The Gazette 1967/71

CASES OF THE MONTH

other involving £84,000, laid down guidance for the conduct of lengthy trials. The trial at the Central Criminal Court had lasted 81 days, the second longest on record, and cost some £150,000. Mr. Justice Fenton Atkinson, giving the judg– ment, said the Court viewed with great concern the length of the proceedings, because whenever a trial assumed such proportions an inordinate burden was cast on all concerned and the risks of injustice were greatly increased. On account of the increasing complexity of tax laws months of investigation were necessary. In– vestigations involved examination of many docu– ments and protracted interviews concerning 'hem. In the present case the trial judge had had little opportunity to analyse the mass of documents and to decide whether it was necessary to hold a single trial as the prosecution insisted, or whether the counts could be severed. It was essential that judges should be given time to form an opinion on possible severability of counts, and hours spent on such consideration would save days of trial time. To assist judges to assess a case for such pur– poses, arrangements should be made before com– mittal for a transcript of the opening speech for the prosecution and of any submissions by the defence to be sent to the trial judge with the depositions and exhibits. Such a procedure in the present case would probably have meant some severance resulting in the saving of a court week at a cost of £750 a day. If a judge found the suggested procedure imposed an undue burden on the court and jurors, and was, therefore contrary to the interests of justice, he had a duty to ask the prosecution to recast their approach, even if it entailed an adjournment. Finally, counsel for the defence, while in no way detracting from his duty to his client, should, in the interests of justice, exercise a proper dis– cretion to avoid prolonging a case unnecessarily. Where submissions were made seeking to impugn long-established rules of law or procedure, there was no reason why they should not be made briefly with a view to reserving the position for a higher court. In spite of the protracted and complicated nature of the proceedings in this case the trial judge, Judge King-Hamilton, and jury had dis– charged their duty with meticulous care and there had been no miscarriage of justice. The appeals were therefore dismissed. (Regina v Sim- monds and Others, The Times, llth March 1967). substantive revenue offences

Repayment of Monies by Revenue Commissioners In a reserved judgment delivered in the Supreme Court on llth May 1967 the Revenue Commis– sioners were ordered to repay to Mr. H. A. Dolan a sum of £19,193 which he was overcharged for customs duty on goods imported into the country. The case dealt (inter alia) with the Section 25 of the Customs Consolidation Act, 1876. It was sub– mitted on behalf of the defendant that the sec– tion applied only to cases where the importer had made some error in his calculations in the course of submitting his goods for assessment of customs duty but the Supreme Court held that such a case was covered but did not consider that the section has such a restricted meaning. On deliver– ing of a judgment of the Court, Mr. Justice Walsh stated that the section : (1) Established a period of limitation; and (2) Envisaged a claim being made to monies overpaid; and (3) Imposed upon the commissioners the duty of adjudicating upon the claim. The Judge further stated that the statute is not to be construed as merely conferring a discretion to return the overpayments. The correct con– struction of the provision in question is that upon the fulfilment of the conditions laid down by the section, the customs authorities are not lawfully authorised to do otherwise than to return the overpayments. (Dolan v Neligan, Collector of Customs for the Port of the City of Dublin, 11/5/1967). Extension of Solicitor's Duty The Court of Appeal in England held that a solicitor who had inadequately warned a widow of 47 against the advisability of lending £4,000 to an American citizen with whom she had been infatuated and who had subsequently failed to repay her; was liable to her in damages for the loss which she had sustained. Lord Justice Danckwerts said that, although he accepted that the duty normally owed by a solici– tor to his client only extended to legal advice, he might also undertake to advise on business mat– ters and he then owed a duty to advise compe– tently, fully and not misleadingly. (Neushul v Mellish and Harkavy, The Times, 12th Mav 1967). 10 the Revenue Commissioners for the return of