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GAZETTE
SEPTEMBER 1981
Water Pollution — Strict
Proof Required
Anglers, potential water polluters and lawyers will, alike,
be interested in the recent decision of the Honourable
Judge Timothy N. Desmond in a Circuit Appeal
concerning the alleged pollution of the River Feale by
creamery effluent
The case was that of
John Costello,
Complain-
ant/Appellant v.
North Kerry Milk Products Limited,
De-
fendant/Respondent and the following summary of the
proceedings and of the decision has been prepared by
Counsel for the Complainant.
The Complainant in his capacity as Chief Inspector of
the Shannon Regional Fisheries Board (formerly The
Limerick Board of Fishery Conservators), caused a
Summons to be issued against the Defendant on the 1st
day of November 1980, alleging that on the 2nd day of
May 1980, at Islandganniv North, Listowel, within the
District Court area of Listowel, District No. 13, the
Defendant permitted to fall into the waters of the River
Feale, deleterious matter, contrary to Section 171 (1) of
the Fisheries (Consolidation) Act, 1959; that on the same
date the Defendant emptied into the waters of the River
Feale, deleterious matter contrary to the said Section of
the said Act; and that on the same date, the Defendant
caused to fall into the waters of the said river, deleterious
matter contrary to the said Section of the said Act. The
matter came before the District Court in Listowel, when
the learned District Justice dismissed the Summons, from
which decision the Complainant appealed. The Appeal
came before the Honourable Judge Timothy N.
Desmond, Judge of the Circuit Court, at Listowel in the
South Western Circuit, County of Kerry, on the 9th day
of July 1981.
At the close of the case for the Complainant, Counsel
for the Defendant sought a Direction on the grounds,
inter alia, that in order to secure a conviction against the
Defendant, it was necessary for the Complainant to show
that deleterious matter had been permitted to fall into
and/or had been emptied into and/or had been caused to
fall into the
entire
of the River Feale, and that evidence
that such matter was emptied into a portion of the River,
was not sufficient to secure a conviction under the
Section, having regard to the definition of "deleterious
matter" and "waters" in Section 2(1) of the Act. The
expression "deleterious matter" is defined in the Act as
"any substance (including an explosive) which, on entry
or discharge into any waters, is liable to render the waters
poisonous or injurious to fish, spawning grounds or the
food of any fish". The word "waters" is defined in the said
Section of the Act as "any river, lake, watercourse,
estuary or any part of the sea".
The evidence of the Complainant was that deleterious
matter had fallen or been emptied into the river in
question through a certain pipe, but the evidence did not
show that the deleterious matter had either fallen or been
emptied into the entire of the waters of the river or that, if
deleterious matter had fallen or been emptied into the
river, it was liable to render the entire of the river
poisonous or injurious to fish, spawning grounds or the
food of any fish. It was submitted by Counsel for the
Defendant that to secure a conviction within the Section,
it was incumbent on the Complainant to prove that
deleterious matter had fallen into or been emptied into the
entire of the river, or that the entry or discharge of
deleterious matter into any part of the river was liable to
render the entire of the river poisonous or injurious to
fish, spawning grounds or the food of any fish. It was on
this point that the District Justice had dismissed the
original summons, while accepting that the Complainant
had proved that deleterious matter had entered the river at
a certain point.
It was submitted by Counsel for the Complainant that
such a submission and construction of the relevant
provisions of the Act would render a relevant portion of
the Act unworkable and that the greater must include the
lesser and that, accordingly, if deleterious matter within
the definition was shown to have fallen into or been
emptied into any portion of the river, an offence had been
committed.
It was further submitted by Counsel for the Defendant,
that any or any adequate proof that the pipes out of or
from which the alleged deleterious matter was alleged to
have fallen or been emptied into the river, was the
property of the Defendant, or came from their premises,
had not been adduced. Counsel for the Complainant
submitted that it was not necessary in order to secure a
conviction within the Section to show that the entire erf the
river had been rendered liable to injure or poison or
endanger fish, or that deleterious matter had fallen or
been permitted to enter the entire of the river.
It was held by the learned Circuit Court Judge that it
was not necessary under the Section to show that
deleterious matter had fallen into the entire of the river, or
that the entire of the river had been rendered liable to
poison or endanger fish or fish life and that it was
sufficient to secure a conviction under the Section to show
that deleterious matter within the meaning of the Act, had
fallen or been permitted to enter into any part of the river
at all and that any part of the river had been rendered
liable to injure or poison fish and that the phrases
"waters" and "deleterious matter" in the Act of 1959,
should be construed accordingly. He held, further, that no
or no adequate or sufficient evidence had been adduced
by the Complainant to show that the deleterious matter in
question had come from the Defendant's premises, and
that accordingly, the Summons should be dismissed.
The Judge made no Order as to costs. •
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