertility testing on their farm. She confirmed that the bull in question was working. When asked by me what they paid for the bill [sic], she confirmed that the purchase price was €3,000.

(13) Mr. Peadar Ó Scanaill was called to give evidence on behalf of the Appellant. I was referred to a statement by Mr. Ó Scanaill which was contained in the Appellant’s investigation report and I considered same during the course of his evidence. He confirmed that he was a veterinary practitioner with over thirty years in general practice and a principal of a multi-person mixed veterinary practice based in Ashbourne, Co. Meath. The practice provided full veterinary services including farmanimal veterinary services to the farming community in the North East. He was past president of Veterinary Ireland and member of the Veterinary Council of Ireland. He had been doing bull fertility tests for some thirty years. The service would be generally carried out around the time of the sale of a bull when a farmer wished to ensure that a new bull was fit for the purpose of being introduced as a breeding animal into a herd.

(14) He stated that bull fertility diagnosis and certification could be considered in four stages. These stages corresponded to the four main sections as set out in the standard Veterinary Bull Fertility Examination Certificate in common use by veterinary practitioners. A copy of such a certificate was furnished to me. He stated that a vet would see if the bull could walk and whether it was clinically fine, ensure that there are no issues genetically, measure the circumference of the testicles and examine the reproductive organs externally and internally. Then there was the taking of the semen sample and its analysis. He stated that the semen analysis would not tell you for definite whether the animal was fertile. He stated that the process of obtaining the sample for semen analysis was not the easiest procedures [sic] and could be relatively painful for the bull. At times, it would be necessary for a vet to sedate a bull as part of the procedure.

(15) Mr. Ó Scanaill stated the following with regard to the procedure adopted by veterinary practitioners when testing the fertility of a bull: “…we like to see, if we can, that the bull is able to walk, has heart, lungs, eyes. So clinically, he is an effective bull, he’s not too thin or he’s not too fat. And, as I say, there is nothing genetic on him that we’re not seeing anything that he is likely to pass on in his genes, so the full clinical examination will find those for us… We also measure the size of the – of the – circumference of the testicles…” He continued that “there is a clinical examination, it’s an examination of the external sex organs, it’s an examination of the internal organs as well.”

(16) Mr. Ó Scanaill stated that the “BullTest” certificate was a copy and paste of part of the certificates used by vets. He described the various parts of the certificate. When asked what he believed the section entitled “Acceptable Parameters” meant, he stated that it was interpreting the bull as being fertile. He stated that he was of the opinion that it constituted the diagnosis of the “state of health” of the bull within the meaning of Section 53(1)(a)(i) of the 2005 Act. Moreover, the certification of the fertility of the bull came within the meaning of the provisions of Section 53(1)(a)(v) of the 2005 Act.

(17) On cross-examination, it was put to Mr. Ó Scanaill that he had given evidence that fertility testing included semen analysis, but also a whole lot of other things. He confirmed that was correct but stated that semen analysis was the key. He accepted that a lay person could take a semen sample and analyse it, that it was often done by lab technicians and veterinary nurses. It was put to Mr. Ó Scanaill that there was an exchange of emails between certain individuals and the head of legal in the Appellant which stated that a layperson could inform a farmer what the semen count was but they could not offer a diagnosis on the fertility of the bull. Mr. Ó Scanaill was asked whether he agreed with that position. Mr. Ó Scanaill agreed that laypersons could not offer a diagnosis of the fertility of the bull and stated that “[t]hey can inform anybody what the semen count is, but the report and the writing it out, that report should go to a veterinary practitioner who would then use it”. However, he stated that there was a vital step being missed by Mr. Murphy and that was the interpretation of the analysis by the Respondent.

(18) On re-examination, Mr. Ó Scanaill confirmed that the certificate issued by the Respondent went further than semen analysis, that the “acceptable parameters” section was an interpretation of the results. He further stated that interpretation of the semen analysis was a diagnosis of the “state of health” of the bull.

(19) At the close of the applicant’s case, Mr. Murphy, made an application to dismiss the charges on two grounds:

(a) That the Respondent was the incorrect Defendant, the correct Defendant being the company, Bull Test Limited, as that was the heading on the certificate; and

(b) That there was no evidence the Respondent had engaged in the practice of fertility testing, rather she had only engaged in the collection and analysis of semen. Mr. Murphy submitted that Mr. Ó Scanaill had accepted in evidence that a layperson could take semen and could give results to a farmer, and that this was backed up by correspondence with the Appellant’s legal department.

(20) Mr. O’Donoghue B.L. submitted in response that the Respondent was the correct Defendant as she was the person who took the sample, analysed it and confirmed the fertility of the bull by way of the certificate. The Respondent had also signed the certificate.

(21) Mr. O’Donoghue B.L. further submitted that the Appellant was entitled to rely upon the provisions of Section 136 of the 2005 Act to prosecute the Respondent as opposed to the company. Section 136 provides as follows: “Where an offence under this Act is committed by a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to have been attributable to any wilful neglect on the part of, any person being a director, manager, secretary or any other officer of the body corporate or a person who was purporting to act in any such capacity that person, as well as the body corporate, is guilty of an offence and is liable to be proceeded against and punished as if he or she were guilty of the firstmentioned offence.”

Mr. O’Donoghue B.L. submitted that the Defence had conceded that the Respondent was at all material times the director of Bull Test Limited and that, on the evidence before the Court, the offences contrary to Section 54 of the 2005 Act had unquestionably been committed with the “consent”, “connivance” and “approval of” the Respondent as she was the person who had collected the semen sample, analysed it and certified the bull as fertile.

(22) With respect to the second ground upon which the application to dismiss was based, Mr. O’Donoghue B.L. submitted that there was clear evidence from Mr. Ó Scanaill that the certificate furnished by the Respondent went beyond the mere analysis of the semen but, rather, by certifying that the semen came within the acceptable parameters set out in the certificate, the Respondent was certifying the fertility of the bull and, thus, was diagnosing the “state of health” of the bull within the meaning of Section 53 of the 2005 Act.

(23) In addition to the foregoing, Mr. O’Donoghue B.L. submitted that the Court also had the evidence of the memorandum of interview with Mr. Finucane wherein, in response to the question “[w]hat was your understanding of the outcome?”, he stated that he “understood that they were fertile and that’s all I wanted”. Moreover, it was entirely clear from the evidence of [the new owner] that she relied upon the “BullTest” certificate as confirmation that the bull was fertile when her family purchased it and this was stated expressly in the statement which she gave to the Authorised Officers.

(24) Having risen to consider the legal submissions made to me on behalf of both the Respondent and the Appellant, I made the following findings:

(a) I was of the view that the Respondent was the incorrect Defendant as she had a separate legal personality to the company, Bull Test Limited, and it was the company who issued the certificate.

(b) I was of the view that the Appellant was not entitled to rely upon the provisions of Section 136 of the 2005 Act as I had reasonable doubt that there was evidence of “wilful neglect” on the part of the Respondent.

(c) I was of the view that the Respondent only carried out semen analysis on the 30th day of March 2022 and that there were other steps which were required for testing the fertility of the bull. Thus, I had sufficient doubt that the actions of the Respondent amounted to fertility testing or that the certificate amounted to the diagnosis of the “state of health” of an animal within the meaning of Section 53 of the 2005 Act.

(25) The opinion of the High Court is sought on the question of whether I was correct in my findings set forth in paragraph 24(a), (b) and (c) above.”

Preliminary objection by the respondent

13. The respondent submits that the appellant has not identified a point of law requiring resolution by this court but, rather, seeks to displace the judgment of the learned trial judge on its factual merits. The respondent argues that, since the appellant is dissatisfied with the trial judge’s assessment of the merits of the prosecution case, it is not appropriate or permissible for the appellant to utilise the Case Stated procedure. The respondent submits that the appellant’s misuse of the procedure is made worse by the fact that the respondent is a citizen who has been acquitted following a criminal trial.

14. The respondent relies upon the decision of the Supreme Court in Fitzgerald v. DPP [2003] 3 I.R. 247. In that case, Hardiman J. held that sections 2 - 6 of the Summary Jurisdiction Act 1857, as amended, created a special statutory jurisdiction in the Superior Courts which was of a limited nature: “The status of near inviolability classically afforded to an acquittal emphasises the need to construe the permitted scope of an attack on such acquittal strictly.”

15. I am not minded to uphold the respondent’s preliminary objection. I accept that the procedure under the 1857 Act is available exclusively for the determination of issues of law. Furthermore, the respondent is correct that the High Court should not entertain a Case Stated involving the determination of issues of fact. Collins and O’Reilly, Civil Proceedings and the State, 3rd Ed., (Roundhall, 2019) at para. 1.07 makes this point very clearly. The authors cite Fitzgerald as one of several cases that make clear that the procedure is available only for the determination of issues of law. However, the authors go on to state that the question as to whether there is any evidence to support a finding of fact, or to warrant a conviction, raises a point of law that the High Court may review on appeal by way of Case Stated. A number of cases are cited for that proposition.

16. DPP v. Gray (Unreported, High Court, O’Hanlon J., 8th May 1987) concerned an appeal by way of Case Stated from a dismissal by the district judge of a charge of drunken driving. The charge was dismissed on the basis that the prosecuting garda, in effecting the arrest of the defendant, did not have reasonable grounds for forming the opinion that the defendant had consumed an intoxicant to such an extent as to be incapable of having proper control over the motor vehicle. The prosecutor stated a case for the opinion of the High Court as to whether the district judge was right in dismissing the complaint. O’Hanlon J. found that upon reading the Case Stated, it disclosed an error of law in the manner in which the learned district judge evaluated the evidence. He held that the fact that a defendant may have a convincing explanation for all the matters observed by an arresting garda did not deprive the arrest of its validity if it was objectively reasonable for the garda to form the opinion that the person concerned is committing or had committed an offence. The court found that the trial judge erred in law in concluding that the possibility of innocent explanation for the matter which gave rise to the garda’s opinion was sufficient to invalidate that opinion. The court also found that the findings of fact made by the judge upon which she based her decision were wholly unsupported by evidence. On that separate ground, O’Hanlon J. found that the trial judge’s decision was erroneous on a point of law.

17. In State (Turley) v. O’Floinn [1968] I.R. 245, the Supreme Court held that the determination of whether there is or is not sufficient evidence to warrant a conviction is a determination of a question of law. It seems to me that O’Floinn is in point in the present case because the Case Stated before this court seeks the opinion of the High Court on the question as to whether the learned trial judge was correct in finding that there was a sufficient doubt that the actions of the respondent amounted to fertility testing or that the Certificate amounted to the diagnosis of the state of health of an animal within the meaning of s. 53 of the 2005 Act.

18. In these circumstances, I find that the appellant is entitled to pursue this appeal by way of the Case Stated procedure, and I therefore reject the respondent’s preliminary objection.

The three questions posed in the case stated

19. Paragraph 24 (a) - (c) of the Case Stated identifies the three questions on which the opinion of the High Court is sought. These are:

(a) Was the learned trial judge correct to conclude that the respondent was the incorrect defendant as she had a separate legal personality to the company, Bull Test Ltd., and it was the company who issued the Certificate?

(b) Was the learned trial judge correct to find that the appellant was not entitled to rely upon the provisions of s. 136 of the 2005 Act as he had a reasonable doubt that there was evidence of “wilful neglect” on the part of the respondent?

(c) Was the learned trial judge correct to conclude that there was sufficient doubt that the actions of the respondent amounted to fertility testing, or that the Certificate amounted to the diagnosis of the “state of health” of an animal within the meaning of s. 53 of the Veterinary Practice Act 2005? In that regard, was the learned trial judge correct to conclude that the respondent only carried out semen analysis on the day in question, and that there were other steps which were required for testing the fertility of the bull?

20. I propose to consider the third question first because it concerns the core finding made by the trial judge as to the sufficiency of the prosecution evidence. It seems to me that the answer to question (c) is largely dispositive of the case. However, before I do that, I should say something about the nature of a Case Stated.

No objection to the court viewing the trial transcript

21. Accompanying the Case Stated is a full copy of the trial transcript. It should be noted, however, that ordinarily a High Court judge considering a Case Stated will be limited to the facts found by the tribunal stating the case (Irish Agricultural Machinery Ltd. v. Ó Culacháin [1990] 1 I.R. 535).

22. However, in the present case, the parties have proceeded on the basis that the court should view a bundle of additional documents. Both parties have referenced excerpts from the trial transcript in their written submissions. The court was also provided with a folder containing the District Court summonses, the report of the Authorised Officers, their warrants of appointment, a signed statement of the appellant’s veterinary expert, a copy of the Bull Test Ltd. Certificate and other documents.

23. Since it was the agreed position of the parties that the court should view all of these documents, I do not propose to get into a debate as to whether, strictly speaking, this is or is not permissible. Suffice to say, both parties directed me to portions of the transcript that were said to support their respective submissions. In these circumstances, I have considered the folder containing the additional documents, including the trial transcript. However, I should expressly indicate that I am not ruling on the question of whether it is permissible for a court considering a Case Stated to go outside the contents of the Case Stated itself. I will hold that issue over for determination in a suitable case. For present purposes, while I have considered the transcript, the essential findings of fact upon which I will be basing my conclusions will be taken from recitals within the Case Stated itself.

The structure of the prosecution case

24. In order to consider the issues properly, it is necessary to view the prosecution case in its proper context. I will start by examining the theory of the prosecution case.

25. At the hearing in the District Court, the appellant was represented by Stephen O’Donoghue BL and the respondent was represented by Flor Murphy, Solicitor. Counsel for the appellant summarised the prosecution case for the benefit of the judge and focused on the Bull Test Ltd. Certificate. He stated that the respondent went out to the farm of the then owner, Mr. Finucane, and carried out the semen test and semen analysis, and that Mr. Finucane had given evidence that his understanding of the outcome of the test was that the bull was fertile. As noted at para. 9 of the Case Stated, Mr. Finucane stated “[f]ertile to me was that the cows were going to calf off them. It meant no more, it meant nothing to me”.

26. In addition, the Certificate was furnished to the new owner of the bull upon purchase. When asked about her level of understanding as to the Bull Test Certificate, the new owner stated that “all you want… is your bull will work”. When asked what she meant by “work” she replied, “[p]utting heifers in calf” (para. 10 of the Case Stated).

27. In addition, a key plank of the prosecution case was the evidence of the veterinary expert, Mr. Ó Scanaill. His evidence is summarised at paras. 13 – 18 of the Case Stated which I need not repeat.

Frailties in the prosecution case

28. It is clear from the Case Stated and indeed the lively exchanges captured on transcript that, from the outset, the respondent’s solicitor sought to explore frailties and fault-lines in the prosecution case, including the central point that, according to the appellant’s own ordnance, the carrying out of semen analyses by non-vets was not criminal, and indeed was frequently carried out by persons other than veterinary practitioners.

29. Secondly, the respondent’s solicitor focused on the limited nature of the Bull Test Ltd. Certificate and the absence from the Certificate of any mention of “fertile”, “fertility” or similar words.

30. Thirdly, the respondent’s solicitor focused upon a number of important concessions made by the prosecution, including certain acknowledgments made in evidence by the appellant’s veterinary expert.

31. Fourthly, the respondent’s solicitor focused upon the absence of a distinct boundary between “semen analysis”, which the appellant accepts is permitted, and the diagnosis of an animal’s fertility, which the appellant contends is captured by the Act and therefore criminal.

32. It is apparent from the transcript and the recitals in the Case Stated that from early on the learned trial judge had concerns about the sufficiency of the prosecution evidence. He clearly felt that the prosecution case was thin to the point of threadbare, particularly when regard was had to the concessions made and the agreed position that the carrying out of a semen analysis, and the reporting of the results of same, even by a non-veterinary practitioner, were not captured by the Act.

Relevant sections of the Veterinary Practice Act 2005 (as amended)

33. Before considering further the trial judge’s findings under question (c), I should firstly outline the relevant provisions of the 2005 Act. Part 5 of the Act deals with the practice of veterinary medicine. Section 53 provides a definition of the practice of veterinary medicine and s. 54 sets out the offences under which the present respondent was charged. Section 53 provides as follows: “(1) In this Act, the practice of veterinary medicine means any one of the following –

(a) in relation to an animal –

(i) diagnosing disease, injury, pain, deformity, defect or state of health,

(ii) identifying and carrying out treatment, whether surgical or medical in nature, of any matter referred to in subparagraph (i),

(iii) performing a surgical procedure,

(iv) giving advice, following an action referred to in subparagraph (i),

(ii) or (iii) as to care required,

(v) furnishing a written certificate as to the doing of any action referred to in subparagraph (i), (ii), (iii) or (iv),

(b) …

(c) …

(2) In subsection (1)(a)(i), “diagnosing” includes the following:

(a) diagnosing the cause of death of an animal; and

(b) examining the reproductive organs of a mare via the rectum.”

34. Section 54 provides as follows: “(1) Subject to sections 54A, 55 and 59 a person, other than a veterinary practitioner, shall not –

(a) do or perform any act, matter or thing the doing or performance of which forms part of the practice of veterinary medicine,

(b) use the title or description that would give the impression that he or she is registered under Part 4 , such as “veterinary surgeon”, “veterinary specialist”, “veterinary practitioner” or “veterinarian” or any abbreviation or derivative of them, either alone or in connection with any other title or description, or

(c) represent that he or she is registered on the Register.

(2) A body corporate shall not –

(a) do or perform any act, matter or thing the doing or performance of which forms part of the practice of veterinary medicine,

(b) represent itself as registered on the Register, or

(c) represent itself as prepared to do or perform any act matter or thing the doing or performance of which constitutes part of the practice of veterinary medicine.

(3) Subject to sections 54(A) and 55 where a person who is not a registered person treats, by the practice of veterinary medicine, whether for reward or otherwise, an animal the property of another person, he or she shall be taken to have represented that he or she is a registered person.

(4) A person who contravenes subsection (1) or (2) is guilty of an offence.”

35. Section 136 of the 2005 Act deals with offences by a body corporate. It provides as follows: “Where an offence under this Act is committed by a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to have been attributable to any wilful neglect on the part of, any person being a director, manager, secretary or any other officer of the body corporate or a person who was purporting to act in any such capacity, that person, as well as the body corporate, is guilty of an offence and is liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.”

36. In summary, the structure of the prosecution case was that the actions of the respondent, as a person who was not a registered veterinary practitioner, in providing the Bull Test Certificate to the owner of the bull, amounted to diagnosing the animal’s state of health and therefore constituted the “practice of veterinary medicine” within the meaning of s. 53. Consequently, the act was captured by s. 54 which prohibits a person, other than a veterinary practitioner, from doing or performing any act, the doing or performance of which forms part of the practice of veterinary medicine.

37. As noted at para. 1 of the Case Stated, the criminal charge against the respondent alleged that she diagnosed the state of health of the animal, namely that it was fertile.

38. Sensibly, it was conceded by the defence at trial that the respondent traded under the name of Bull Test Ltd., that it was her company, and furthermore that she was not a registered veterinary practitioner (para. 6 of the Case Stated).

The Bull Test Ltd. Certificate

39. A key focus at trial was the Bull Test Ltd. Certificate itself. From even a cursory glance of the document the following is evident:

• The Bull Test Certificate makes no reference to “fertile”, “fertility” or cognate words.

• Nor does it mention the animal’s fitness or its suitability for breeding.

• There is no reference to the word “diagnosis” or the word “health” anywhere on the document.

• The Certificate is silent on whether the animal was examined, whether internally or externally.

• Other than the semen analysis, there is no mention of examination findings.

• There is no reference to the animal’s legs or ability to walk.

• Nor is there commentary of any sort on the animal’s appearance, weight, disease free status or physical condition.

• There is no reference to the bull having been sedated or given medication.

40. It seems to me that any assessment of the correctness of the trial judge’s finding that the prosecution had failed to prove its case must take into account the frailties and fault-lines within the prosecution case, and the reasonable acknowledgments made by the expert witness in the course of his evidence. On a fair reading of the findings, the prosecution accepted that the taking of a sample of the bull’s semen, the analysis of the semen sample and the conveying of the results of such analysis to other persons did not constitute the practice of veterinary medicine and was not captured by ss. 53/54 of the 2005 Act.

41. As noted at para. 14 of the Case Stated, the veterinary expert for the prosecution, Mr. Ó Scanaill, gave detailed evidence as to what was involved in a bull fertility test carried out by a veterinary practitioner. He gave evidence that a fertility test includes a number of additional elements, over and above the matters alleged against the respondent by virtue of the Bull Test Ltd. Certificate. The procedure adopted by veterinary practitioners when testing the fertility of a bull is further detailed at para. 15 of the Case Stated.

42. As noted at para. 14 of the Case Stated, the veterinary expert stated that the semen analysis would not tell you for definite whether the animal was fertile. In my view, this acknowledgment is quite significant in its own terms.

43. Paragraph 17 of the Case Stated records the expert acknowledging that a lay person could take a semen sample and analyse it, and that this was often done by lab technicians and veterinary nurses. The witness acknowledged an exchange of emails with the Veterinary Council stating that a lay person could inform a farmer what the semen count was, but they could not offer a diagnosis of the fertility of the bull.

44. It was put to the expert that the respondent had done no more than a lay person is allowed to do, namely carry out the semen analysis and inform a farmer as to the results of the test. Initially, the veterinary expert said that the respondent had gone a step further by not only conveying the results to the farmer, but by documenting the results in a written document and signing it for others to see. The expert was pressed on the point, and it was again put to the witness that it was accepted by the appellant that lay people could not only carry out a semen analysis but could report the results of such analysis to other persons. The witness, however, said that the defence was missing an important point, namely the interpretation of the semen analysis which was said to be contained within the Certificate.

45. At this point, the learned trial judge invited the expert witness to review again the contents of the Certificate, and it was discussed that the Certificate appeared to be limited to semen analysis, and did not refer to fertility. On pg. 29 of the transcript (lines 10 – 19) there is an exchange between the learned trial judge and the expert witness as follows: “JUDGE: Well, again we’ll go back to what this says. This tells us what the semen count is. That’s what it says. It doesn’t refer to fertility and the farmer may interpret it in a different way and I think you’re averring to that. But all that says is that’s the – if that’s the semen count or a semen analysis –

A. It’s diagnosing unhealthy ten percent and ninety percent that are healthy. So it’s making a diagnosis there – JUDGE: It’s still a semen analysis, isn’t it?

A. It’s a fairly (inaudible) semen analysis, yes. JUDGE: It is a semen analysis?

A. It is a semen analysis. JUDGE: Thank you.”

46. Counsel for the prosecution skilfully sought to rescue the position by bringing the focus back to the question of diagnosis, and the statutory definition as to what the practice of veterinary medicine consists of. On re-examination, Mr. Ó Scanaill stated that the Certificate issued by the respondent went further than a semen analysis, and that the “acceptable parameters” section amounted to an interpretation of the results. He further stated that the interpretation of the semen analysis was a diagnosis of the “state of health” of the bull (see para. 18 of the Case Stated).

Submissions on behalf of the appellant

47. The appellant submits that the learned trial judge misinterpreted the expert’s evidence and mistakenly conflated the additional elements of a proper assessment carried out by a veterinary practitioner with preconditions for fulfilling the statutory definition as to the practice of veterinary medicine. Moreover, at a level of principle, it simply cannot be a defence for the respondent to demonstrate that she did not carry out the procedure properly.

48. The appellant submits that the trial judge misdirected himself in finding that the respondent had not engaged in a fertility diagnosis because she had not carried out the additional elements of a fertility test, as identified by the expert witness. Rather, such evidence was proffered to explain best veterinary practice and demonstrate the importance of engaging a registered veterinary practitioner to carry out fertility testing.

49. The expert witness was clear in his evidence that the respondent had gone further than merely collecting and analysing the semen when issuing the Certificate, and had sought to certify the fertility of the bull by completing the section which certified the animal as coming within “acceptable parameters”. This section of the Certificate did not state that the “semen” came within acceptable parameters but, rather, that the “animal” did. According to the expert witness, this amounted to an interpretation of the results arising from the semen analysis and, thus, constituted a diagnosis of fertility in the bull. Moreover, the expert expressed the opinion that the diagnosis of fertility in a bull amounted to the diagnosis of his state of health within the meaning of s. 53(1) of the 2005 Act. The opinion of Mr. Ó Scanaill that fertility diagnosis constituted the diagnosis of the state of health of an animal was not controverted by the respondent at the trial.

50. In the circumstances, says the appellant, it is difficult to see how the respondent’s actions did not amount to an assessment of the animal’s health and the certification thereof. The respondent’s actions either do or do not fall within the relevant statutory definition. The mere fact that registered professionals might provide a more elaborate service in relation to a given animal does not inform or determine the question as to whether the carrying out of such an analysis/diagnosis and certifying the result amounts to performing an act of veterinary medicine.

Submissions on behalf of the respondent

51. The respondent submits that the determination by the learned trial judge that the acts in question did not constitute the practice of veterinary medicine within the meaning of the 2005 Act was reasoned, correct and in accordance with the evidence adduced by the prosecution. From the outset, the defence fairly laid out the basis of the respondent’s defence. The defence solicitor made clear that a lay person can do a semen analysis and does not need to be a vet. Carrying out a semen analysis is not the same thing as fertility testing, and it was anticipated that prosecution witnesses would agree with that basic proposition. The evidence would show that fertility testing consists of a lot more than mere semen analysis, which is only one component of the exercise.

52. Thereafter, the defence solicitor cross examined the main prosecution witnesses and elicited answers which, it was contended, supported the respondent’s core defence. Reference was made to the response from the vendor of the bull confirming that the word “fertility” was never mentioned by the respondent at any stage.

53. The prosecution expert confirmed that normally a fertility test carried out by a veterinary practitioner is more elaborate than just a semen analysis, and these steps are outlined at para. 15 of the Case Stated. During cross examination, the expert witness confirmed that there was a distinction between mere semen analysis and the broader procedure associated with fertility testing.

54. Importantly, the witness was asked whether a lay person can take semen from an animal, and he confirmed that a lay person could do so. The witness was then asked whether a lay person could inform the farmer as to what the semen count was, and again the witness confirmed that a lay person could do so.

55. Finally, at the close of the solicitor’s cross examination, the witness was asked by the judge whether the procedure at issue was a semen analysis, to which he answered in the affirmative.

56. In the light of the evidence, counsel for the respondent submits that the district judge was perfectly entitled to conclude that the prosecution case amounted to no more than proof that the respondent had carried out a semen analysis. The ticking of the “acceptable parameters” box was no more than a statement as to the results of the semen analysis carried out. The analysis carried out by the district judge was logical, coherent and rational. He was perfectly within his rights to conclude that the prosecution case did not pass muster.

Analysis of the evidence at trial

57. The specific charge before the court was that the respondent, by issuing the Certificate, diagnosed the animal’s state of health. It is alleged that this occurred by way of the respondent certifying that the animal was fertile.

58. Based upon the evidential findings made by the learned district judge as recorded in the Case Stated, and in particular having regard to the frailties in the prosecution case, I am satisfied that the trial judge was entitled to come to the view that the prosecution had not proved its case. In my view, there was ample basis upon which it was open to the learned trial judge to conclude that there was sufficient doubt that the actions of the respondent amounted to fertility testing, or that the Certificate amounted to a diagnosis of the state of health of an animal within the meaning of s. 53 of the 2005 Act.

59. I accept the point that the appellant’s expert said that the Certificate issued by the respondent went further than semen analysis and that the ticking of the “acceptable parameters” box amounted to an interpretation of the results and therefore, it was suggested, amounted to a diagnosis of the “state of health” of the bull. However, there are a number of points to make about that aspect of the evidence. First, it is difficult to reconcile that response with the witness’s later confirmation that the procedure was still a semen analysis, which the evidence established was not per se unlawful, and was certainly not criminal.

60. Secondly, while there was no countervailing expert opinion, the witness’s statement that an interpretation of the semen analysis amounted to a diagnosis of the state of health of the bull was (a) no more than an opinion; (b) was an opinion on an issue of law; and (c) was an opinion on the ultimate issue relating to the question of guilt or innocence. On final analysis, that ultimate issue was a matter for the trial judge to determine. It cannot be correct that the mere recital of that opinion by the witness was binding on the trial judge, if in fact the judge did not accept the premise upon which it was based.

61. Thirdly, in the circumstances of the case, I think it was a stretch for the prosecution to contend that the process of analysing something did not include interpreting the results of such analysis. The evidence at trial established that the Act did not outlaw the carrying out of a semen analysis and the conveying of the results to interested parties. The expert evidence was to the effect that both elements were permitted. In my view, the prosecution evidence did not come close to excluding the possibility that such a process involved the testing party interpreting the results in some shape or fashion, so that he/she could be in a position to meaningfully explain to the owner the outcome of the analysis.

62. The Collins Online Dictionary gives a number of synonyms for the verb “to analyse”. These include: “interpret”, “examine” and “judge”. The same dictionary offers the following synonyms inter alia for the noun “analysis”: “interpretation”, “judgment” and “evaluation”. These definitions support the idea that the process of analysing something may be interpreted as including an element of interpretation.

63. Fourthly, the answers elicited by the defence created uncertainty as to the borderline between (permissible) animal testing which non-vets can lawfully carry out, and the forbidden zone of diagnosing an animal’s state of health, which the Act deems criminal if carried out by a non-vet. Since on the evidence the borderline between the two zones was fuzzy and unclear, it is not at all surprising that the trial judge was reluctant to find criminal liability.

64. In this instance, drawing on his experience and expertise, and having heard the live testimony of all of the witnesses, the trial judge, after rising to consider the issues and submissions made, delivered a concise and reasoned analysis which is captured at pages 34 and 35 of the transcript, the essentials of which are recorded in the Case Stated. Unlike a High Court judge who has the benefit of a full day’s hearing dedicated to legal submissions alone, a lever arch folder of statutory provisions and caselaw, and the benefit of written submissions on the core issues, a district judge has to deal with matters in “real time”, hear and assess the testimony of witnesses while they are giving their evidence, may often have other cases in the list for hearing or mention, and are generally expected to give a ruling or verdict at the conclusion of the case or shortly thereafter.

Answer to question (c)

65. In relation to the main issue in the case (question (c) in the Case Stated), the learned judge concluded that he had reasonable doubt in respect of the respondent’s actions. She had provided a semen analysis, and the evidence of the prosecution was that it was not contrary to the Act to provide a semen analysis. He noted the prosecution’s contention that a semen analysis forms part of a fertility test, and that a fertility test does not only consist of taking a semen analysis, but also involves other matters which were very carefully and expertly outlined by the prosecution witness. The learned judge then stated that he had sufficient doubt that the said analysis amounts to a health diagnosis within the meaning of s. 53 of the Act. Undoubtedly, this was the correct question to consider because the section outlaws the diagnosing of an animal’s state of health and does not expressly refer to the carrying out of fertility testing. All told, I found the judge’s reasoning to be clear and compelling.

66. The judge made it clear that he was not condoning the actions of either the company, Bull Test Ltd., or the respondent, Ms. Beavon, in the entire matter. However, with respect to the two charges before the court, he stated that he had a reasonable doubt, and because of that doubt, the respondent was entitled to a dismissal of the charges.

67. In my view, the succinct ruling given by the learned trial judge must be seen in light of the prosecution evidence heard before the court and the submissions made by the respective parties on foot of the evidence. Viewing matters through that prism, it was open to the learned trial judge to approach the matter in the way he did and reach the conclusion that he reached.

68. The trial judge clearly felt there was no evidence of, and the prosecution had not proved, that the respondent diagnosed the bull’s fertility or health. There was evidence that the owner of the animal and indeed other parties interpreted the Bull Test Ltd. Certificate as amounting to a diagnosis of fertility. There was also evidence (para. 5 of the Case Stated) that some members of the farming community including the Irish Angus Society viewed the Bull Test Ltd. Certificate as a sufficient warranty that the bull was fertile. However, while there was undoubtedly evidence that certain third parties viewed the Certificate in this way, in my view that is very different to the question of whether the provision of the Certificate, considered objectively, constituted such a diagnosis. If, as the trial judge found, the contents of the Certificate did not amount to a diagnosis of fertility or health, it was not determinative that several witnesses may have interpreted the Certificate in that way.

69. The appellant’s main argument is that the trial judge misdirected himself in law by concluding that, because there was no evidence that the respondent had carried out the additional elements of the process normally carried out by veterinary practitioners, this precluded a finding that the respondent was purporting to diagnose the fertility of the bull. In my view, it is neither fair nor correct to characterise the trial judge’s rationale in that fashion. The absence of evidence that the respondent carried out the additional elements identified by the expert was undoubtedly a relevant matter for the judge to consider, though not a determining factor in and of itself.

70. Indeed, in the course of submissions before me, counsel gave a colourful example of an enthusiastic bull that might be full of semen and yet unable to walk - such an animal may pass a semen test with flying colours, but would not be much use getting a cow in calf. Indeed, this was essentially the main point made by the veterinary expert in the present case – a fertility test carried out by professional vets includes a range of matters, including an internal and external examination of the animal that goes well beyond mere testing of the bull’s semen. Since this was one of the core points made by the expert in his evidence, it is difficult to see how the trial judge can be criticised for including this point in his analysis.

71. In my view, it would be unfair to the trial judge’s analysis to say that the direction was given solely on account of there being no evidence of the additional elements. Rather, the direction was given because the learned trial judge concluded from an overall assessment of the evidence that there was reasonable doubt that the said analysis amounted to a health diagnosis within the meaning of s. 53 of the Act (see the reasons for the ruling given on page

53 of the transcript). In coming to that conclusion, the trial judge will have been influenced by the concessions properly made by the prosecution expert, the lack of a clear borderline between what was permitted by way of semen analysis and prohibited by way of health diagnosis, the bare and limited nature of the Certificate itself, the absence of any evidence as to examination findings, and the absence of any pronouncement as to the animal’s condition, appearance, mobility or disease free status.

72. The fact that the Certificate stated that the “animal” fell within acceptable parameters, as distinct from the semen analysis, was in my view not enough to save the prosecution case. It could not sensibly be excluded that that meant no more than the bull’s semen analysis was within acceptable parameters.

73. In my view, the appellant’s submission to this court on the core issue focussed unduly on the summary of the trial judge’s findings at para. 24 (c) of the Case Stated, and failed to view the trial judge’s analysis of the evidence, and his overall rationale, in its full and proper context.

74. For these reasons, I find that the learned trial judge was correct to find that the prosecution had failed to prove their case. There was no actual evidence led to indicate that the respondent had diagnosed the health of the bull. In my view, it was open to the trial judge to find that there was a reasonable doubt that the actions of the respondent amounted to fertility testing or that the Certificate amounted to the diagnosis of the “state of health” of an animal within the meaning of s. 53 of the 2005 Act.

Two issues not determined

75. I propose not to determine, and to hold over for a suitable case, the separate question as to whether the diagnosis of the fertility of a bull does or does not amount to the diagnosing of a bull’s “state of health” within the meaning of the section. The parties and the learned trial judge proceeded on the working assumption that it did. Since the district judge determined that there was reasonable doubt as to whether the respondent’s actions amounted to a diagnosis of fertility, that necessarily disposed of the case and made it unnecessary for the judge to determine that separate question. In the circumstances, therefore, I propose not to determine that question in this judgment.

76. Secondly, in the present case, it should be noted that it was not pressed as part of the appellant’s case that the trial judge applied the wrong burden of proof or the wrong legal test when ruling on the defence application for a direction. Rather, the core submission made by the prosecution under this heading was that, based on the evidence before him, the trial judge should have been satisfied beyond a reasonable doubt that the respondent did engage in the practice of veterinary medicine on the day in question, to wit the diagnosis of the state of health of an animal within the meaning of s. 53(1)(a) of the 2005 Act.

77. Since that was the submission made, I do not propose to consider the separate question of whether the correct legal test for ruling on a direction application was or was not applied by the learned trial judge. In making that point, I don’t wish to be taken as indicating in any way that the learned trial judge applied an incorrect test. I am simply noting that no such submission was pressed before the court; and a point not made is a point not determined.

78. It might be useful, nonetheless, if I refer briefly to two authorities on this discreet issue. In DPP v. Buckley [2007] 3 I.R. 745, Charleton J. in the High Court noted that the issue before a trial judge at a direction stage, on the close of the prosecution’s case, was whether the prosecution had adduced sufficient evidence which might enable a safe conviction to occur on a full consideration of the evidence by the tribunal of fact. It was the trial judge’s duty, at that point, to stop a trial if that evidence was absent. A trial judge must bear in mind, however, that it was the fundamental duty of a jury, or a trial judge as the tribunal of fact, to decide facts and, in that regard, apply reason and common sense to the evidence. It was their task to weigh the importance of the individual pieces of evidence in determining the issue as to whether the prosecution have discharged the burden and standard of proof.

79. The Supreme Court expressly approved Charleton J.’s dictum in Buckley in DPP v. DT [2025] IESC 25. In DT, the Supreme Court noted that the applicable test for a trial judge in stopping a case at the close of the prosecution evidence equates with the test under s. 4 (e) of the Criminal Procedure Act 1967, as substituted by s. 14 of the Criminal Procedure Act 2021 which simply provides that “at any time after the accused is sent forward for trial, the accused may apply to the trial court to dismiss one or more of the charges against the accused.”

80. In his earlier decision in Buckley, Charleton J. stated the following at para. 14: “In considering, at the close of the prosecution case, whether sufficient evidence has been adduced to allow the case to proceed to the defence case, or to submissions, a trial judge should be concerned to see whether the proofs necessary to make out the charge have been adduced in evidence. At that stage, the trial judge is not concerned with issues of credibility or with sufficiency of proof but with the technical nature of the elements of the offence and whether these have been reflected in evidence by proof. There can be exceptional cases where the nature of a necessary proof is found to be so tenuous that a trial judge would be compelled to make a conclusion that any consequent conviction would be unsafe. In those very rare cases the issue as to conviction might be withdrawn from the jury, or from the judge acting as the tribunal of fact.”

81. For completeness, I will also refer to the test for a direction in the context of indictable crime and the decision of the Court of Appeal (Edwards J.) in DPP v. M [2015] IECA 65 where the court clarified a misconception as to the second limb of Lord Lane’s well-known statement in R v. Galbraith [1981] 1 W.L.R. 1039. Under the first limb of the Galbraith test, if there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty: the judge will stop the trial. In assessing the second limb of the test, as to whether the state of the evidence called by the prosecution, taken as a whole, is so unsatisfactory, contradictory or transparently unreliable, that no jury, properly directed, could convict, the judge must bear in mind the constitutional primacy of the jury and not usurp its function.

82. Obviously, we are not in the present context dealing with a jury, and the tribunal of fact is the trial judge himself. The applicable test for a direction is that stated by Charleton J. at paras. 74 - 76 above.

Consideration of question (a) of the Case Stated

83. In this question, the opinion of the High Court is sought as to whether the learned district judge was correct in his finding that the respondent was the incorrect defendant as she had a separate legal personality to the company, Bull Test Ltd., and it was the company that issued the Certificate.

84. It seems to me that since the answer to the third question disposes of the appeal, it is not necessary that I should deal to any great extent with questions (a) and (b) in the Case Stated. Nonetheless, as three questions have been posed, it is appropriate that I should at least give my view on each of the questions. Undoubtedly, the fact that it was the company that appeared to issue the Certificate, and that the name of the company appeared at the top of the document, were factors that potentially weakened the prosecution case against Ms. Beavon. However, I am inclined to the view that the “corporate liability v personal liability” point was more a matter for submissions at the end of the entire case, rather than as a direction point.

85. The prosecution witness Mr. Finucane was asked whether the respondent attended at his farm on the day in question and whether she gave him the Certificate. He is recorded on the transcript (page 13) as saying “I wouldn’t be sure now of the date but have always – she done it two years in succession for me”. It was the appellant’s case that the respondent had personally been carrying out fertility testing for Mr. Finucane over a prolonged period of time. The appellant also makes the point that it was never disputed by the respondent’s solicitor that the appellant herself signed the Certificate in her own name.

86. The appellant contends that on a fair reading of the evidence, the following was established to the required standard:

• That the respondent attended at Mr. Finucane’s farm on the 30th March 2022 and had done so over the previous two years.

• She obtained the semen sample from the bull.

• She analysed the sample.

• She completed the Certificate in question.

• She signed the Certificate in her own name.

• She furnished the Certificate to Mr. Finucane.

87. It is also noted that the signature section of the Certificate does not specify that the respondent was signing it in her capacity as director of the company. The appellant maintains that even if the position were otherwise, the respondent would still be the correct defendant. The purpose of establishing a limited liability company is to shield the members of the company (i.e. the shareholders) from civil liability. There is no provision of the Companies Act 2014 that protects a person who commits an offence from criminal liability by reason of the simple expedient of there being a separate corporate entity undertaking the business.

88. The appellant contends that, where a person commits an offence under the aegis of a limited liability company, they are equally liable to prosecution as if they were trading on their own account. In short, limited liability offers no limitation of criminal liability. The appellant submits that the trial judge fell into error in that he appears to have considered that, because there was a legal entity (the company) that had a coterminous criminal liability with that of the respondent, this alleviated the respondent of criminal liability.

89. In my view, based on its own merits, the “wrong defendant” point was not sufficiently strong to ground a direction application at the close of the prosecution case. The only charges before the court were the summonses that had issued against the respondent personally. The case against the respondent fell to be determined in accordance with the merits or otherwise of the prosecution case against that respondent. It was not a full answer to the prosecution case, at the direction stage, for the respondent to argue that criminal liability may lie with a corporate entity.

90. Moreover, as noted at para. 6 of the Case Stated, the respondent at trial conceded that she traded under the name Bull Test Ltd., and that it was her company.

91. Accordingly, if it were necessary to determine the question, I would answer question

(a) in the negative. However, I think it is only fair to note that, in view of the trial judge’s ultimate conclusion that the prosecution case had come up short, it was perfectly understandable that the trial judge included this point as to the identity of the party that issued the Certificate in his reasons for dismissing the case.

Consideration of question (b) in the Case Stated

92. Under this heading, the opinion of the High Court is sought on the question as to whether the learned district judge was correct to rule that the appellant was not entitled to rely upon the provisions of s. 136 of the 2005 Act, as he had a reasonable doubt that there was evidence of wilful neglect on the part of the respondent.

93. It is fair to record that this particular point was not pressed by the appellant in oral submissions before me. It was also indicated that, if the appellant was correct on question (a), this obviated the necessity for the court to resolve question (b). In the circumstances therefore, I do not propose to address this aspect further. The answer to question (b) therefore is – “does not arise”.

Conclusion

94. In coming to the conclusion that the appellant had failed to prove their case, the learned trial judge made clear that he was not for one moment condoning either the actions of the company or the respondent personally. In other words, the judge was not getting into the moral or societal issue as to whether it was an appropriate state of affairs that non-vets would carry out such activities. The issue the judge had to consider was the legal question as to whether the appellant had proved that the respondent was guilty of the two criminal charges before the court.

95. For the reasons stated, I propose that the questions posed at para. 24 of the Case Stated should be answered as follows:

(a) No. It was not correct for the trial judge at the direction stage to rule that the respondent was the incorrect defendant.

(b) This question does not arise in the circumstances.

(c) Yes - the trial judge was correct to conclude that there was sufficient doubt that the actions of the respondent amounted to fertility testing and that there was sufficient doubt that the Certificate amounted to the diagnosis of the “state of health” of an animal within the meaning of s. 53 of the 2005 Act.

96. In the circumstances, I refuse the appellant’s appeal, and the acquittal stands.

Signed: Micheál O’Higgins

Appearances: For the appellant: Remy Farrell SC and Stephen O’Donoghue BL instructed by Fieldfisher Ireland LLP. For the respondent: Ronan Barnes BL instructed by O’Donovan, Murphy and Partners LLP.