Tangney v Kerry District Justice

• Jurisdiction: Ireland
• Judgment Date: 18 June 1928
• Date: 18 June 1928
• Court: Supreme Court (Irish Free State)

Supreme Court.

Tangney v. District Justice for Co. Kerry

MICHAEL TANGNEY

and

DISTRICT JUSTICE FOR THE COUNTY OF KERRY and in the MATTER of the COURTS OF JUSTICE ACT, 1924 (1)

Fisheries Acts - Offence - Conviction by District Justice - Omission to order forfeiture of fish - Record of conviction - District Court Rules - Approval by each House of the Oireachtas - Senate's disapproval of some of the Rules, validity of the remainder - Proof of Rules - Petty Sessions (Ir.) Act, 1851 (14 & 15 Vict. c. 93), sect. 21 - Fisheries Act, 1924 (No. 6 of 1924), sect. 2 - Courts of Justice Act, 1924 (No. 10 of 1924),sects. 21, 22, 78, 90, 91, 92, and 101 - Documentary Evidence Act, 1925 (No. 24 of 1925), sect. 4 - District Court Rules, Nos. 49, 50, 51, 55, and176.

Appeal from an order of the High Court (2), dated the 21st day of December, 1927, discharging a conditional order forcertiorari to quash the conviction of Michael Tangney at Killarney District Court on the 5th day of May, 1927, on the hearing of a summons or complaint that on the 15th day of January, 1927, at Danesfort, Killarney, the said Michael Tangney had in his possession 151 salmon, caught in a river during the annual close season in that river (3). From the decision of the High Court Michael Tangney appealed.

The following statement of the facts is taken from the judgment of the Chief Justice:—

"This is an appeal from an order of the High Court (Sullivan P., Mr. Justice Hanna, and Mr. Justice O'Byrne), allowing the cause shown and discharging a conditional order of certiorari obtained by the appellant to bring up and quash the conviction of the appellant by Mr. District Justice Gallagher on the 5th May, 1927, upon the hearing of a summons or complaint at the instance of one, Alfred Dodd, that, on the 15th day of January, 1927, at Danesfort, Killarney, the defendant did have in his possession 151 salmon, caught in a river during the close season in that river. The appellant, as it appears, hires motor cars, having his place of business in Cork. The complainant, Dodd, is an inspector of fisheries. The case for the prosecution was that Tangney had brought the salmon in a motor lorry to Danesfort, and that he was in possession of the salmon in the lorry, and was guilty of an offence under sub-sect. (2) of sect. 2 of the Fisheries Act, 1924. The District Justice convicted Tangney, and imposed a fine of £265, with £3 3s. costs.

On the 20th May, Mr. Moloney, Tangney's solicitor, wrote to the Clerk of the Court the following letter:—

'J. A. J. Brooks, Esq.,

District Court Clerk, Court House, Killarney.

Dear Mr. Brooks,

Dodd v. Patrick Lynch, sen.

Dodd v. Patrick Lynch, jun.

Dodd v. Michael Tangney.

On behalf of the defendant, Tangney, I will be much obliged if you will kindly furnish me at your earliest possible convenience with an exact copy of the order book or minute book of the District Justice, in each of the above cases, containing the entries of the conviction, order, and the note of evidence. I am entitled to ask for, and you are entitled to grant under Rule 51 of the District Court Rules, the above documents. On your letting me know the fees I shall send you cheque therefor.

Thanking you in anticipation,

Yours sincerely,

Gerald J. Moloney.'

The Clerk of the Court replied as follows:—

'Killarney,

May 21st, 1927.

Dear Mr. Moloney,

Dodd v. Tangney.

Same v. Lynch.

I am in receipt of your letter of the 20th inst. I do not see how Tangney is entitled to get copies of the order book in Lynch's case. He is not a party "interested." I have sent your letter to Mr. Gallagher. With regard to Tangney's own case, I have already sent you copies of the orders, and have sent your letter asking for a copy certified by the Justice to him and am awaiting his instructions. There was no note of the evidence, and I cannot therefore send it to you.

Yours sincerely,

J. A. J. Brooks.

G. J. Moloney, Esq.'

The following document, dated the 27th May, 1927, and signed by the District Justice, was furnished by the Clerk of the Court to Tangney's solicitor, as in compliance with his request. This document was the only evidence of the conviction and judgment of the District Court which Tangney had at the time of moving for the conditional order of certiorari:—

'SAORSTÁT saorstátÉIREANN éireann.

Form 1 a. Certificate of Order.

Petty Sessions (Ireland) Act, 1851 (14 & 15 Vict. Cap. 93).

Alfred Dodd of Killorglin, complainant; Michael Tangney of Innisfallen Hotel, 113 Oliver Plunkett Street, Cork, and Clerk's Bridge Terrace, Cork, Defendant. Court District of Killarney, County of Kerry.

I certify that, upon the hearing of a complaint that, on the 15th day of January, 1927, at Danesfort, Killarney, in said district and County, defendant did have in his possession 151 salmon, caught in a river during the annual close season in that river, an order was made on the 5th day of May, 1927, by District Justice present against Michael Tangney of Innisfallen Hotel, 113 Oliver Plunkett Street, Cork, and Clerk's Bridge Terrace, Cork, to the following effect, viz.:—

Defendant convicted and ordered to pay for fine £265 and for costs the sum of £3 3s., two-thirds of fine to be awarded to Killarney Fishery Conservators and one-third of fine to Chief Superintendent Clinton, Garda Síochána, who was the means of bringing the offender to justice, to be paid in eight days; in default, warrant of distress to issue, in default of distress, defendant to be imprisoned in Cork gaol for six months without hard labour unless said sums be sooner paid—said fine being £3 fine and £262 further fine in respect of 131 salmon.

(Signed) J. H. Gallagher, District Justice of said County, the 27th day of May, 1927.'

On the 16th June, 1927, the High Court granted Tangney a conditional order of certiorari to bring up and quash the conviction. The grounds set out in the order, some of which were afterwards abandoned, were as follows:—

'(a) That the order of the Court does not purport to convict of a minor offence, and fails accordingly to show jurisdiction on its face.

(b) That the alleged offence, the subject of the said conviction, was not a minor offence, and was cognisable only on trial by jury under the Constitution.

(c) That the order of the Court is ambiguous, and that it is void for uncertainty, and that it is bad upon its face, in particular:—

i. It fails to show distinctly of what offence the said Michael Tangney was convicted;

ii. It does not show under what law the said conviction was had, nor purport to record a conviction of an offence against any statutory enactment, or of an offence otherwise known to the law;

iii. It purports to record a conviction upon a complaint as to 151 salmon, and proceeds to inflict a penalty with regard to 131 salmon;

iv. It identifies no particular river;

v. It specifies no close season;

vi. It does not aver that any close season had been prescribed for any particular river or at all;

vii. It does not show the 15th day of January, 1927, to be a day falling within any prescribed close season for any particular river or at all.

(d) That the order of the Court is not drawn up in the manner prescribed by law, nor in a manner permitted by law, nor is it sufficient in substance and effect, nor does it clearly express the intention of the said Justice.

(e) That the adjudication and the appropriation therein of the fines are erroneous and ultra vires and contrary to law; and that the adjudication purports to impose a further fine in respect of 131 salmon of which the said Michael Tangney is not alleged to have been in possession under circumstances constituting the offence charged; and that whereas, if the alleged offence be an offence known to the law, it entails a prescribed penalty of forfeiture, no such penalty is imposed or recorded; and

(f) That the order of the court was made in disregard of the essentials of justice.'

Cause was shown against the conditional order on behalf of the complainant, who relied upon a document dated the 9th July, 1927, signed by the District Justice, produced to the Court as the order made by the District Justice. This document purported to be drawn up according to Form XX of the District Court Rules, and read as follows:—

'Be it remembered that on the fifth day of May, in the year of our Lord One thousand nine hundred and twenty-seven, before me, John H. Gallagher, the Justice for the said District, sitting for the Court Area aforesaid in the said District, a complaint was made that Michael Tangney, of Innisfallen Hotel, 113 Oliver Plunkett Street, Cork, and Clerk's Bridge Terrace, Cork, on the fifteenth day of January, One thousand nine hundred and twenty-seven, at Danesfort, in the said district and County, did have in his possession one hundred and fifty-one salmon, caught in a river during the annual close season in that river contrary to the Statute in such case made and provided, and being satisfied upon the evidence that the defendant, Michael Tangney, unlawfully had in his possession at Danesfort, Killarney, within the Killarney Fishery District, on the fifteenth day of January, One thousand nine hundred and twenty-seven, during the annual close season for the Killarney Fishery District, one hundred and thirty-one salmon, and that said salmon had been caught in a river during the annual close season for the river in which said salmon were caught, I did, therefore, adjudge that the said Michael Tangney was guilty of an offence, under sect. 2, sub-sect. 2, of the Fisheries Act, 1924, and I did further adjudge that the said Michael Tangney be convicted of said offence, namely, unlawfully having in his possession at Danesfort, Killarney, within the Killarney Fishery District, on the fifteenth day of January, One thousand nine hundred and twenty-seven, during the annual close season for the said Killarney Fishery District, one hundred and thirty-one...