I move amendment No. 50:
In page 59, subsection (1), to insert "or product" after "part" in line 3.
Section 76 deals with forfeitures, by order of the courts, of things used in the commission of offences relating to fauna and flora and their parts. This amendment is directly consequent on the amendments which have been made to sections 52, 53, 72 and 73 and is being moved in order to clarify that "parts" of fauna and flora extend to "products".
Section 74 dealt with the monetary penalties for offences generally under the Bill and section 75 provided for additional penalties, in the form of revocation of firearm certificates and hunting licences, for certain offences against the hunting and conservation provisions. Section 76 goes a step further and enables the court, on conviction of an offence, to order forfeiture of any specimen of fauna or flora to which the offence relates or any weapon or other thing used in the commission of the offence.
I am worried about enforcement of the section, particularly in the case of visiting sportsmen.
The courts will have discretion to order forfeiture of any flora or fauna which are the subject of the prosecution and of any weapons or other equipment used in the commission of the offence. In regard to visiting sportsmen, I presume the Deputy visualises that by the time the case would come before the court the sportsman might have left the country. The position would be that the flora or fauna or the equipment used would have been seized by the garda or authorised person who had detected the offence and it would be a matter for the court to exercise discretion as to forfeiture.
Would the Minister agree that it is a provision which, if enforced, would be more likely to be enforced against resident sportsmen than visitors?
I suppose there are more resident sportsmen than visiting ones, but the same law will apply to both.
Does the Minister seriously foresee a German returning for a court hearing?
I do not, but I can foresee him being represented at the hearing. The facts would be put to the district justice, and I can foresee the garda or authorised person being cross-examined, and the evidence thus elicited would enable the court to come to a decision to forfeit or not.
Initially the garda or authorised person could seize the equipment or the flora or fauna, but the sportsman would go away with his gun.
Not necessarily. The gun may be held pending the hearing. The Bill makes provision that the person who detects the offence may seize.
I would not be optimistic about the enforcement of the section.
The Deputy may take it that the presence of the visiting sportsman in court is not necessary in order to give jurisdiction to the court to order forfeiture.
Suppose that initially the officer did not seize the gun and the visiting sportsman took it with him?
I would foresee the detecting officer seizing and retaining the gun.
I hope so.
Subsection (2) states:
A court shall not order anything to be forfeited under this section if a person claiming to be the owner of or otherwise interested in it applies to be heard by the court, unless an opportunity has been given to him to show cause why the order should not be made.
It would appear that nothing would be forfeited if somebody claiming to be the owner applied for a right to be heard.
The subsection means that before anything is forfeited the owner shall have an opportunity to be heard. It does not mean he will be there and heard. The important word is "if":
A court shall not order anything to be forfeited under this section if a person claiming to be the owner of or otherwise interested in it applies to be heard by the court, unless an opportunity has been given to him——
It looks to me as if a person need only apply——
He must be heard but he need not be actually there.
Does the fact that he applies to be heard in court exonerate him?
No, I would respectfully disagree with the Deputy.
I imagine the Minister is right, but I cannot see the meaning of the subsection.
If the owner applies to be heard, before giving an adverse decision, the justice must hear him and, having heard him, he can decide what conditions, if any, to attach to his representations.
That must be contained in the last ambiguous part of the subsection.
I do not say it is ambiguous, but it is contained in the last two lines.
The first part of the subsection reads:
A court shall not order anything to be forfeited under this section if a person claiming to be the owner of or otherwise interested in it applies to be heard by the court, . . . .
The next word "unless" is important.
. . . unless an opportunity has been given to him to show cause why the order should not be made.
Suppose he did not get such an opportunity?
That would be convicting a man without hearing him.
In the earlier part of this proposed legislation we had strong objection to the fact that the onus was on the accused person to prove his innocence.
A fundamental part of our law is that an accused person must be heard, if he wants to be heard.
I think it covers the situation to say that if I, without permission, borrowed Deputy Brennan's gun, went out and shot something and was caught, Deputy Brennan has the right to come into court and say that he is innocent, that I took his gun without permission and had been caught committing an offence.
That is obviously what the section is aiming to do although no reference is made to a third party. If the person charged is the owner of the gun——
He might only be the custodian.
I can see somebody of the Deputy's profession earning quite a few guineas arguing over that.
I hope the Deputy has no objection to my profession making a few guineas now and again.
We would like the Deputy to be devoted whole-time to the legal profession.
Subsection (5) deals with money paid into the Exchequer. Why do these moneys not go to the Minister for Lands?
Sub-section (5) follows standard provisions.
Does the Minister not consider that the Minister for Lands should be involved in some way?
I do not think so. I could conceive arguments against that.
Would the Minister not consider that the money should come back to this area in some way?
No, I do not think it would be advisable that the Department bringing the prosecution should benefit financially.
It would be different if the money were given to a benevolent society.
As the authorised officers of the Minister's Department are bringing the action, would it be more appropriate that the proceeds from the sale of firearms be given to the Department of Finance?
I think it is better if we leave it as it is. The activities of the Department of Lands should be financed from the Vote for that Department, and not, even in part, from the proceeds of prosecutions. It could be argued that it might make officers too enthusiastic.
Are there penalties as well as forfeitures here?
Yes, in section 74.
Do those penalties apply in these cases?
