Melling v O Mathghamhna

JudgeÓ Dálaigh J.:-,Levery J,Kingsmill Moore J.:-
Judgment Date08 February 1961
Neutral Citation1930 WJSC-HC 748
CourtHigh Court
Date08 February 1961

1930 WJSC-HC 748

Melling v. O'Mathghamhna

Appeal by Plaintiff from judgment of High Court (McLoughlin J.)dismissing Plaintiff's claim that Customs Acts were unconstitutional -judgment by Lavery J. (C.J. and Naguire J. concurring) - DISMISS appeal- dissenting judgment by Kingsmill Moore J. ( Ó Dálaigh J.concurring).

Ó Dálaigh J.:-

I have had the advantage of reading the very full judgment which my colleague Mr. Justice Kingsmill Moore has prepared and I propose therefore to come directly to the two major questions which are posed for us by this appeal, viz. :-


1. Is each of the several summary proceedings now pending against the appellant in the District Court "a criminal charge" within Article 38(5) of the Constitution;


2. And if yes, is each such criminal charge a minor offence, or not, within the contemplation of section 2 of the same article.


I begin with some general observations. If our Constitution and the Constitution of Saorstat Eireann both have adopted the theory of the tripartite separation of the powers of government with express limitations on the powers alike of legislature and executive over the citizen, the reason is not unconnected with our previous experience under an alien government whose parliament was omnipotent and in whose executive lay wide reserves of prerogative power.


It is therefore not surprising that it was thought right to place certain rights beyond the reach of both the legislature and the executive, and among these is the right of trial by jury, for ordinary citizens (art. 38 (4)), in ordinary circumstances, (art. 38(3) and(4)(1)of all criminal charges which are not minor offences. The trial of minor offences by courts of summary jurisdiction is trial by a judge alone; and it is trial by a judge who, although like other judges, declared to be independent in the exercise of his judicial functions, does not under the Constitution enjoy, that is, is not entitled to enjoy, the protection of art.35(4) (1apos;0) of the Constitution, i.e. irremovability, save for stated misbehaviour or incapacity, and then only a resolution of both Houses of the Oireachtas. It is true that since 1946 (Courts of Justice (District Court) Act, 1946, section 20) District Justices do enjoy by statute this protection, but it is withdrawable. The alternative tribunal which the law allows the citizen in the case of a criminal charge which is not a minor offence is a jury, whose members are wholly independent of executive or legislative discipline or displeasure and who necessarily by their very numbers bring to the administration of justice the commoner tough.


The safeguard of trial by jury is against an improbable but not-to-be-overlooked future; and it is for this reason the Constitution enshrines it.


Before advancing to consider the provisions of the Dairy Produce (Prices Stabilization) Act, 1935, and the Acts of 1945 and 1956 which amended it, one must first examine the extent to which the Customs Consolidation Act, of 1876, (into which the provisions of the Acts of 1935, 1945, and 1956 were in turn written) and the Customs Consolidation (Amendment) Act, 1879, which amended the Act of 1876, were continued in forcepursuant to article 73 of the Constitution of Saorstat Eireann. Being laws in force in the Irish Free State at the date of the coming into force of the Irish Free State Constitution they were continued in full force and effect, but "subject to this Constitution and the extent to which they were not inconsistent therewith". The only relevant inconsistency test to be examined is that with regard to the powers of courts of summary jurisdiction contained in the preceding article, Art.72 of the Saorstat Eireann Constitution, viz. "no person shall be tried on any criminal charge without a jury save in the case of charges of minor offences tribble by law before a Court of Summary Jurisdiction ..." etc.


If section 186 of the Act of 1876 is dealing, as has been contended on behalf of the Attorney General and the Revenue Commissioners, with matters of civil debt or obligation and not with "criminal charges" then our enquiry is at an end. It is only if it be otherwise that it will be necessary to enquire if they are "minoroffences".


One of the chief characteristics of civil liability (as contrasted with criminal liability) is the obligation to make reparation and, in our timer, not to have to suffer imprisonment if unable to make such reparation. (See Enforcement of Court Orders Act, 1926, as amended). There are, of course, instances, such as that of defamation, when because of the circumstances of the injury the law allows the reparation to be by such a sum as will be not only to reparation but also be a mark of disapproval or punishment. Moreover, it need hardly be said that certainacts, such as assaults, may be the subject of both criminal as well as civil proceedings.


It is not however a feature of civil proceedings that the plaintiff can have the defendant detained in jail before the proceedings commence and keep him there unless he can obtain bail. Nor, may he obtain a warrant to enter and search the defendant's house or shop and seize goods and if obstructed break open any door and force or remove any impediment to such search, entry or seizure (see section 205, Customs Consolidation Act, 1876). Nor yet is it a feature of civil proceedings that a plaintiff can put the defendant in jail because he cannot pay the damages awarded.


The vocabulary of section 186 of the Act of 1876 is the vocabulary of the criminal law; preliminary detention in fail unless bail be found (s.197) and the right to enter, search and seize goods in a defendant's house or premises (s.284-5) are as yet unfamiliar features of civil litigation. In their intitiation, conclusion and consequences proceedings under section 186 have all the features of a criminal prosecution. Note that Parliament in inserting directions in the form of conviction (set out in Schedule C to the Act and directed by s.223 of the Act to be used) speaks unequivocally: (I quote) -

"Where the party has been convicted of an offence punishable by pecuniary penalty and imprisonment in default ofpayment"


Finally the mode of withdrawal of proceedings is the time-honouredformula employed by the Attorney General in criminal charges - polleprosequi (section 256). Well might Mr. Justice Murnaghan say, as he did in Gettins case ( (1945) I.R. 183) ".... the proceedings before the District Justice have all the marks of criminal procedure and are in no way distinguishable from criminal proceedings for which punishment is a penalty with imprisonment in default ofpayment".


Unless I am to hold that, as in some strange unreal "Kafka-esque" world, what is is not, I must come to the conclusion that the offences comprised in section 186 are "criminal charges".


Two reasons have been advanced for asking the Court to reject this conclusion. The first is that the offences contemplated, if brought by information in the High Court under section 218 of the Act of 1876 (as substituted by s.11 of the Act of 1879) would, it is said, be civil. Casey's case ( [1930] I.R. 163) has been called in aid of this argument. Casey's case is a case under the Income Tax Act. It is a case in which this Court took the view that the form of the proceedings largely determined the character of the proceedings. If anything, it is a case whose logic is against the respondent's contention. But the respondents call in aid the reasoning of the judgments in the two Northern Ireland cases, Sherry's case( [1935] I.R. 211) and Firman's Case ( [1944] I.R. 91) and they press upon the Court the absurdity of proceedings under section 186 being considered civil when taken in the High Court and criminal when taken before a court of summary jurisdiction. This is an impressive argument but its effect upon my mind is to say simply that the decision in Casey's case Should not be extendedn. It would, as it seemstome, be even greater absurdity to pronounce proceedings under s.186 to be civil in the face of every indicium of criminality.


The second reason put forward for asking the Court to say that an offence under s.186 is not a criminal offence is that it is not, as it is submitted, a criminal "charge" within article 72 of the Irish Free State Constitution and article 38 of the Constitution of Ireland. If there is a difference between criminal charge and criminal offence I do not discern it. What is committed is a criminal offence; when a person is tried in respect of a criminal offence he is tried on a criminal charge. One would not say no person shall be tried on a criminal offence without a jury. In fact, the offences under section 186 in this case have been presented as charges under s.186 and charged in the common form, "contrary to section 186 of the Customs Consolidation Act, 1876".


If there be some difference, which I do not discern, let it suffice to say that the Constitution is to be read not as dealing with words but rather with the substance of liberty. I begin therefore with this:that section 186 deals with criminal charges within the meaning of article 72 of the Irish Free State Constitution and that it authorises their summary trial, and punishment by a fine of either treble the duty paid value of the goods involved or £100 at the election of the Customs Commissioners, now the Revenue Commissioners. Sections 232 and 237 (as substituted by s.12 of the Act of 1879) added to this that in default of payment the Justice may for a first offence - and here we are concernedonly with first offences - commit the offender to prison for not less than six or more than nine months. The question then is are we here concerned with minor offences offences which are not minor.


In speaking of the offences comprised in section 186 it will be convenient to use the simple generic term...

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