The Gazette 1978

• f JANUARY/FEBRUARY 1978

GAZETTE

yet unreported) in A.G. v. Foran and Healy. This case is concerned with the circumstances in which the interests of jus t i ce and the requirements of a fair trial necessitate that a person charged be provided with legal assistance if he cannot provide such for himself. The Prosecutor pointed out that he was not legally represented at the hearing before the District Justice and, furthermore, he was given no opportunity of defending himself. Hamilton J. accepted his contentions and ordered his discharge. Held: (O'Higgins, C. J.) that the principles of A.G. v. Foran and Healy applied only to the trial of persons charged with criminal offences and not to the earlier or ancillary stages of criminal proceedings. The Court accepted the decision in the State v. O'Brien [ 1971] I.R. 42 that the procedure under S.207 constituted an exercise by a District Justice of his criminal jurisdiction but they held that this procedure merely amounted to an enquiry as to the mental health of die person charged and was "ancillary and preparatory". It did not amount to a trial. The District Justice did not order the transfer — he merely certified that the patient was suitable for transfer. He did x not impose any punishment. The decision in Foran and Healy did not apply and the conditional order of Habeas Corpus was discharged. The State (at the prosecution of Oliver O'Reilly) - Respondent (Prosecutor), and The Clinieal Director of the Central Mental Hospital - Appellant (Respondent) — Supreme Court (per O'Higgins CJ. with Kenny and Parke JJ.) — unreported — 7 July, 1977. LANDLORD AND TENANT Whether landlord's refusal to consent to assignment was reasonable» The Plaintiff was the lessee of premises at D'Olier Street, Dublin, for a term of 27 years from 1 January, 1972, with rent review clauses in the lease. The lease contained a covenant providing that "not without the landlord's (i.e. Defendant's) consent to use the premises for any purpose other than as a ladies and gents tailoring and outfitting business." Because of the collapse of the hatters business in

Held: (McWilliam J.) that it had not been established that the deceased acquired a domicile of choice in Scotland. It was also within his contemplation that he might return to Ireland when he retired from business or circumstances permitted. Even if the deceased did acquire a domicile of choice in Scotland the Court was satisfied that from the time of the purchase of Old Conagh Cottage die deceased had abandoned his Scottish domicile of choice if he had ever acquired one. The testamentary declaration was made at the instigation of his Scottish Solicitor, who thought that it would simplify the administration of the estate. It is clear from the evidence of the Solicitor and the correspondence that the deceased did not really mind which domicile was alleged. The Revenue Commissioners v Isabella Klrkhope Shaw and Lindsay Morton Talbot-Crosbie — The High Court — McWilliam J. — unreported — 29 April, 1977. HABEAS CORPUS Appeal — S.207 Mental Treatment Act 1945. An appeal against a decision of Hamilton J., that prosecutor should be discharged from the Central Mental Hospital as he was not detained in accordance with law, was allowed by Supreme Court. The prosecutor who was then detained in a District Mental Hospital was charged with an indictable offence. A District Justice sat in the hospital to hear the charge pursuant to the provisions of Section 207 of Mental Treatment Act 1945. Section 207 (1) provides that in such a case the District Justice shall certify that the detainee is "suitable for transfer" to the Central Mental Hospital provided evidence is given which, in the opinion of the District Justice, constitutes prima facie evidence that (e) the detainee has committed the offence; (b) that he would, if placed on trial, be unfit to plead. The District Justice so certified and the Prosecutor was eventually transferred to the Central Mental Hospital. Some time later the Prosecutor sought an order of Habeas Corpus. He relied on the principle set out in the decision (as

RICKNT IRISH CASES Summaries of Judgmentsprepared by John Buckley, Mary Finlay, Colum Gavan Duffy, Dalre Hogan, Michael O'Mahony and Michael Staines.

DOMICILE — ESTATE DUTY Deceased held never to have abandoned domicile of origin and even If he had would have acquired Irish domicile by choice on the facts In the ease. Edward Wynne Talbot Crosbie (the deceased) was bom in London in 1874 with an Irish domicile of origin because of his father's domicile. His family home was at Ardfert in County Kerry, but he was educated in Scotland and he entered the building and "factoring" trades there. On his father's death in 1913 he became entitled to the Ardfert property, subject to his mother's life interest, and he visited it regularly and managed it. It was burned down in 1922, and the deceased used the compensation obtained to establish a building business in Dublin, and he continued this until 1929 or 1930, when he also ceased his similar Scottish businesses. He did, however keep his secretary in his employment in Scotland, and she also helped in looking after the deceased's invalid sister, for whom deceased had bought a house in Largs in Scotland. The sister died in 1953, and a couple of years later deceased soid the Largs house and bought a house in Glasgow for his secretary and her mother. He retained a room in this house for an office for himself. He never bought a dwellinghouse for his own use in Scotland. He had married in 1927 and lived in his wife's house in Glasgow until 1935. They moved to Killiney in County Dublin in 1935 and separated about 10 years later. His wife returned to Scotland and lived there until her death. Deceased continued to live in the Killiney area and bought Old Conagh Cottage, Bray in 1954 and lived there until his death in 1967. In his Will he declared that "despite my residence in the Republic of Eire I have looked upon myself as a Scotsman and have retained and desire to retain my Scottish domicile acquired by my choice and which is now retained by me".