State (McEldowney) v Kelleher

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Walsh J.
• Judgment Date: 01 January 1985
• Neutral Citation: 1983 WJSC-SC 3055
• Docket Number: [1981 No. 445 SS]
• Date: 01 January 1985

1983 WJSC-SC 3055

THE SUPREME COURT

Walsh J.

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

59/1982

STATE (McELDOWNEY) v. KELLEHER

THE STATE (AT THE PROSECUTION OF MICHAELMcELDOWNEY

Appellant

and

DISTRICT JUSTICE HUMPHREY KELLEHER AND THE ATTORNEYGENERAL

Respondents

Subject Headings:

CONSTITUTION: statute; statute

PRACTICE: procedure

JUDICIAL REVIEW: certiorari

JUDGMENT OF THE COURT

1 delivered on the 26th day of July 1983by Walsh J.

2 The Street and House to House Collections Act 1962 regulates and controls the collection of money from the public by means of collections in the public streets or by means of collections in the course of house to house visits. It is immaterial whether the object of the collection is charitable or not charitable. Section 3 of the Act makes it a criminal offence to hold or be concerned in the holding of such collection save in accordance with a collection permit granted under the Act. Applications for collection permits are required to be made to the Chief Superintendent of the Garda Siochana for any locality in which it is proposed to hold such a collection. See section 5 of the Act. Section 9 provides that a Chief Superintendent shall not grant a collection permit if he is of opinion that the proceeds of the collection or any part thereof would be used for any one of a number of specified andobjectionablepurposes. One of these is that "the proceeds of the collection or any portion thereof would be for the benefit of an object which is unlawful or contrary to public morality or for the benefit of an organisation membership of which is unlawful": see section 9(b). Section 13 of the Act provides that whenever an application for a permit is refused by a Chief Superintendent the applicant for the permit may appeal to the District Court against the refusal and if on the hearing of the appeal the Court is satisfied having regard to all the circumstances of the case that the application should not have been refused, the Court may direct the Chief Superintendent to grant the collection permit in accordance with the application. The Court may also further direct the Chief Superintendent to attach to the permit such (if any) conditions authorised by the Act as shall appear to the Court to be desirable in the public interest. Section 13(4) provides asfollows:

"Without prejudice to the jurisdiction of the District Court to disallow on other grounds an appeal under this section, an appeal under this section shall be disallowed, if, on the hearing thereof, a member of the Garda Siochana not below the rank of Inspector states on oath that he has reasonable grounds for believing that the proceeds or any portion of the proceeds of the collection to which the collection permit the subject of such appeal relates will be used -"

3 a "(a) for the benefit of an object which is unlawful or contrary to public morality or for the benefit of an organisation membership of which is unlawful, or

4 (b) in such a manner as to encourage either directly or indirectly the commission of an unlawful act."

5 The question raised by this case is whether subsection (4) of section 13 is invalid having regard to the provisions of the Constitution because it constitutes an impermissible invasion of the judicial power in that it requires in the circumstances outlined that judicial proceedings within the exclusive competence of the courts are to be determined by the Oireachtas.

6 In the opinion of the Court that is the effect of subsection (4) and the Court is therefore of the opinion that the subsection is invalid having regard to the provisions of the Constitution.

7 The case comes to this Court by way of an appeal against the order and judgment of Mr Justice Costello of 5 February 1982 who took the view that the effect of the subsection was simply to limit the appellate jurisdiction of the District Court rather than an interference with the exercise of the jurisdiction. The learned High Court judge in a detailed review of the relevant cases indicatedquite clearly that if he was of opinion that the subsection in question did constitute an interference with the exercise of the judicial power rather than as he found a withdrawal of jurisdiction he would clearly also have held the subsection to be unconstitutional.

8 It therefore becomes necessary to examine precisely the relevant factors in the case. The facts of the case are not in dispute. The prosecutor who was chairman of a committee of the North Cork Branch of the National H-Block Armagh Committee applied on 23 March 1981 to the Chief Superintendent at Union Quay, Cork, on 12 March 1981. He made his application on the appropriate form which is Form SC1. The object of the collection as set out in the form was to "benefit expenses such as printing advertising and travelling" of the North Cork Committee of the organisation referred to. In reply he received a letter dated 18 March from Chief Superintendent P.G. Power in the following terms:

"Reference your application of 12th instant, in the above connection, I am to inform you that I do not propose to issue a collection permit and that your application is being refused under section 9(b) of the Street and House to House Collections Act1962."

9 These two documents appear to have been the onlycommunications between the prosecutor and the Chief Superintendent.

10 By notice of appeal dated 23 March 1981 the prosecutor applied to the District Court at Fermoy by way of appeal against the said refusal of the Chief Superintendent and requesting the Court to grant the collection permit sought.

11 At the hearing of the appeal the prosecutor gave evidence seeking to rebut the opinion already expressed by the Chief Superintendent to the effect that the proceeds of the collection would be used wholly or in part "(a) for the benefit of an object which was unlawful or contrary to public morality or for the benefit of an organisation membership of which is unlawful, or (b) in such a manner as to encourage either directly or indirectly the commission of an unlawful act."s Two other witnesses called on behalf of the prosecutor also gave similar evidence. The Chief Superintendent in question and another witness gave evidence in support of the opinion expressed in the Chief Superintendent's letter. The prosecutor had given evidence to the effect that he had no association with or membership of any unlawfulorganisation.

12 At this stage apparently someone must have drawn the attention of the District Justice to the provisions ofsubsection (4) because the District Justice then called the Chief Superintendent back to the witnessbox and asked him if he had reasonable grounds to believe that the proceeds of the collection would be used for an unlawful object or contrary to public morality or for the benefit of an unlawful organisation and the Chief Superintendent stated upon oath that he was of such opinion. The District Justice...