O'Sullivan (The State) v Cork Circuit Court Judge and the Cork District Justice

• Jurisdiction: Ireland
• Judgment Date: 25 March 1931
• Date: 25 March 1931
• Court: High Court (Irish Free State)

The State (O'Sullivan and Others) v. The Circuit Court Judge of Cork.

THE STATE, at the Prosecution of MICHAEL O'SULLIVAN

and

THE CIRCUIT COURT JUDGE OF THE CORK CIRCUIT and the DISTRICT JUSTICE OF THE DISTRICT COURT AREA OF CORK, Defendants(1)

and

THE STATE, at the Prosecution of WILLIAM HARRIS

and

Same Defendants

and

THE STATE, at the Prosecution of CHRISTOPHER BRETT

and

Same District Justice

Defendant.

High Court.

Fisheries Acts - Offence - Ambiguous conviction - Omission in stating particulars of net used - Omission to order forfeiture of net - Net already ordered to be forfeited by previous conviction - Defect in summons - Defendant prejudiced - Quashing conviction - Bye-law - Whether kept in force by Art. 73 of Constitution - 13 & 14 Vict. c. 88, sect. 12 - 40 & 41Vict. c. 56, sect. 76 - No. 1 of 1922, Sch. I, Arts. 11, 66, 67, 71, 73.

A bye-law, dated 26th September, 1878, made under sect. 10 of the Fisheries (Ir.) Act, 1869, prohibited the use of any net for the capture of salmon or trout in the tidal waters of a certain district "having meshes of greater dimensions than 2¹/₂ inches from knot to knot, to be measured along the side of the square, or 10 inches to be measured all round each such mesh, such measurements being taken in the clear when the net is wet."

O'S. was convicted in the District Court that he did, within the tidal waters of the district specified in the above bye-law, "unlawfully use a net for the capture of salmon or trout having meshes of greater dimensions than 2¹/₂ inches from knot to knot or 10 inches in the round, contrary to the bye-law of 26th September, 1878." The conviction also ordered the forfeiture of the net, as provided by the bye-law for a breach of its provisions. The conviction was affirmed on appeal by the Circuit Court Judge.

Held by the High Court (Sullivan P. and O'Byrne J.; Hanna J. dissenting), on certiorari, that the conviction was bad, since to establish an offence against the bye-law it was necessary to prove that the dimensions of the mesh of the net were greater than either (a) 2¹/₂ inches from knot to knot, measured along the side of the square, or (b) 10 inches measured all round each mesh, and also that the mesh exceeded such measurements when taken in the clear when the net was wet, and the conviction did not state in respect of which of the two dimensions the mesh exceeded the specified size or that the measurements were taken in the clear when the net was wet, and therefore the conviction did not describe the offence in such a manner as to bring it clearly within the meaning of the bye-law.

Sect. 76 of the County Officers and Courts (Ir.) Act, 1877, provides that no conviction or order made by any Justice shall be held void, or shall be quashed by reason of any defect, omission, or variance in the summons upon which the conviction shall purport to have been made, provided that such defect, omission, or variance shall not have misled or prejudiced the defendant or have affected the merits of the case.

Held by Sullivan P. and O'Byrne J., Hanna J. dissenting, that the inaccurate description of the offence given in the summons (the wording of the summons being similar to that of the conviction) might have prejudiced the defendant and affected the merits of the case, and therefore this section did not apply.

R. (Athy Urban District Council) v. Kildare JJ., [1912] 2 I.R. 64, distinguished.

Held also, by Hanna J. and O'Byrne J., that the bye law was kept in force by virtue of Art. 73 of the Constitution, under which "the laws in force in the Irish Free State at the date of the coming into operation of this Constitution shall continue to be of full force and effect."

O'S. was also convicted at the same time on another summons for unlawfully using a net for the purpose of taking salmon or trout in the said tidal waters without being duly licensed, contrary to 13 & 14 Vict. c. 88, sect. 12. That section provides for such offence a pecuniary penalty, and also the forfeiture of the net used. The District Justice's conviction on this summons did not order the forfeiture of the net. It was the same net the forfeiture of which was ordered by the Justice in the other conviction. The conviction was affirmed by the Circuit Court Judge on appeal.

Held by Sullivan P. and O'Byrne J., Hanna J. dissenting, that the conviction was bad for not ordering the forfeiture of the net, notwithstanding the fact that its forfeiture was ordered by the other conviction.

Tangney v. District Justice for County Kerry, [1928] I.R. 358, applied.

Accordingly the convictions and the orders confirming them were quashed on certiorari.

Certiorari.

At the Cork District Court, on the 24th April, 1930, the prosecutor, Michael O'Sullivan, was convicted by the District Justice, on the complaint of James Lynch, the Secretary of the Cork Board of Fishery Conservators, of three offences under the Fisheries Acts. The three summonses on which the three convictions were made are set out in the judgment of Sullivan P., and the convictions followed the wording of the summons in each case. The three convictions were numbered Nos. 368, 369, and 370, and for convenience are so referred to in this report. No question arose as to the first conviction (No. 368).

As regards the second conviction (No. 369), under it the said Michael O'Sullivan was convicted that he did on the 2nd day of April, 1930, at or near Tivoli, in the River Lee, in the District Court Area of Cork, "unlawfully use a net for the purpose of taking salmon or trout in the tidal waters of the River Lee without being duly licensed under the provisions of 11 & 12 Vict. c. 92, or 13 & 14 Vict. c. 88, contrary to sect. 12 of 13 & 14 Vict. c. 88 (1)," and was thereupon ordered "to pay for fine the sum of six pounds and for costs the sum of two pounds and six shillings within seven clear days, in default of payment said sums to be levied by distress and sale of defendant's goods and seizure of his monies, and in default of such

distress, sale and seizure, defendant to be imprisoned in Cork Gaol for six weeks unless said sums be sooner paid."

Conviction No. 370 was in respect of a breach of the following bye-law, dated 26th September, 1878, made under 32 & 33 Vict. c. 92, sect. 10:—

"No. 5 or Cork District.

River Lee and rivers running into Cork Harbour.

Whereas the practice of using nets, having meshes of greater dimensions than two and one-half inches from knot to knot or ten inches in the round, in any tidal waters in that part of the district heretofore defined and known as No. 5, or 'The Cork District,' situated inside or to the northward of a straight line drawn in the direction of Templebreedy Church, from the lighthouse at Roche's Point on the east to the mainland on the west, all in the County of Cork, is in our opinion detrimental to the fisheries of the said district, and it seems to us, the Inspectors of the Irish Fisheries, to be expedient for the more effectual government, management, protection, and improvement of the salmon and trout fisheries in the said district, to prohibit such practice and to impose and prescribe conditions and restrictions as to the size of the meshes thereof. Now we, the said Inspectors, acting under the powers and authorities given to us, do make and ordain this bye-law by which it is prohibited, and it is hereby prohibited to use any net for the capture of salmon or trout in any part of the aforesaid tidal waters of said district having meshes of greater dimensions than two and one-half inches from knot to knot, to be measured along the side of the square, or ten inches to be measured all round each such mesh, such measurements being taken in the clear when the net is wet.

Each and every person offending against this bye-law shall forfeit and pay for each offence a sum of five pounds, and every net having meshes of greater dimensions than aforesaid and found in any of the places in which it is hereby prohibited to use such net shall be forfeited.

Jos. Hayes, Thos. F. Brady, Wm. Johnston, Inspectors of Irish Fisheries."

By the conviction (No. 370) for the alleged breach of this bye-law the said Michael O'Sullivan was convicted that he did"unlawfully in that part of the tidal waters inside or northwards of a straight line drawn in the direction of Templebreedy Church from the Lighthouse on Roche's Point on the East, to the mainland on the West, use a net for the capture of salmon or trout having meshes of greater dimensions than 2¹/₂ inches from knot to knot or 10 inches in the round, contrary to the bye-law of 26th September, 1878," and was thereupon "ordered to pay for fine the sum of five pounds, and for costs the sum of four shillings, within seven clear days; in default of payment said sums are to be levied by distress and sale of defendant's goods and seizure of his moneys; in default of such distress, sale, and seizure, defendant to be imprisoned in Cork Gaol for six weeks unless said sums be sooner paid, warrant to commit, if issued, to take effect at the expiration of No. 369, and it is further ordered that the said net be forfeited and destroyed."

The two other prosecutors, William Harris and Christopher Brett, were each upon the same day by the same Justice convicted of the same offence as that stated in conviction No. 370 of the said Michael O'Sullivan. These two convictions were similar in form to conviction No. 370, except that each omitted the last clause, which provided for the warrant to commit and the forfeiture...