Ag v Wallace

JurisdictionIreland
JudgeMr. Justice Geoghegan
Judgment Date05 June 1996
Neutral Citation1996 WJSC-HC 2662
Docket NumberNo. 462 JR/1994
CourtHigh Court
Date05 June 1996
AG v. WALLACE
JUDICIAL REVIEW

BETWEEN

THE ATTORNEY GENERAL
APPLICANT

AND

DISTRICT JUDGE BRENDAN WALLACE
RESPONDENT

AND

DAVID ANDREW
NOTICE PARTY

1996 WJSC-HC 2662

No. 462 JR/1994

THE HIGH COURT

Synopsis:

FISHERIES

Sea fisheries

Boat - Master - Detention - Offence - Prosecution - Commencement - Promptitude required by statute - Master to be brought before District Court as soon as may be - Compliance with statute 32 hours after the boat berthed - Delay caused by annual conference of judges of District Court - Compliance with statute affirmed - Fisheries (Consolidation) Act, 1959 (No. 14), s. 234 - Fisheries (Amendment) Act, 1978 (No. 18), s. 13 - (1994/462 JR - Geoghegan J. - 18/6/96)

|The Attorney General v. Wallace|

WORDS AND PHRASES

"As soon as may be"

Fisheries - Boat - Detention - Authorisation - Application - Promptitude required - Master to be brought before District Court as soon as may be - Compliance with statute 32 hours after the boat berthed - Delay caused by annual conference of judges of District Court - Compliance with statute affirmed - (1994/462 JR - Geoghegan J. - 18/6/96)

|The Attorney General v. Wallace|

Citations:

FISHERIES (CONSOLIDATION) ACT 1959 S234

FISHERIES (AMDT) ACT 1978

FISHERIES (CONSOLIDATION) ACT 1959 S234(1)

FISHERIES (CONSOLIDATION) ACT 1959 S233

CRIMINAL PROCEDURE ACT 1967 S8

CRIMINAL PROCEDURE ACT 1967 S13

FISHERIES (AMDT) ACT 1978 S2(2)

FISHERIES (CONSOLIDATION) ACT 1959 S233A

KENNEMERLAND V AG 1989 ILRM 821

DPP, STATE V RUANE UNREP BLAYNEY 6.2.87

SANGAN, STATE V O SIORAIN UNREP MCMAHON 26.1.81

O'MAHONY V MELIA 1989 IR 335

MAGUIRE V SHELLEY & DPP 1992 1 IR 483

AG V BEIRNE 1943 IR 480

LYNCH, STATE V BALLAGH 1986 IR 203

KEATING V GOV OF MOUNTJOY PRISON 1991 1 IR 61

1

Mr. Justice Geoghegandelivered the 5th day of June 1996

2

This is an application for Judicial Review brought pursuant to an Order granting leave made by Mr. Justice O'Hanlon on the 12th December, 1994. The reliefs sought are:

3

2 "(1) An Order of Certiorari by way of Judicial Review of the decision of the above named Respondent made on Sunday, the 17th September, 1994 at 3.00 p.m. whereupon the Respondent refused to entertain certain charges and proceed under Section 234 of the Fisheries (Consolidation) Act, 1959as amended by the Fisheries (Amendment) Act, 1978.

4

(2) An Order of Declaration by way of an application for Judicial Review granting liberty to the Plaintiff to institute proceedings under the aforesaid Act, the subject matter of thisapplication."

5

Subsection (1) of the said Section 234 of the 1959 Act, as inserted by the Act of 1978, reads as follows:-

"Where a Sea Fisheries Protection Officer has in exercise of the powers conferred on him by Section 233 detained a boat and the persons on board the boat at a port, any Sea Fisheries Protection Officer shall, as soon as may be, bring the Master of the boat and any other persons on board the boat against whom proceedings for an offence under a provision of Chapter II or III of this Part have been or are about to be instituted before a Judge of the District Court and thereupon the said. Judge shall if he is satisfied that such proceedings have been or are about to be instituted against the Master and those other persons or any one or more of them by Order directed to a Sea Fisheries Protection Officer require such officer to detain at a specified port in the State the boat and each person (including the Master) aforesaid in respect of which he is so satisfied until such proceedings have been adjudicated upon by a Judge of the District Court under Section 8 or 13 of the Criminal Procedure Act, 1967or under Section 2(2) of the Fisheries (Amendment) Act, 1978or otherwise in the exercise of his summaryjurisdiction."

6

An application under that Section was made to the Respondent on the 17th September, 1994 but he refused to entertain it on the grounds that the application had come before the Court too late and not "as soon as may be" as required by the Section. The Attorney General seeks to have this decision quashed.

7

The facts surrounding the application are neatly set out in the Affidavit of Mr. Malachi Boohig, State Solicitor for the County of Cork W.R., sworn on the 13th December, 1994. I think it useful to set out the relevant paragraphs of that Affidavit verbatim. They read asfollows:-

8

2 "4. I say that on or about 07.00 hours on the 17th September, 1994 I was contacted by Sergeant Goulding to say that a U.K. registered fishing vessel "MARINEDA" was arriving at Castletownbere at that time. I informed Sergeant Goulding that I would arrange for a Court for the obtaining of a 48 hour Detention Order under the provisions of Section 233A of the Fisheries (Consolidation) Act, 1959as amended.

9

5. At 09.00 hours, I telephoned Mr. Michael Goulding, District Court Clerk, Bandon, at his home and informed him that a fishing vessel had been detained and had arrived in Castletownbere and requested Mr. Goulding to arrange a Special Court for the purposes of obtaining the said 48 hour Detention Order. In that conversation, I say that Mr. Goulding stated that he would do this, but he also stated that, to his knowledge, all of the available District Judges in County Cork, with the exception of Judge MacGruairc who was attending his mother's funeral, were attending their annual statutory meeting in Athlone at thatdate.

10

6. On or about 10.30 hours on...

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