Kirwan v The Commissioner of Police

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Sir Vincent Floissac, C.J.
• Judgment Date: 31 October 1994
• Neutral Citation: MS 1994 CA 1
• Docket Number: Mag. Crim. Appeal No. 6 of 1994
• Date: 31 October 1994

Court of Appeal

Floissac, C.J., Liverpool J.A.Singh, J.A.

Mag. Crim. Appeal No. 6 of 1994

Kirwan

and

The Commissioner of Police

Mr. K. Allen, Q.C. and Mr. H. Sergeant for the appellant.

Mrs. Vera Mendes for the respondent.

Tort - Nuisance — Appellant was charged with nuisance by noise contrary to subsection (1) of section 305 of the Penal Code, No. 12 of 1983 — The Court of Appeal found that the word nuisance signified an unjustifiable interference with the use of enjoyment by persons or the occupants of any premise of their private occupational rights — Court found that the conviction of the appellant was justified in law — Appeal dismissed.

Sir Vincent Floissac, C.J.

1 The appellant was charged with the offence of nuisance by noise contrary to subsection(c) of section 305 of the Penal Code of Montserrat, No. 12 of 1983 which reads as follows: -

“Any person who -

• (a) in or near any public place; or

• (B) in connection with any shop, business premises or other place used for any commercial purpose; or

• (c) in any other premises situated in or near any town or village, operating or permitting the operation of any amplifier, musical instrument, radio or electrical or mechanical device for producing, reproducing or amplifying sound, causes or permits to be made any noise which is so loud, continuous or repetitive as to cause a nuisance to persons in any public place or to the occupants of any premises in the neighbourhood, shall be guilty of an offence and liable on summary conviction to a fine of five hundred dollars.

2 On 1st June 1994, Acting Magistrate David T. Hallchurch (sitting in the Magistrate's Court of the Colony of Montserrat) convicted the appellant of the offence charged and reprimanded and discharged him. The conviction was based on the testimony of the occupants of a house in the village of Weekes in the said Colony. The occupants were a father (Mr. Hilario Del Pinno), a mother (Mrs Agripina Del Pinno) and a 34 year old son (Mr. Anthony Del Pinno). The Del Pinnos testified that on 16th September 1993 at about 6.30 a.m., they were awaken by loud and annoying music emanating from a house which is 10 yards away, from their home and which was occupied by the appellant and his grandmother.

3 The appellant appealed against his conviction on the grounds that the learned magistrate's decision is erroneous in point of law and is unreasonable and cannot be supported having regard to the evidence. The appeal was argued by reference to the principles, which govern public nuisances at common law.

4 The reality is that there are three types of nuisances - the common law private nuisance, the common law public nuisance and the statutory nuisance. A private nuisance is an unjustifiable interference with the use or enjoyment of a private proprietary right and is actionable as a tort. A public nuisance is an unjustifiable interference with the use or enjoyment of a public or common right relating to the reasonable physical comfort and convenience of human existence and is punishable as a crime. It is also actionable as a tort if a sizeable section of the public in tact suffered such interference and if the plaintiff suffered some particular and substantial damage over and above that sustained by other members of that section. A statutory nuisance is an act or omission designated or treated by statute as a nuisance although it may not possess all the essential ingredients of a private or public nuisance at common law. It is usually punishable as a statutory crime.

5 Nuisances are classified in Halsbury's Laws of England (Fourth Edition) Vol. 34 paragraphs 301 & 304 as follows:

“301…Nuisances may be broadly divided into (1) acts not warranted by law or omissions to discharge a legal duty, which obstruct or cause inconvenience or damage to the public in the exercise of rights common to all the Queen's subjects; (2) acts or omissions which have been designated or treated by statute as nuisances; and (3) acts or omissions generally...