Considine v Shannon Regional Fisheries Board

JurisdictionIreland
JudgeHamilton C.J.
Judgment Date01 January 1998
Neutral Citation1998 WJSC-SC 4871
CourtSupreme Court
Docket Number[1991 No. 8214P and S.C. No. 394 of 1994]
Date01 January 1998

1998 WJSC-SC 4871

THE SUPREME COURT

HAMILTON C.J.

O"FLAHERTY J.

BARRINGTON J.

KEANE J.

MURPHY J.

394/93
CONSIDINE v. SHANNON REGIONAL FISHERIES BOARD & MIN MARINE

BETWEEN:

NOEL CONSIDINE
Plaintiff/Appellant

and

SHANNON REGIONAL FISHERIES BOARD, THE MINISTER FOR THE MARINE, THE ATTORNEY GENERAL AND IRELAND
Defendants/Respondents

Citations:

FISHERIES (CONSOLIDATION) ACT 1959 S310

CONSTITUTION ART 38

FISHERIES (CONSOLIDATION) ACT 1959 S310(i)

FISHERIES (CONSOLIDATION) ACT 1959 S310(ii)

FISHERIES (CONSOLIDATION) ACT 1959 S96(1)

FISHERIES (AMDT) ACT 1962 S10

FISHERIES ACT 1980

FISHERIES (CONSOLIDATION) ACT 1959 S183(2)(a)

FISHERIES (CONSOLIDATION) ACT 1959 S285(a)

FISHERIES (AMDT) ACT 1962 S24

FISHERIES (CONSOLIDATION) ACT 1959 S301(7)

CONSTITUTION ART 38.1

CONSTITUTION ART 34.3.4

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961

DPP, PEOPLE V O'SHEA 1982 IR 384

CONSTITUTION ART 34.4.3

CONSTITUTION ART 38.5

COURTS OF JUSTICE ACT 1928 S18(2)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S48(1)(a)(1)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S48(3)

COURTS OF JUSTICE ACT 1928 S5(i)

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

FISHERIES ACT 1850 S51

FISHERIES ACT 1850 S53

FISHERIES ACT 1850 S54

INLAND REVENUE (NO 2) ACT 1861 S19

FISHERIES ACT 1939 S100

BENSON V NORTHERN IRELAND ROAD TRANSPORT BOARD 1942 AC 520

COX V HAKES 1890 15 AC 506

GREAT SOUTHERN & WESTERN RAILWAY CO V GOODING 1908 2 IR 429

R V DUNCAN 7 QBD 198

COURTS & COURT OFFICERS ACT 1995 S44

Synopsis:

Constitutional

Legislation; constitutional validity; right to trial in due course of law; whether s.310 Fisheries (Consolidation) Act, 1959 repugnant to Constitution; whether appeal can lie from dismissal of a criminal charge; double jeopardy; whether legislature can provide for such an appeal; Art. 34.3.4 of the Constitution Held: Legislation not repugnant to Constitution Supreme Court: Hamilton C.J., * O'Flaherty J., Barrington J., Keane J., Murphy J. * Decision of the Court delivered by Hamilton C.J. 05/06/1997

Considine v. Shannon Regional Fisheries Board

[1998] 1 ILRM 11

1

Judgment of the Court delivered on the 5th day of June 1997 by Hamilton C.J.

2

This is an appeal brought by the Appellant, Noel Considine against the judgment of the then Costello J. delivered on the 18th day of November 1993 and the order made in pursuance thereof on the same date whereby the Appellants claim for -

"a declaration that the provisions of Section 310 of the Fisheries (Consolidation) Act, 1959which purport to empower the prosecutor to appeal against the acquittal of an accused person of a charge of an offence under the provisions of the said Act, disregard the requirements of natural and constitutional justice, are offensive to the provisions of the Constitution and in particular of Article 38 thereof, and are of no legal force and effect"

3

and other ancillary relief was dismissed.

Impugned Section
4

Section 310(i) of the Fisheries (Consolidation) Act, 1959provides that:-

"Where any proceedings in the District Court for an offence under any provision of this Act are dismissed, whether on the merits or without prejudice, the prosecutor may appeal against the order of dismissal to the judge of the Circuit Court within whose circuit the courthouse in which such order was made is situate."

5

Section 310(ii) of the said Act provides that:-

"Where by virtue of sub-section 1 of this Section a right of appeal against an order of the District Court in any proceedings under this Act lies to a judge of the Circuit Court, such judge on such appeal may vary, confirm or reverse such order, and the decision of such judge on such appeal shall be final and conclusive and not a appealable."

6

This section grants to the prosecutor of an offence, under any provision of the said Act, the right to appeal against an order of dismissal made by the District Court and to a judge of the Circuit Court the power to vary, confirm or reverse such order.

The Facts
7

The facts relevant to the issues raised in this appeal are as follows:-

8

1. The Plaintiff was prosecuted by the first-named Defendant by way of summons dated the 22nd day of January, 1991 charging him:-

9

That you did on the 23rd day of July, 1990 at the River Fergus in the townland of Carrownanelly, in the County of Clare in the Court area and district aforesaid did,

10

1. Make use of a net, the use of which in such waters for the purpose of taking fish is prohibited contrary to Section 96(1) of the Fisheries (Consolidation) Act, 1959as amended by Section 10 of the Fisheries Amendment Act, 1962and the Fisheries Act, 1980.

11

2. Have in your control one unlawfully captured salmon contrary to Section 183(2)(a) of the Fisheries (Consolidation) Act, 1959as amended by the Fisheries Act, 1980.

12

3. Use a boat as an aid to the commission of an offence under the provisions of the Fisheries Acts, 1959to 1987contrary to Section 285 (a) of the Fisheries (Consolidation) Act, 1959as inserted by Section 24 of the Fisheries (Amendment) Act, 1962and amended by the Fisheries Act, 1980.

13

4. Obstruct Assistant Inspector Gerard Healy a duly authorised Officer in the execution of his duties contrary to Section 301(7) of the Fisheries (Consolidation) Act, 1959as amended by the Fisheries Act, 1980.

14

2. Each of the above four charges relates to an offence triable summarily by the District Court.

15

3. The said summons came on for hearing before the learned District Court Judge sitting at the Courthouse, Ennis in the County of Clare on the 28th day of March, 1991. The Plaintiff appeared in answer to the said summons and after a full hearing, each of the charges against him was dismissed and the Plaintiff herein was acquitted on each of the said charges.

16

4. A notice of appeal dated the 3rd of April 1991 was served upon the Plaintiff notifying the Plaintiff that the first-named Respondent herein was appealing the said dismissal and acquittals to the Judge of the Circuit Court sitting at Ennis in the said County.

17

5. The said notice of appeal was served upon the Plaintiff in reliance upon and pursuant to the provisions of Section 310 of the Fisheries (Consolidation) Act, 1959.

18

6. By plenary summons dated the 5th day of June, 1991 the Plaintiff instituted these proceedings in which he claims a declaration that the provisions of Section 310 of the Fisheries (Consolidation) Act, 1959are unconstitutional; he further claims a declaration that the notice of appeal against the order of the learned District Judge is a nullity; and certain other consequential reliefs.

19

7. The Defendants in these proceedings delivered a defence on the 31st day of March, 1993 denying that Section 310 is unconstitutional; that the Notice of appeal is a nullity; and denying that the Plaintiff is entitled to the alleged or any relief.

20

As appears from the judgment of the learned trial judge, Costello J. (as he then was) delivered on the 18th day of November 1993 the Appellant sought a declaration that the provisions of Section 310 of the Fisheries (Consolidation) Act, 1959 (hereinafter referred to as the Act) are unconstitutional on the grounds that:-

21

(i) the right of the citizen to liberty involves immunity from retrial following an acquittal;

22

(ii) that this right is enshrined in Article 38.1 of the Constitution which provides that:-

"No person shall be tried on a criminal charge save in due course of law";

23

(iii) the phrase "in due course of law"embraces the concept that the right of the citizen to liberty involves immunity from retrial following an acquittal;

24

(iv) an appeal against an acquittal, as permitted by Section 310 of the Act, would amount to a retrial contrary to the aforesaid concept, alleged to be enshrined in Article 38.1 of the Constitution, and

25

(v) Section 310 of the Act, which permits such appeal is invalid having regard to the provisions of Article 38.1 of the Constitution.

26

In the High Court, the Defendants (the Respondents herein) had relied on the provisions of Article 34.3.4 of the Constitution which provides that:

" The Courts of First Instance shall include Courts of local and limited jurisdiction with a right of appeal as determined by law" and submitted that

(i) the District Court and the circuit Court are courts of local and limited jurisdiction, established by law in pursuance of the provisions of the Constitution (see The Courts (Establishment and Constitution) Act 1961);

(ii) it was permissible under the terms of Article 34.3.4 of the Constitution for the Oireachtas to provide by law that the decisions of the District Court be subject to an appeal to the Circuit Court;

(iii) the Oireachtas in enacting the Act and, in particular Section 310 thereof, carried out a legislative act which was permitted and contemplated by Article 34.3.4 of the Constitution;

(iv) the provisions of the said Article 34.3.4 are not in any way qualified by the provisions of Section 38.1 of the Constitution, and

(v) the High Court was bound by the decision of the Supreme Court in The People .v. O"Shea (1982) I.R. 384(hereinafter referred to as the O"Shea case).

27

The question at issue in the O"Shea's case was

28

"Does an appeal lie at the suit of the prosecution direct to the Supreme Court against a verdict of not guilty reached by a jury in the Central Criminal Court?"

29

This question was answered in the affirmative by the majority of the Court, consisting of O"Higgins, C.J., Walsh J. and Hederman J., the other members of the Court, Finlay P. and Henchy J. dissenting.

30

The O"Shea case dealt with the provisions of Article 34.4.3 which provides that:-

"The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions...

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2 cases
  • The People (Director of Public Prosecutions) v J.C.
    • Ireland
    • Supreme Court
    • 15 April 2015
    ...to the Court of Appeal, enacted subsequent to the fact of this case). (See The People v. O'Shea [1982] I.R. 384 and Considine v. Shannon Regional Fisheries Trust [1997] 2 I.R. 404, at 422). Such legislation must, of course, conform with the Constitution as a whole and the principles of co......
  • Min for Justice v Sliwa
    • Ireland
    • High Court
    • 6 July 2011
    ...very properly has also drawn the Court's attention to certain remarks of Hamilton C.J. in Considine v Shannon Regional Fisheries Board [1997] 2 I.R 404 which, he acknowledges, are against him. 46 The Court does not propose to review all of the judgments opened to it in the course of this ju......

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