Southwestern Regional Fisheries Board v. O'Leary [1999] IEHC 167; [1999] 2 IR 577; [1999] 2 ILRM 368 (19th May, 1999)

JUDGMENT of Mrs Justice McGuinness delivered the 19th day of May 1999. 1. In these proceedings the Applicant seeks an Order of Certiorari by way of Judicial Review of the Order of the Respondent made on the 15th day of July, 1998 in Killarney Circuit Court, Co. Kerry, allowing the appeal of the Notice Party against his conviction in Kenmare District Court in the County of Kerry on the 1st day of May, 1998 that he did use a net for the capture of fish in the fresh water portion of a river contrary to Section 25 (1) of the Fisheries (Consolidation) Act, 1959 as amended, together with a declaration confirming the Order of the District Court convicting the Notice Party. 2. The Applicant is a statutory body established under the Fisheries Act, 1980 . As part of the Applicant's statutory duties it prosecuted the Notice Party Patrick Joseph Cremin for an offence alleged to have been committed by him on 15th August, 1997 at Kilbunow, in the District Court area of Kenmare in the Southwestern Fisheries region. He was alleged to have used the net for the capture of fish in the fresh water portion of the river Slaheny contrary to Section 95 (1) of the Fisheries (Consolidation) Act, 1959 as amended by Section of the Fisheries Act, 1980 . 3. The summons against the Notice Party was issued on 12th December, 1997 and the matter was heard before the District Court at Kenmare on 1st May, 1998. The Notice Party was convicted and a fine of £100 was imposed, together with costs of £260. The Notice Party appealed to the Circuit Court. 4. The appeal proceedings came before the Respondent His Honour Judge Sean O'Leary at Killarney Circuit Court on 15th July, 1998. The Applicant was represented by Mr Michael C. Larkin, Solicitor. It appears from the Affidavit of Mr Larkin and the exhibits thereto that evidence was given by Fishery Officers of the Applicant. One of them, Dan Breen, had climbed a tree overhanging the River Slaheny and had clearly observed the Notice Party, who arrived with a rod and landing net. The Notice Party came along the river and climbed onto the rocks near the channel. He left the rod on the ground and proceeded to extend the net and scoop along the channel for fish in an area where the fish get trapped between the rocks. Mr Breen called on the Notice Party to halt and the other Fishery Officers emerged from nearby bushes where they were hiding and together with Mr Breen confronted the Notice Party who denied that he was fishing illegally. 5. The Notice Party mounted a full defence on the facts at the hearing of the appeal before the learned Circuit Court Judge. 6. The Respondent then asked whether the Notice Party had in fact captured fish. On hearing that he had not, the Respondent held that on the wording of the section the Notice Party's actions would only become unlawful if and when he actually captured fish. Mr Larkin, Solicitor for the Applicant, expressed surprise at this finding. The Respondent is reported as replying "I have taken myself by surprise, I will allow the appeal on the basis of law. On the basis of facts, I would have arrived at a different decision." 7. The Applicant issued Judicial Review proceedings on 5th November, 1998 and leave to apply for Judicial Review was granted by this Court (Geoghegan J.) on 16th November, 1998. The learned Circuit Court Judge did not file a Statement of Opposition. On the 25th January, 1999 the County Registrar for Kerry, Mrs Louise McDonagh, wrote to the Solicitor for the Applicant as follows:- "I refer to your communication of 19th inst herein. Judge O'Leary has indicated that he does not intend to oppose the application and is happy to let the High Court deal with the matter as they deem fit." 8. The Notice Party filed a Statement of Opposition on 28th January, 1999 supporting the Respondent's interpretation of Section 95(1) of the statute, but took no other step to defend the proceedings and did not appear before this Court. The matter was heard by me on 20th April, 1999. 9. Counsel for the Applicant, Mr McMorrow, submitted to this Court that it was clear that the Respondent had found against the Notice Party on the facts. The Notice Party's appeal was successful solely on the Respondent's interpretation of the statute. Counsel for the Applicant pointed out that if the Respondent's interpretation of Section 95 (1) of the Fisheries (Consolidation) Act, 1959 (as amended) were to stand it would have extremely far-reaching effects. The phrase "use a net for the capture of fish" occurred in a similar or comparable context in a large number of sections of fishery statutes and in particular in Sections 90 to of the Fisheries (Consolidation) Act, 1959 . The same phrase occurred in at least 90 by-laws which were part of the statutory scheme for the control of fisheries. 10. It appears that despite diligent search by Counsel no Irish authority on the interpretation of the phrase "use a net for the capture of fish" can be traced. Mr McMorrow, however, opened two English authorities to the Court. In Moses -v- Raywood [1911] 2 KB 271 , a Case Stated by the Justices of the East Riding of Yorkshire, the Respondent, who was in a boat with another man in a river in a fishery district where salmon were usually caught, got out of the boat and walked near the edge of the river looking for salmon. A click net, in size and shape resembling a landing net, was in the boat for the purpose of being put into the water when a salmon was seen near the surface. The Respondent had no licence to use the net, and when interrupted by a water bailiff the net was dry, not having been put into the water. Upon an information charging the Respondent with having used the net for catching salmon without having a licence contrary to Section 36 of the Salmon Fishery Act, 1865, the Justices held that there was no evidence that the net was "used" for catching salmon and dismissed the information. On the Case Stated the Court of King's Bench held that, as the Respondent had begun to search for salmon and had the net with him ready for use, he was "using" the net for catching salmon within the meaning of the section, though he had not actually put the net into the water. 11. In a brief judgment Lord Alverstone C. J. stated:- "In my opinion, in as much as the net was in the boat ready for use, and as the Respondent admitted that he was there for the purpose of catching a salmon, the Justices ought not to have acquitted him merely because he had not actually put the net into the water. I understand that this is a net which is not kept in the water all the time, but is put into the water when a salmon is seen near the surface. The Justices decided the case upon the narrow ground that the net was not wet, thus showing that it had not been put into the water. Having regard to the Respondent's plea of guilty and to the fact that the net was in the boat with the Respondent, who was looking for salmon, the Justices ought to have convicted him." 12. Channell J., agreeing, said:- "The Respondent had begun the process of catching salmon by searching the river and he had in the boat with him a net wherewith to catch the salmon. In my opinion he was then 'using' the net for catching salmon within the meaning of Section 36 of the Salmon Fishery Act, 1865 and the fact that the net was not wet, thus showing that it had not been actually put into the water, was immaterial." 13. This case was followed in a later case of Alexander -v- Tonkin [1979] 1 WLR 629. That case dealt with an offence of fishing by the use of a purse seine net within a three mile limit off the Cornish coast where this type of fishing was prohibited. The facts established that the Defendant had been searching for fish inside the three mile limit but due to an accidental disabling of the net no fish had been caught. The Court, specifically following Moses -v- Raywood , held that the offence had been committed despite the fact that no fish had been caught. Fishing had in fact begun and an element of mens rea had therefore been proved against the Defendant. 14. In the instant case it is clear the learned Circuit Court Judge accepted the facts as proved by the evidence of the Fishery Officers. The Notice Party was attempting to fish illegally by means of a net contrary to Section 95(1) of the 1959 Act. He had the necessary mens rea for the offence. The only question which remained was whether, in order to complete the offence, the Notice Party would have to have actually caught one or more fish. 15. It seems to me that the English authorities, which were not, of course, opened to the Circuit Court Judge, are persuasive on this question. Even without these authorities I would interpret the phrase "use a net for the capture of fish" as meaning that the accused person had embarked on the action of fishing by means of a net in circumstances where that was forbidden by law. The action of fishing, with the obvious intent of catching fish, is sufficient, even if no fish have as yet been caught; this, it seems to me, would be the ordinary meaning of the words of the section and would also represent the intention of the legislature in enacting the statute. 16. I will therefore make the Order of Certiorari sought by the Applicant. As regards the second Order sought I think that it will be preferable to return the matter to the learned Circuit Court Judge to enable him to deal formally with his conclusions on the facts and to dispose of the appeal in accordance with those conclusions. © 1999 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII