Melling v O Mathghamhna

• Jurisdiction: Ireland
• Judgment Date: 01 January 1963
• Date: 01 January 1963
• Docket Number: (1959. NO. 333 P.)
• Court: Supreme Court

Supreme Court.

(1959. NO. 333 P.)

Melling v. O Mathghamhna and the Attorney General.

PETER MELLING

Plaintiff

and

MICHEÁL micheál SEOSAMH O MATHGHAMHNA, and By Order THE ATTORNEY GENERAL

Defendants.

Constitution of Ireland - Revenue - Customs and Excise - Charges of smuggling butter - Whether offences civil or criminal - Whether such offences major offences or minor offences - Whether such offences may be tried summarily - Constitution of Saorstát Eireann, Arts. 72, 73 - Constitution of Ireland, Arts. 38, 50 - Customs Consolidation Act, 1876 (39 & 40 Vict., c. 36),ss. 132, 186, 218, 236, 237, 247, 249 - Customs and Inland Revenue Act,1879 (42 & 43 Vict., c. 21), ss. 11, 12 - Revenue Act, 1883 (46 & 47Vict., c. 55), s. 4 - Dairy Produce (Price Stabilisation) Act, 1935 (No. 21of 1935), s. 24, sub-s. 1 - Customs (Temporary Provisions) Act, 1945 (No. 14 of 1945), s. 13 - Customs Act, 1956 (No. 7 of 1956), s. 2.

Plenary Summons.

The plaintiff, Peter Melling, was charged in the District Court on fifteen charges, all of which were of a similar nature, relating to the smuggling of butter into the State. The offences alleged constituted a contravention of the Dairy Produce (Price Stabilisation) Act, 1935, s. 24, and the Customs Consolidation Act, 1876, s. 186. The Revenue Commissioners, under the provisions of the said s. 186, elected to proceed for a penalty of £100 in each of the fifteen charges. The first charge, owing to a technical defect therein, was not in fact proceeded with, so that only fourteen charges were dealt with in the proceedings in the District Court.

In the District Court the plaintiff contended that the District Justice had no jurisdiction to try the charges by reason of the provisions of the Constitution of Saorstát Eireann and the Constitution of Ireland. He argued that these provisions required that charges under s. 186 of the Customs Consolidation Act, 1876, should be tried by a judge and a jury. The grounds of this contention were that such charges were criminal charges and were not criminal charges of a minor nature; the above-mentioned provisions of the Constitutions authorised the trying of minor criminal offences in a summary manner, while all other criminal offences are required to be tried before a jury. The plaintiff asked for, and obtained, an adjournment to have this matter decided by the High Court, and he instituted proceedings against the defendant, Micheál S. Mathgamhna, claiminginter alia a declaration that the provisions of s. 186 of the Customs Consolidation Act, 1876, and ss. 11 and 12 of the Customs and Inland Revenue Act, 1879, and ss. 232 and 238 of the Customs Consolidation Act, 1876, were inconsistent with the provisions of the Constitution of Saorstát Eireann and the Constitution of Ireland. By order of the Supreme Court the Attorney General was added as a defendant.

Smuggling offences under the provisions of the Customs Consolidation Act, 1876, s. 186, are criminal offences.

So held by the Supreme Court (Maguire C.J., Lavery, Kingsmill Moore, Ó Dálaigh ó dálaigh and Maguire JJ.)

Such smuggling offences are minor offences which can be tried in a summary manner as authorised by Article 38, 2, of the Constitution.

So held by the Supreme Court (Maguire C.J., Lavery, and Maguire JJ.; Kingsmill Moore and Ó Dálaigh ó dálaigh JJ. dissenting).

McLoughlin J. :—

This action is brought by the plaintiff, a commercial traveller, against the first-named defendant, an officer of the Customs and Excise, and the second-named defendant, the Attorney General, added by order, claiming 1, a declaration that each of the provisions of the Customs Acts, and in particular of s. 186 of the Customs Consolidation Act of 1876 and ss. 11 and 12 of the Customs Act of 1879 and ss. 232 and 238 of the said Act of 1876 which purport to enable an offence against s. 186 aforesaid to be tried by Courts of summary jurisdiction or purport to provide that a person may be tried and sentenced to imprisonment without a jury upon a charge of having contravened the said s. 186 are inconsistent with the provisions of the Constitution of Saorstát Eireann and are inconsistent with the provisions of the Constitution of Ireland and are invalid having regard to the provisions of the said Constitution of Saorstát Eireann and the said Constitution of Ireland and were and are of no force and effect. 2, an injunction to restrain the first-named defendant from proceeding or attempting to proceed in a summary way against the plaintiff pursuant to informations alleging offences against s. 186 of the Customs Consolidation Act, 1876, upon informations sworn by the said defendant.

The statement of claim sets out the nature of the alleged offences against s. 186 of the Customs Consolidation Act, 1876, which I need not re-state. They are the self-same offences are were the subject-matter of a decision given by the President of the High Court in the case of The State (Attorney General) v. District Justice Mangan and Reginald Deaton (unreported), proceedings by way of certiorari.The other members of the Court sitting with the President— Mr. Justice Haugh and Mr. Justice Teevan—concurred with his decision.

The order made in the High Court pursuant to that decision was reversed in the Supreme Court on a point which does not arise in the case before me.

On the matters of law argued in this case which were argued fully in Deaton's Case (unreported) in the High Court I feel I should hold myself bound by the unanimous decision of the President, Mr. Justice Haugh and Mr. Justice Teevan and it is not contested that, if I hold myself so bound, I must dismiss this action, which I accordingly do.

In view of the importance of the issues involved I wish to add that I fully agree with the decision given by the learned President. I am satisfied that the alleged offences, the subject-matter of this action, are not criminal offences and further that, if, contrary to this view, they are criminal offences, they are minor offences which can be tried summarily without a jury.

I have not stated reasons for the decision at which I have arrived, it having been stated that it is a matter of urgency that my decision should be given without delay as there are a number of similar cases pending in the District Court; but I have given the arguments advanced by counsel appearing in the case full consideration.

From the above judgment the plaintiff appealed to the Supreme Court (1) on the grounds 1, "that the learned High Court Judge misdirected himself in law in dismissing this action."

"2, That the learned High Court Judge in particular misdirected himself in law in not holding, upon the facts and documents proved in evidence, that the offences charged against the plaintiff (a) were criminal charges and (b) were not minor offences, within the meaning of the Constitution of Saorstát Eireann and of the present Constitution; and that accordingly the plaintiff by virtue of the provisions of each of the said Constitutions was entitled to a trial of the said offences by a jury; and that the learned High Court Judge consequently misdirected himself in law in not granting the declaration, injunction and other relief sought by the plaintiff in this action."

Cur. adv. vult.

Maguire, C.J. :—

I agree with the judgment of Mr. Justice Lavery which Mr. Justice Maguire will read in his absence.

Lavery J. :—

This is an appeal by the plaintiff from the judgment of Mr. Justice McLoughlin in the action in which the learned Judge dismissed the plaintiff's claim.

The plaintiff claimed a declaration that certain provisions of the Customs Acts, and in particular s. 186 of the Customs Consolidation Act, 1876, and ss. 11 and 12 of the Customs Act, 1879, and ss. 232 and 238 of the said Act of 1876 which authorise the trial of offences under the sections to be tried by a Court of summary jurisdiction, are inconsistent with the provisions of the Constitution of Saorstát Eireann and with the provisions of the Constitution and are therefore invalid and claiming an injunction to restrain the first-named defendant from proceeding in a summary way against the plaintiff pursuant to informations alleging offences against the relevant sections. I do not propose to set out at length the facts and circumstances of the case save in so far as is necessary to deal with the issues raised. These facts and circumstances are set out in the judgment which Mr. Justice Kingsmill Moore will deliver and which I have had an opportunity of reading.

The plaintiff was charged in the District Court on fifteen charges stated in similar terms relating to different transactions. It is sufficient to quote the terms of one of the charges. The plaintiff was charged "that you were knowingly concerned in dealing with prohibited goods, to wit, 224 pounds of butter, the importation of which was prohibited by section 24 of the Dairy Produce (Price Stabilisation) Act, 1935, as amended, with intent to evade such prohibition, contrary to section 186 of the Customs Consolidation Act, 1876."

The District Justice adjourned the charges on being informed that the action claiming the declaration above set forth had been instituted and they stand adjourned until the determination of this appeal.

The relevant Article of the Constitution is:—Article 38, ss. 1, 2 and 5:—

"1. No person shall be tried on any criminal charge save in due course of law.

2. Minor offences may be tried by courts of summary jurisdiction."

"5. Save in the case of the trial of offences under section 2, section 3 or section 4 of this Article no person shall be tried on any criminal charge without a jury."

Article 72 of the Constitution of Saorstát Eireann contained a somewhat similar provision. It reads:—

"No person shall be tried on any criminal charge without a jury save in the case of charges in respect of minor offences triable by law before a Court of Summary Jurisdiction and in the case of charges...