Pharmacy owner sees 55 charges dismissed
Judge says prosecution didn’t come ‘within an ass’s roar’ of proving case
A TOTAL OF 55 charges against a local pharmacist relating to providing veterinary medication without a prescription were struck out at the District Court last week after the judge said that the prosecution hadn’t come ‘within an ass’s roar’ of proving the case.
David Garahy of Garahy’s Pharmacy on Slaney Street appeared before Judge Timothy Lucey last week, where he contested the charges against him. It was alleged that, due to huge discrepancies between the amounts of stock ordered by suppliers and the amount stock on hand, Mr Garahy had been selling these animal remedies without a prescription.
Judge Lucey pointed out that the prosecution had no evidence of someone purchasing medications without a prescription and defending solicitor Michael Lanigan said that ‘ the court is being invited to make a series of suppositions’.
Mr Garahy was, however, convicted on a single count of failing to keep proper records and fined €1,000.
A WELL-KNOWN Enniscorthy Pharmacist appeared before the District Court last week charged with a total of 55 charges of providing veterinary medication without prescription and one count of failure to keep proper records.
David Garahy of Garahy’s Pharmacy, 6 Slaney Street, Enniscorthy was present in court and contested the case being taken by the Department of Agriculture, Food and Marine. It was asserted during the course of the case that ‘ thousands’ of animal medication items were effectively ‘missing’ and unaccounted for and there was no record where they ended up.
Following a lengthy hearing, Mr Garahy was convicted on the single count of failing to keep proper records, while the remaining 55 charges were dismissed, owing to, as the Judge saw it, a lack of tangible evidence.
It was the contention of the prosecution, led by Barrister Brian Gageby, that Mr Garahy, supported in court by former TD John Browne, had sold or supplied large quantities of animal remedies at his Enniscorthy Premises between January 1 and October 6 of 2016, when an inspection took place. It would also be maintained that Mr Garahy failed to keep up to date records of outgoing stock and that there were huge discrepancies between the amount of medication ordered from suppliers and the amount that was on hand at the premises on the date of the inspection on October 6, 2016. Mr Gageby posited that the only credible reason for this was that the medicines had been sold without proper records being made and without being matched to prescriptions as was the requirement.
The defence, Mr Michael Lanigan, set out from the very beginning that there could be any number of reasons for the difference between quantities of stock provided from suppliers and the amount Mr Garahy had on hand and that the prosecution had no proof that the balance had been sold. However implausible they may seem, scenarios such as theft, loss of the stock in flooding and other scenarios were played out as hypothetical reasons for the discrepancy.
Judge Timothy Lucey heard from three inspectors who visited Mr Garahy’s store on the day in question, the first of whom, Mr Louis O’Riordan, said that Mr Garahy informed him that half of his records were away at the accountant - something he said was against requirements and regulations. He then said he obtained a list of Mr Garahy’s suppliers and a list of medication that Mr Garahy had ordered from them since January of that year. He said there were huge discrepancies between these numbers and the amount of stock that Mr Garahy had to hand.
By way of example, Mr O’Riordain pointed out that Mr Garahy had ordered in a spray used for animal wounds numbering 662 units. In the shop on the day, there were only 86 to hand and there were reported sales of zero. This left 556 units accounted for. Similarly, the records showed Mr Garahy
acquired 2,020 units of Novivac dog vaccine from his suppliers of which there were only 192 present in the shop at the time of inspection, again with zero recorded sales, leaving 1,828 units unaccounted for. These were just two of the 55 charges of this nature against the pharmacist.
The defence, Mr Lanigan, took major issue with the manner in which the audit was carried out on the day in question by the three inspectors. When Mr Brendan Daly took to the stand, he explained that his role in the inspection had been taking down notes of stock levels in the shop as called out by his colleague Ms Martina Ryan. Mr Lanigan pointed out that these notes were taken down on loose sheets of paper.
‘How do you know that you have all of the sheets?’ Mr Lannigan asked.
‘I’m satisfied I do,’ Mr Daly replied. ‘I kept them all together. I can’t prove that, but I’m satisfied that I have all the sheets.’
Upon hearing the evidence of all three inspectors, Mr Lannigan made a submission to Judge Lucey. He maintained that the prosecution were positing that at a date unknown between January 1 and October 6, Mr Garahy had sold animal medication without prescription. He said, however, that the burden of proof rested with the prosecution and that they had no evidence that Mr Garahy had in fact sold medication without prescription. He also said that the audit carried out by the inspectors was ‘unreliable’ and did not stand up to scrutiny. At no point, he said, was his client asked whether he was holding stock anywhere else, for example in the boot of his car, his home or a different storage facility. Mr Gageby said that this was also illegal, but the Judge pointed out that that would be a different offence.
‘ The court simply cannot rely on the audit when it’s simply not an audit,’ said Mr Lannigan. ‘ The thoroughness required was simply not applied. I don’t believe the court can leap to the conclusion that my client offered these medications for sale or supply in this jurisdiction in the absence of any evidence. Instead, the court is being invited to make a series of suppositions.’
Dealing with the 55 counts of providing medication without a prescription first, Judge Lucey was firm in his judgement saying: ‘ The prosecution is not within an ass’s roar of proving the case. The assumption is that he must’ve sold or supplied the medicine, but there’s no evidence that he did. The first witness I expected to hear from was a random ‘Joe Bloggs’ who could say that he bought medication without prescription, but there was no evidence that anyone was supplied or sold to.’
‘If someone is to be prosecuted in criminal law, it must be specific,’ he continued. ‘When was the medication supplied? To whom? Is there any evidence it was supplied? No, there’s nothing. He couldn’t be guilty to selling to someone if there’s no evidence, that’s how criminal law works. Those charges are dismissed.’
In relation to the charge of failing to keep proper records, Mr Lannigan stated that the regulation was to keep correct records of sales. Again, he pointed out that there was no evidence that the medication had been sold. Mr Gageby said that the purpose of this Section 34 was for pharmacists to keep records and were it to be interpreted in favour of Mr Garahy, it would ‘make a mockery of the act’.
Judge Lucey did conceded that the legislation was ‘far from watertight’ on the matter.
‘I’m not sure this legislation has achieved what it set out to achieve,’ he said. ‘It’s the movement of the stuff (the medication) that should be of concern, not its sale. I don’t know why the legislation is so fixated on the sale. We want to know where it’s going and who’s getting their hands on it. This is a public health issue, not a matter for the Revenue Commissioners.’
Concluding the matter after a rather lengthy hearing, however, Judge Lucey said: ‘ There is so much stuff missing, if I may use that word, that the records simply must be deficient,’ he said. ‘I think he (Mr Garahy) did fail to keep proper records. Thousands of items were missing and nobody knows where they went.’
‘ The difficulty you have,’ he said to Mr Lannigan, ‘ is that there is such a gross discrepancy here. The volume is enormous. We’re not talking one or two items being stolen here.’
Judge Lucey found that Mr Garahy was in breach of the regulations in relation to record keeping and opted to convict on this sole charge.
Mr Lannigan told the court that his client would turn 70 next month and was ‘on the verge of retirement’. He said that the Department had complained to the professional body about Mr Garahy’s conduct in addition, so there would be ‘another outing’. He pointed out that his client had no previous convictions, having qualified in 1972, and currently employs 11 people.
‘His record keeping, to his distress, was inadequate,’ Mr Lannigan said. ‘But steps have been taken in the aftermath to ensure records are now kept dutifully’
With the charge carrying a maximum fine of €5,000, having considered all the elements of the case, Judge Lucey opted to hand Mr Garahy a €1,000 fine with three months to pay. He also ordered that he pay a contribution of €1,200 to the prosecution’s costs.
THE PROSECUTION IS NOT WITHIN AN ASS’S ROAR OF PROVING THE CASE – JUDGE TIMOTHY LUCEY