The Gazette 1958-61

Hambourg under contract November/ December, 1956, although the Suez Canal was blocked from November 2, 1956. There was a finding that the performance of the contract by shipping the goods on an alternative route via the Cape was not commercially or fundamentally different from its being performed by shipping the goods on a vessel routed via the Suez Canal. The Court of Appeal (Sellers, Ormerod and Harman JJ.) held, dismissing an appeal from Diplock J. and upholding the award of the board, that the contract had not been frustrated by the blocking of the Suez Canal. (D.C.) See also The Times, March 29, 1960. Murder—uncontrollable impulse—evidence of insanity. In Attorney-General for South Australia v. Brown (March 9, 1960) that respondent was convicted of murder, the sole defence being insanity within the second branch of the M'Naughten Rules. The Australian High Court allowed his appeal on the ground that evidence of an uncontrollable impulse must be put before the jury as evidence of such insanity. The Judicial Committee (Viscount Simonds, Lords Radcllffe, Tucker, Jenkins and Morris), allowing the Crown's appeal, held that the law did not recognise such an impulse as evidence of insanity and that, if the defence contended that it was, it was a matter for evidence. (D.C.) See also (1960) 2 W.L.R. 588. Secret report—admissibility. In re B. (An Infant) (March 24, 1960) Roxburgh J. dismissing an appeal by the proposed adopters of a boy aged five, against the refusal of Liverpool justices to make an adoption order in respsct of the boy, observed that it was monstrous that a secret report should be treated as evidence in a matter of this sort. In the present case, although the justices had come to the right conclusion in the event though for wrong reasons, a secret report was read out after the parents' evidence was closed. That report was not on oath and was not admissible evidence. (J. A. G.) See also The Times, March 25, 1960. Discovery—Crown privilege—entries in a detective's diary. In Auten v. Rayner (No. 2) (February 25, 1960), Glyn-Jones J. held (i) that a claim for Crown privilege in respect of entries in a detective's diary (which had been sealed by an order of the Home Secretary) was a claim made, not in respect of a class of documents, but in respect of each and every sealed entry, and that the court had no power to go behind the certificate of the Home Secretary ; (2) that such a claim for Crown privilege could be made in the face of the court, and that it was un- 93 a c.i.f.

A taxpayer declared £18 6s. interest on his Post Office Savings Bank account and was assessed to tax on that amount. Later the Crown discovered his true income from that source was £51 55. 9d. and raised a new first assessment of £14 55., and claimed a penalty of £20 plus three times the total tax which ought to have been assessed. Held, that the date at which any penalty incurred was to be ascertained, was the date when the offence was committed ; that on the true construction of s. 25 (3) (a) " the tax which he ought to be charged under this Act " meant the whole tax chargeable for the relevant year : "I.R.C. v. Hinchy (1960) 2 W.L.R. 448 ; 104 S.J. 188 ; (1960) i All E.R. 505, H.L. (reversing the decision of the Court of Appeal (1959) 6 C.L. 173. Practice Affidavits — admissibility — interlocutory proceedings. (R.S.C., Ord. 38, rr. 3, n.) An application for leave to take a ward of court out of the jurisdiction is not an interlocutory proceeding within Ord. 38, r. 3, and accord ingly hearsay evidence is not admissible. But the court has a complete discretion whether or not to strike such evidence out of an affidavit. A mother's application for leave to take a ward of court out of the jurisdiction contained (by reference to an exhibited statement) hearsay evidence. Held, that the hearsay evidence should not be struck out as this was not necessary to allow the application to be properly heard: Re J. (An Infant) (1960) i W.L.R. 253 ; 104 S.J. 232 ; (1960) i All E.R. 603, Cross J. Hearsay. (R.S.C., Ord. 38, rr. 3, n.) Proceedings in a divorce petition concerning access to the children of the marriage made after the divorce are not interlocutory proceedings within Ord. 38, /-. 3, and accordingly hearsay evidence is not admissible in the affidavits. On an application made some years after their divorce the father of the child of the dissolved marriage applied for the suspension of the mother's right of access. Two affidavits filed on the father's behalf consisted to a large extent of scandalous hearsay evidence and was held inadmissible under Ord. 38, r. 3, and in the circumstances the whole of the affidavits should be removed : Rossage v. Rossage (1960) i W.L.R. 249 ; 104 S.J. 231 ; (1960) i All E.R. 600, C.A. Contract—-frustration—prohibition of use of normal route. In Tsakiroglou & Co. v. Noblee Thorl (March 28, 1960) the board of appeal to the Incorporated Oil Seed Association held that sellers were in default in failing to ship groundnuts from Sudan to