Attorney General v Judge Sheehy

• Jurisdiction: Ireland
• Judgment Date: 25 January 1988
• Docket Number: [1987 No. 21 J.R.]
• Date: 25 January 1988
• Court: High Court

The Attorney General v. Judge Sheehy

The Attorney General

Applicant

and

His Honour Judge David Sheehy, Respondent and John Bowman, Notice Party

[1987 No. 21 J.R.]

High Court

Fisheries Acts - Offence - Detention of boat by sea fisheries protection officer - Order of District Court releasing boat on payment into court of security for costs, fine and forfeitures - Defendant convicted - Order for fine and costs to be deducted from money lodged - Balance returned to defendant - Order for forfeiture of catch and fishing gear - Whether court had power to order additional sum to be deducted from security in lieu of order of forfeiture - Fisheries (Consolidation) Act, 1959 (No. 14), s. 235, sub-s. 2 (a) - Fisheries (Amendment) Act, 1978 (No. 18), s. 2, sub-s. 5, s. 14.

Section 235, sub-s. 2 (a) of the Fisheries (Consolidation) Act, 1959, as inserted by s. 14 of the Fisheries (Amendment) Act, 1978, provides that a district justice may require a boat which has been detained pending charges under the Act to be released upon payment into court of a sum of money which is sufficient security for payment of the fine and award of costs which may be ordered and for the estimated value of any catch and Bear which may be forfeited upon the determination of those proceedings.

The notice party, who was charged with an offence under the Acts and whose boat was detained by a sea fisheries protection officer, obtained from the District Court an order releasing the boat upon lodgment of security. He was subsequently convicted of that offence by the respondent in the Circuit Court and was fined and ordered to pay the costs of the proceedings. The court also made an order under s. 2, sub-s. 5 of the Act of 1978 for the forfeiture of the catch and fishing gear of the notice party.

On behalf of the applicant, the prosecuting authority under the Acts, it was submitted to the Circuit Court that the value of the catch and gear forfeited, together with a sum in respect of fine and costs, should be deducted from the security lodged in court, and that such sums should be paid to the applicant in lieu of an order of forfeiture. The ground for this application was that an order for forfeiture could not be executed, as the notice party's catch and gear had been removed from the jurisdiction. The respondent held that there was no provision in the Acts for the deduction of a sum from the monies lodged in court in lieu of an order of forfeiture, and ordered that a sum in respect of fine and costs only be deducted from the lodgment, the balance to be returned to the notice party. On the applicant's application by way of judicial review for an order of certiorari quashing the respondent's order and for an order of mandamus directing the respondent to make an order that a sufficient sum be paid out of the security in lieu of forfeiture, it was

Held by Murphy J. in refusing the application, 1, that the respondent had no power upon conviction, in lieu of an order for forfeiture of catch and gear, to estreat that part of the security provided by a boat owner equal to the value of the catch and gear released on foot of such security.

2. Semble. That it might have been open to the respondent, having made an order for forfeiture of catch and gear, to decline to release any part of the security lodged in court until he was satisfied that the forfeiture order had operated effectively.

3. That the respondent had statutory power to release the security lodged in court; the fact a different course might have been taken if different arguments had been addressed to the court did not mean that the respondent had acted without or in excess of jurisdiction.

The State (Holland) v. Kennedy [1977] I.R. 193 and Gill v. Connellan[1987] I.R. 541 considered.

Cases mentioned in this report:—

The State (Holland) v. Kennedy [1977] I.R....