State (Zwann)and Others v Attorney General

JurisdictionIreland
JudgeO'HIGGINS C.J.,GRIFFIN J.
Judgment Date23 July 1981
Neutral Citation1981 WJSC-SC 2305
CourtSupreme Court
Docket Number(320/80)
Date23 July 1981

1981 WJSC-SC 2305

THE SUPREME COURT

O'Higgins C.J.

Griffin J.

Kenny J.

(320/80)
STATE (ZWANN)AND OTHERS v. ATTORNEY GENERAL
IN THE MATTER OF THE HABEAS CORPUS (IRELAND) ACT
AND IN THE MATTER OF ARTICLE 40 OF THECONSTITUTION
AND IN THE MATTER OF THE FISHERIES (CONSOLIDATION) ACTS 1959to 1978
AND IN THE MATTER OF AN APPLICATION FORCERTIORARI
AND IN THE MATTER OF AN APPLICATION FORPROHIBITION
AND IN THE MATTER OF AN APPLICATION BY CORNELIS ZWANN , A. SCHAAP, W. SCHAAP, S. DUYN, A. SCHOUTEN, F. GROEN, F.VAN DER MEY, T. VAN DER PLAS, F. HOEK, C. KROMHOET, F. OWWENHANS, C.VELZENN, C. BEELEN, W. MOLCLE, L. TAAL, C. GUIT AND C.ZWANN
1

JUDGMENT delivered the 23rd day of July 1981by O'HIGGINS C.J.

2

This is an appeal brought by the Attorney General in which he calls into question the making by Mr. Justice Barrington, on the 9th December 1980, of absolute Orders of Certiorari and of Habeas Corpus relating to the detention at the Port of Killybegs of the fishery trawler "Jan Maria" and its Master and crew. Both the Orders of Certiorari and of Habeas Corpus were contained in an Order of the High Court dated the 9th December 1980. The relevant facts appear to be as follows.

3

On the 8th December 1980 the L. E. Aoife, under its Commander, Commander J. Deasy, a Sea Fisheries Protection Officer, arrested the "Jan Maria" in DonegalBay within territorial waters, on suspicion of fishing in contravention of the Fisheries (Consolidation) Act 1959. Following arrest and boarding the "Jan Maria" was brought to the Port of Killybegs where it was given in charge to Garda Daniel McKeever, another Sea Fisheries Protection Officer, and its master and crew were detained On the same day Garda McKeever applied, pursuant to the provisions of Section 233A of the Fisheries (Consolidatio: Act (inserted by Section 12 of the Fisheries (Amendment) Act 1978) for an Order authorising further detention for a period of 48 hours of the boat and its crew. It is necessary to set out the provisions of this Section which are as follows:

"233A. Where a sea fisheries protection officer has, in the exercise of the powers conferred on him by Section 233, detained a boat and the persons on board the boat at a port, the officer shall (unless he is proceeding under Section 234), as soon as may be, apply to a District Justice or, where no District Justice is immediately available, a Peace Commissioner, for an Order authorising the continued detention of the boat and those persons and the District Justice or Peace Commissioner may grant an Order authorising such detention for aperiod of 48 hours if he is satisfied that a contravention of a provision of Chapter II or III or Part XIII of the Principal Act by a person on board the boat is suspected by the sea fisheries protection officer; upon the expiration of the period of 48 hours -

(a) the boat shall be released unless an Order providing for its further detention has been made under Section 234 before the expiration of the said period of 48 hours, and

(b) each person on board the boat shall be released unless an Order providing for his further detention has been made under the said Section before the expiration of the said period."

4

As no District Justice was immediately available the application for the 48 hour Order was made to Mr. James O'Callaghan, a Peace Commissioner. Mr. O'Callaghan having heard evidence as to the arrest of the "Jan Maria" and the reasons for it, decided to grant the Order sought. He then filled in certain blank spaces in a form supplied to him and signed the completed form as his Order. The Order so signed and completed reads as follows:

" DISTRICT COURT AREA OF KILLYBEGS - DISTRICT NUMBER :
ORDER

complainant: The Attorney General."

5

Defendant: Cornelia Zwann.

6

On the 8th day of December 1980, at Killybegs in the said District before me James O'Callaghan, Peace Commissioner, for the time being assigned to the County of Donegal an application was made pursuant to Section 233(a) of the Fisheries Consolidation) Act, 1978, for an order the Sea Fishing Boad Jan Maria which is a Foreign Sea Fishing Boat of which the defendant is the Master, and all persons on board be detained at the Port of Killybegs by the Sea Fishery Protection Officer Garda Daniel McKeever and his assistants for a period of 48 hours from the time of the making of the said order, the said Garda Daniel McKeever having in the exercise of the powers conferred on him under Section 233 of the Fisheries (Consolidation) Act, 1959, as amended by Section II of the Fisheries (Amendment) Act, 1978, detained the said Jan Maria and all persons on board at the Port of Killybegs, in the County of Donegal, and the said Garda Daniel McKeever being satisfied that a contravention of the provisions of Chapters II and/ or III of Part XIII of the Fisheries (Consolidation) Act, 1959, by a person on board the said boat is suspect.

7

And I do Order that the said Foreign Sea Fishing. Boat Jan Maria of which the said Cornelis Zwann is the Master, and all persons on board be detained at the Port of Killybegs by the Sea Fisheries

8

Protection Officer Garda Daniel McKeever and his assistants, pursuant to Section 233(A) of the Fisheries (Consolidation) Act, 1959, as inserted by Section 12 of the Fisheries (Amendment) Act, 1978, for a period of 48 hours from 4.35 p.m. on the 8th day of December,1980.

9

Signed: James O'Callaghan

10

(PEACE COMMISSIONER).

11

Dated this 8th day of December, 1980."

12

On the 9th December 1980 an application was made in the High Court, on behalf of the Master and crew of the "Jan Maria", to Mr. Justice Barrington for a Conditional Order of Certiorari directed to the Peace Commissioner in relation to this Order and for a Conditional Order of Habeas Corpus in relation to the detention of the Master and crew. Other relief was also sought. The application was made on various grounds set out in the Affidavit of Mr. Patrick A. Dorrian, Solicitor, none of which in the events which have transpired, need now be considered. In the course of the hearing of the application exparte, the Peace Commissioner's Order of the previous day was produced to the Court. Mr. McEntee who moved the application on behalf of the Prosecutors, then submittedthat it was a precondition to the exercise of the jurisdiction of the Peace Commissioner under the Section that he should be satisfied that a contravention of the relevant provisions of the Fisheries (Consolidation) Act was suspected by the Sea Fisheries Protection Officer The Order, he submitted, was bad on its face in that it recited that the Sea Fisheries Protection Officer and not the Peace Commissioner was satisfied that such a contravention was suspected. Mr. Justice Barrington accepted this submission as being correct and was of the view that the Order made was bad on its face and in express conflict with the wording of the Section. Being of this view he decided, pursuant to the provisions of Order 84, r.9 of the Rules of the Superior Courts, to grant an absolute Order of Certiorari in the first instance quashing the Order made by the Peace Commissioner on the 9th December 1981. Mr. McEntee then submitted as the Peace Commissioner's Order under which the Prosecutors were being detained had been quashed an absolute Order of Habeas Corpus should also issue. Mr.Justice Barrington again agreed with this submission and made an absolute Order of Habeas Corpus pursuant to the provisions of Order 84, r.2 of the Rules of the Superior Courts. It appears from his Report to this Court that the learned High Court Judge in making this absolute Order of Habeas Corpus intended to do so pursuant to the provisions of the Habeas Corpus (Ireland) Act.

13

Unfortunately the written Order expressed the Order of Habeas Corpus as having issued pursuant to the provisions of Article 40 of theConstitution.

14

Following the making of these absolute Orders of Certiorari and Habeas Corpus there was some delay and confusion with regard to the...

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