The Gazette 1979

GAZETTE

SEPTEMBER 1979

of the minor nature of the offence; and he may do so by obtaining from the prosecution a general statement of the facts of the case. Held (per McMahon J.) that: (1) The purpose of Section 2(2) of the Criminal Justice Act, 1951, was to prevent a District Justice from depriving an accused of his right to trial by jury on a non-minor offence. If, however, a District Justice based his opinion on an inadequate statement of the facts and it appeared to him during the course of the trial that the offence was a non-minor one then clearly it was the duty of the Court to discontinue the trial (citing the decision of Henchy J. in The State (Holland) v. District Justice Eileen Kennedy, [1977] I.R. 193. (2) Following Conroy v. Attorney General A Ors. [1965] I.R. 411 that the major test which a District Justice should apply in relation to the question whether an offence was a minor offence was the appropriate punishment to be imposed for it. In the present case the District Justice imposed half the maximum sentence and clearly considered it to be a minor offence. The Prosecutors' affidavits disclosed no evidence which would compel the District Justice to come to the conclusion that the case was one fit to be tried on indictment only. Cause shown allowed. The State (McDonagh) v. District Justice OTiUadaigh and The State (Herlihy) v. District Justice OliUadaigh, — High Court (per McMahon, J.) — 9 March, 1979 — Unreported. LAW OF PROPERTY Married Women's Status Act 1957 — Lands purchased in the joint names of husband and wife declared under the Act to be owned by them in equal beneficial shares. The husband and wife were married in London in 1966. Two years later, the wife's mother, Mrs. A., purchased a house there and had it put in the joint names of her daughter and her daughter's husband. Mrs. A. gave evidence that her intention was that the house was to be the joint property of her daughter and her husband; and that she was aware that her daughter's husband did not have

property. Declaration that the farm was owned by the husband and the wife in equal beneficial shares. B. v. B. — High Court (per Finlay P.) — 25 July 1978 — Unreported. EVIDENCE — NULLITY It is not in accordance with the proper administration of Justice to cast aside the corroborated and un- questioned evidence of witnesses still less to impute collusion or peijury to them, when they are not given an opportunity of rebutting such an accusation. To do so is, in effect, to condemn them unheard and is con- trary to natural justice. In a petition for nullity before the High Court, the ground relied on was the non-consummation of the marriage because of the husband's impotence. At the hearing the wife gave full and detailed evidence to the effect that from the date of the marriage in April 1971, until she and the husband finally ceased to live to- gether 6 | years later, they never succeeded in having sexual inter- course because of the husband's in- capacity. Her evidence was corroborated by a general practitioner, who gave evidence that the husband had come to see him about his impotence early in 1976, and by a consultant physician to whom the husband was then referred and who, because he considered the complaint of impotence to be due to psychological factors, referred the husband to a consultant psychiatrist, who was not called as a witness, but whose medical reports were referred to. The same general practitioner, who had seen the wife in October 1975, gave evidence that he was of the opinion that she was then still a virgin. The husband, who was re- presented by Counsel, gave evidence admitting that, notwithstanding the best efforts of his wife and himself to act on the advice and guidance given to them by the consultant psychiatrist, consummation of the marriage had never been effected, and that the failure was due to his non-physical or psychological incapacity. It had never been suggested to the husband or to the wife during the hearing that they had acted collusively in the matter before the

any capital or assets, and that she did not want him to be dependent on his wife. The husband and wife lived in this London house until 1973 when they decided to come and reside in Ireland. The house was sold and, after discharging a jointly raised mortgage and an overdraft raised in his sole name by the husband, the net proceeds of sale came to £31,000. A farm of land in County Cork was jointly purchased for £22,500. Of this sum, £20,000 was provided out of the balance remaining from the London sale and £2,500 by Mrs. A. to her daughter. Unhappy differences subsequently arose. The wife left the farm in 1977 and returned to London. The husband continued to reside at the farm, having 'de facto' custody of the three children of the marriage. The wife, as Plaintiff, now claimed a declaration that she was entitled to the sole beneficial ownership of the farm of which she and her husband were registered as joint owners. On behalf of the wife, it was argued that in respect of the husband's half-share in the London property there was a resulting trust to Mrs. A. and that even if there was evidence of an intention to benefit the husband such intention must be construed to do so only for the duration of the marriage; the marriage having broken up, that intention ceased and the resulting trust was superimposed. Held (per Finlay P.) that following Fowkes v. Pascoe [1875] 10 Ch. App. 343, the evidence of Mrs. A. clearly rebutted a presumption of a resulting trust and the putting by Mrs. A. of a half share in the London property in the name of the husband was an irrevocable gift by her to her son-in-law. From the sale of the London property held in equal shares beneficially by the husband and the wife there was derived the substantial monies then invested in the farm. On the authority of Pettitt v. Pettltl [1969] 2 W.L.R. 966 there was no room on the evidence for any conclusion that on the break-up of the marriage different trusts were superimposed upon the original gift. No agreement could be implied at the time of the £2,500 gift from Mrs. A. to her daughter which should disturb the equality which was apparently the entire concept of the purchase of the farm in succession to the London