The King (Sheahan) v The Justices of County Cork

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 26 June 1906
• Court: King's Bench Division (Ireland)
• Date: 26 June 1906

The King (Sheahan)

and

The Justices of County Cork (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1907.

Justices — Summons — Conviction — Negativing exceptions — Using gaff to take fish except as auxiliary to angling, or for purpose of removing fish from a legal weir or box — 13 & 14 Vict, c. 88, s. 40 — County Officers and Courts (Ireland) Act, 1877 (40 & 41 Vict. c. 56), s. 78.

Held, that the conviction was good, although neither the summons nor the conviction negatived that the use was for a purpose excepted by the section.

Per Gibson, J.: The test to determine whether section 78 of 40 & 41 Vict. c. 56 applies so as to render it unnecessary in a summons to negative exceptions in a statute is, that where a statute makes an act an offence, subject to particular exceptions, &c., which, when applicable, make the primâ facie offence an innocent act, such exceptions need not be negatived. But where a statute makes an act, primâ facie innocent, an offence when done under certain conditions, words of exception may constitute the gist of the offence, and, in such case, must be negatived.

Certiorari.

The prosecutor was charged on summons, on the complaint of Thomas Drohan, before the Justices at Petty Sessions, the complaint as alleged in the summons being “that on the 2nd day of December, 1905, at Ballinamona, on the river Clyda, a fresh-water tributary of the river Blackwater, in No. 4, or Lismore fishery district, …. you the said defendant were found using a gaff for the purpose of taking salmon or other fish contrary to the 13 & 14 Vict. c. 88, s. 40.”

The Justices made an order of conviction in the following terms:— “Convicted and ordered to pay a penalty of £4, and for

costs the sum of 2s. 6d., to be paid within seven days, one-third of said penalty to be paid to the informants Edward Sweeney and Owen Sullivan, and two-thirds to the conservators of No. 4, or Lismore district; and in default of payment to be imprisoned in Cork male prison for two calendar months unless the said sums are sooner paid.”

The prosecutor obtained a conditional order for a writ of certiorari on the grounds that the order was bad, inasmuch as it did not negative the exceptions set out in the section under which it purported to have been made; and that the conviction did not disclose any offence within the meaning of the section under which it purported to have been made.

On the hearing before the Justices no objection had been made on behalf of the defendant in the summons to the manner in which the summons was framed. The defence relied on was an alibi.

Cause having been shown against the conditional order by Thomas Drohan, the complainant in the summons, the present application was to make the conditional order absolute notwithstanding cause.

The Hon. Cecil Atkinson (with him Linehan), for the prosecutor:—

The prosecution is brought under section 40 of 13 & 14 Vict. c. 88, which prohibits the use of a gaff except when “used solely as auxiliary to angling with rod and line or for the purpose of removing fish from any legal weir or box.” The words “except when …. used solely,” &c., though in form an exception, in reality are part of the offence. These words therefore do not constitute such an exception, exemption, &c., as is mentioned in section 78 of 40 & 41 Vict. c. 56; and the conviction is bad, since it does not negative that the gaff was used solely as auxiliary to angling or for the purpose of removing fish from a legal weir or box.

But even assuming that these words do constitute an exception or exemption within the meaning of section 78 of 40 & 41 Vict. c. 56, still the conviction is bad. A conviction on a penal statute must negative any exceptions in the clause creating the offence: Rex v. Mallinson (1); The King v. Jukes (2); Molloy's Justice of the Peace, pp. 233, 234. The 78th section of 40 & 41 Vict. c. 56 merely dispenses with the necessity of negativing exceptions, &c., in the information or complaint. It is still necessary that they should be negatived in the conviction.

[He also referred to The Queen v. Justices of Wexford (3); Smith v. Moody (4).]

Timothy Sullivan (with him Healy, K.C.), or Thomas Drohan, the complainant in the summons:—

The conviction is good. The offence is the using of a gaff for the taking of fish. The provision in brackets in the section— “except when … used solely,” &c.—is an exception within the meaning of section 78 of 40 & 41 Vict. c. 56. The words of that...