In the Irish Courts
| Published date | 01 April 1974 |
| Date | 01 April 1974 |
| DOI | http://doi.org/10.1177/002201837403800206 |
| Subject Matter | Article |
In the Irish Courts
MALICIOUS
DAMAGE
Rexi
Irish
Mink
v. Dublin County Council
The
Criminal
Injury
Compensation Code in Ireland con-
tinues to afford a gloss upon the
nature
of
the
criminal offences
provided for in
the
Malicious
Damage
Act, 1861.
That
'Code',
by virtue of s.5 ( 1) of the Local Government
(Ireland)
Act, 1898,
provides
that
compensation
may
be
awarded
for
the
malicious
injury
of
"property
of any description, whether real or personal"
provided
that
the
malicious
act
done was a crime punishable on
indictment
under
the
Act
of 1861. Section 51 of
the
Act
of 1861
enacts
that
aperson shall be guilty of a misdemeanour if he mali-
ciously commits any damage or
injury
"to
or upon
any
real or
personal property whatsoever" for which no punishment
had
already been provided by
that
Act. In
Rexi
Irish
Mink
u. Dublin
County Council (1972,
I.R.
123),
the facts were
that
someone
broke into premises where mink were kept for breeding purposes
for the
fur
trade
and
released 340 of the animals. Some of
the
animals died
and
those which were recaptured were of no value
for breeding purposes since they could
not
be related to the
pedigree cards kept in each cage,
thus
depriving
the
owners of
the necessary knowledge of each animal's genetic background.
Upon
aclaim made for damages amounting to the value of the
animals as breeding mink less
the
value of the pelts of those
recaptured, the Supreme
Court
was required to determine the
question whether the mere release of the mink, without physical
damage
at
the time of
the
release, constituted damage within the
Acts of 1861
and
1898.
In
the
Supreme
Court,
O'Daly
C.J.
pointed
out
that
the
vital
question was whether the statutes require
that
there
must
be
physical damage to the property. Although proof of physical damage
seems to have been required
under
the earlier statutes, the (Irish)
Act of 1898 is drafted in sufficiently wide terms to allow direct
reference to the Malicious
Damage
Act, 1861 in cases such as
Rexi's case (supra): see per
Murnaghan
J. in Purcell's case (1939,
I.R.
115)-a
case in which the
High
Court
and
the Supreme
Court
were equally divided, thus leaving the original decision of the
Circuit Court judge standing. Is it, then, an indictable offence under
s.51 of
the
Malicious Damage Act, 1861 merely to release eels from
abreeding tank in a river (as in Purcell's case) or mink from breed-
157
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