Duggan v Corporation of Dublin
| Jurisdiction | Ireland |
| Judge | FINLAY C.J.,McCarthy J. |
| Judgment Date | 01 January 1991 |
| Neutral Citation | 1990 WJSC-SC 2598 |
| Docket Number | [S.C. No. 11 of 1989] |
| Court | Supreme Court |
| Date | 01 January 1991 |
1990 WJSC-SC 2598
THE SUPREME COURT
Finlay C.J.
McCarthy J.
O'Flaherty J.
BETWEEN
and
Citations:
MALICIOUS INJURIES ACT 1981 S18
MALICIOUS INJURIES ACT 1981 S6(1)
MALICIOUS INJURIES ACT 1981 S5(2)(c)
DWYER LTD V METROPOLITAN POLICE DISTRICT RECEIVER 1967 2 QB 970
FOSTERS OF CASTLEREAGH LTD V SECRETARY OF STATE 1976 NI 25
FIELD V RECEIVER OF METROPOLITAN POLICE 1907 2 KB 853
CRIMINAL INJURIES TO PROPERTY (COMPENSATION ) ACT 1971 S3(2) (NI)
MALICIOUS INJURIES ACT 1981 S5
MALICIOUS INJURIES ACT 1981 S6
MALICIOUS INJURIES (IRL) ACT 1848
MERCHANT SHIPPING ACT 1894 S515
Synopsis:
MALICIOUS INJURIES
Property
Damage - Perpetrators - Assembly - Manner - Tumultuously and riotously - Asportation of property in course of riot - Robbery from jewellery shop - Whether robbers were tumultuously assembled together - Malicious Injuries Act, 1981, s. 6 - Malicious Injuries (Amendment) Act, 1986, s. 4 - (11/89 - Supreme Court - 4/12/90) - [1991] 1 I.R. 275
|Duggan v. Corporation of Dublin|
STATUTORY INTERPRETATION
Ordinary meaning
Conjunction - Context - Previous section - Use of disjunctive "or" - Subsequent use of "and" in same context - Disjunctive interpretation not permissible - (11/89 - Supreme Court - 4/12/90) - [1991] 1 I.R. 275
|Duggan v. Corporation of Dublin|
WORDS AND PHRASES
"Riotously assembled together"
Shop - Robbery - Gang - Four men - Loss of goods - Claim to compensation - Whether robbers were tumultuously and riotously assembled together - (11/89 - Supreme Court - 4/12/90) 1991 1 IR 275
|Duggan v. Corporation of Dublin|
WORDS AND PHRASES
"Tumultuously ... assembled"
Shop - Robbery - Gang - Four men - Loss of goods - Claim to compensation - Whether robbers were tumultuously and riotously assembled together - (11/89 - Supreme Court - 4/12/90) 1991 1 IR 275
|Duggan v. Corporation of Dublin|
JUDGMENT delivered on the 4th day of December 1990by FINLAY C.J. [O'Flaherty age]
This is a case stated by Murphy CCJ, sitting as a Judge of the Dublin Circuit Court, pursuant to Section 18 of the Malicious Injuries Act 1981(the 1981 Act) raising a question of law for the opinion of the SupremeCourt.
The question of law arose during the course of a hearing by the learned trial Judge of an application brought under Section 6(1) of the Malicious Injuries Act 1981. The following facts relevant to the questions of law involved are found by the learned trial Judge in the case stated.
The Applicant is the owner of premises consisting of a jewellery shop situate in the City of Dublin and in the County Health District of theRespondents.
On the 30th July 1985 three men entered the shop for the purpose of robbing it, and a fourth person acting in concert with them remained outside in a car. The three men in the shop committed extensive damage inside the shop, struck the Applicant on the arm with a baseball bat, breaking his arm in three places, and then stole two trays of sixty rings each from a window display case, other rings and watches from a counter display.
The actions of the intruders caused considerablefear and apprehension to the Applicant and his son who were the only people in the shop, and these two persons were alarmed and fearful.
It was agreed that the damage done to the glass cases was in the sum of£750 and that the jewellery stolen was valued in the sum of£10,650.
It was agreed between the parties and found by the learned trial Judge that the actions of the intruders and the man outside in the car amounted to "riotous assembly" within the meaning of Section 6(1) of the 1981 Act. The learned trial Judge in the case stated then made the following further finding:
"10. On the above facts I found that the actions of the intruders and the man waiting outside in the car did not amount to"tumultuous assembly" within the meaning of Section 6(1) of the Malicious Injuries Act 1981. Further, I found that "riotous" and"tumultuous" assembly were mutually exclusive states with the result that it is impossible for an application to succeed in a claim brought under Section 6(1) of the Malicious Injuries Act 1981."
Having made this finding and statement of the law, the case stated seeks the opinion of this Court on the following questions.
2 "1. For a claim to succeed under Section 6(1) of the Malicious Injuries Act 1981, is it necessary for the Applicant to prove that the damage complained of was caused maliciously by three or more persons who were both tumultuously and riotously assembled?
2. On the facts as found by me and set out hereinbefore, can I make an award under Section 6 of the Malicious Injuries Act 1981in relation to the jewellery taken?"
Section 6(1) of the Act of 1981 reads as follows:
"Where three or more persons who are tumultuously and riotously assembled together, maliciously cause damage the aggregate amount of which exceeds £100 to a building or to property within the curtilege of a building, and in the course of the riot any property is unlawfully taken from the building, the person who suffers the loss of the property taken shall be entitled to obtain compensation from the Local Authority in accordance with this Act."
The learned Circuit Judge in stating the case directed that the Respondents should have carriage of the same and therefore they first made their submissions before this Court.
1. The word "tumultuously" contained in the subsection, it is submitted, involves a complete additional and different concept to the word "riotuously". It must from this, therefore, follow that in order to comply with the Section an applicant must establish an assembly of three or more persons which is both tumultuous and riotous.
Separately from this main submission, the Respondents submit that there is no conceivable warrant for construing the word "and" contained in the subsection, otherwise than in its ordinary meaning, as something which is conjunctive, and that to construe it as being disjunctive and being equivalent to the word "or" would be to alter the Section itself and, ineffect, to legislate, something which is outside the function of the Court. In this regard, particular reliance is placed on the terms of Section 5(2)(c) of the Act of 1981 which is a Section providing a right to obtain compensation for damage maliciously caused to property, which provides that damage shall be taken to be maliciously caused interalia if it is caused by (c) "unlawfully by three or more persons unlawfully, riotously or tumultuously assembled togetheror".
The provisions of this Section, it is submitted, show a clear scheme and intention on the part of the Legislature whereby in relation to malicious damage to property it is sufficient in the case of an unlawful assembly by three or more persons, to prove an element of unlawfulness or of riotousness or of tumultuousness, and any one of the three possible elements is sufficient to establish the claim.
It is argued, however, that in the case of compensation under the Malicious Injuries Code forproperty which has been stolen, a different and much more onerous burden of proof is laid upon the Applicant, consisting of an unlawful assembly which is both tumultuous and riotous.
The Court has been referred by Counsel for the Respondent to the decision of the Queen's Bench Division in England in Dwyer Ltd, v. The Metropolitan Police District Receiver, reported in 1967 2QB 970, and also to the decision in Fosters of Castlereagh Ltd, v. The Secretary of State, reported in 1976 NIR, p.25.
In his judgment in Dwyer v. The Metropolitan Police, Lyell J. adopted with approval the five elements of a riot laid down by the Divisional Court in Field v. The Receiver of MetropolitanPolice 1907 2KB. They are:
(1) There must be at least three persons involved.
(2) They must have assembled with a common purpose.
(3) The execution of the common purpose must have taken place.
(4) There must be "an intent on the part of the numberof persons to help one another by force if necessary against any person who might oppose them in the execution of the common purpose.
(5) There must be force or violence, not merely used in and about the common purpose, but displayed in such a manner as to alarm at least one person of reasonable firmness and courage.
In the same judgment the learned Judge attempted to consider, without defining, the concepts which would arise from the use of the word "tumultuous" or "tumultuously", and found them to be as follows:
1. That an assembly of persons should be of considerable size.
2. That it should be an assembly in which the persons taking part are indulging in agitated movement.
3. That it be an excited, emotionally aroused assembly.
4. That the excitement or emotion would be common to the members of the assembly.
5. Generally, though not necessarily, that the assembly be accompanied by noise.
He further added that the question as to whether an assembly of people can, on any particular facts, properly be said to be acting tumultuously was a question of degree.
The learned trial Judge then concluded that the words contained in the English Section, which was the provisions of the Riot (Damages) Act 1886, "riotously and tumultuously", must be construed as being conjunctive and that both factors must be satisfied before a right to claim for...
To continue reading
Request your trial
-
Kennedy v Tipperary County Council (North Riding)
...England in Field .v. Receiver of Metropolitan Police [1907] 2 KB 853, and as adopted by this Court in Duggan .v. Corporation of Dublin [1991] 1 IR 275 at 279. They 7 (1) There must be at least three persons involved. 8 (2) They must have assembled with a common purpose. 9 (3) The executio......
-
O'Faolain v Dublin County Council
...Corporation Citations: MALICIOUS INJURIES ACT 1981 S5(1)(c) MALICIOUS INJURIES (AMDT) ACT 1986 S2(1)(a)(i) DUGGAN V DUBLIN CORPORATION 1991 ILRM 330 FIELD V RECEIVER OF METROPOLITAN POLICE 1907 2 KB 853 SELLERS (RIBBLE SHIPPING CO LTD) V DONEGAL CO COUNCIL 1937 71 ILTR 43 MERCHANT SHIPPING ......