The Gazette 1989

i

GAZETTE

MAY 1989

reasonable doubt but that it was a statement voluntarily made. Walsh, J. in his concurring Judgment, again reiterated that the test was the effect that the question produced on the Prisoner, and not the intention or even the hopes of the interviewer. The effect of the question in this case was calculated to convey to the applicant that his family would be left undisturbed if he accepted responsibility. D P.P. -v- Hoey. Supreme Court Henchy, McCarthy, Walsh, JJ. (Griffin and Henderman J.J. concurring) 16 December [1987] I.R. 646. M I CHAEL STAINES CR I M I NAL PROCEDURE ACT 1967 Once an accused has bean sent forward for trial, ha is not entitled to seek depositions of any new prosecution witness, whose Statement of Evidence is not contained In the Book of Evidence. At the Preliminary Examination of the charges against him, the Accused had called, on deposition, all of the witnesses whose Statements were contained in the Book of Evidence. He was then sent forward to the Circuit Court for trial. Subsequently, he was served with a Notice of Additional Evidence, relating to evidence to be given by several additional witnesses, whose Statements had not been contained in the Book of Evidence. The Accused claimed in the course of the present proceedings that he should be entitled to call these additional witnesses on deposition. He also submitted that where the Prosecution is or ought to be aware that a certain person would be required to give evidence, failure to disclose the existence of that person to the Accused at the Preliminary Examination stage, is, in effect, a breach of the Criminal Procedure Act 1967, and denies the right of the accused to a meaningful Preliminary Examination. HELD by Barron J. that the obligation is on the Prosecution to ensure that there is a proper preliminary investigation of the charges. He continued "If a material witness, or material evidence, is not before the Court, it is a question of degree whether or not a real examination has taken place. Where the Prosecution acts consciously and deliberately to exclude some person or thing at that stage, this might invalidate a return for trial." However, in the present case, there was nothing to indicate such conscious or deliberate action. The preliminary investigation could not be re-opened. Accordingly, the Accused's contention failed. Gilligan -v- the D.P.P The High Court (per Barron J.) 17 November 1987, unreported. M I CHAEL STAINES NEGOTIABLE I NSTRUMENTS The giving of a cheque In discharge of a debt may be conditional upon the cheque being met. The Defendant sold shares in the P.M.PA. Insurance Company to the Plaintiff for £400,000.00. The Plaintiff paid for these shares by drawing a cheque for this sum on its own account and handing it to the Defendant, who endorsed it and handed it back to the Plaintiff in discharge of certain

monies owed by the Defendant to the Plaintiff. The Plaintiff, relying, inter alia, on Marreco -v- Richardson [1908] 2 K.B. 584 argued that as the cheque was not met (due to the intervention of the Registrar of Friendly Societies) the original indebtedness together with further interest was due. HELD: It is an exception to the general rule, that the giving of a cheque for a debt is payment conditional on the cheque being met, where the Drawer of the cheque and the Creditor are one and the same person and the cheque is drawn on the Drawers/Creditors own account. In this case the Defendant discharged his indebtedness by endorsing and handing back to the Plaintiff, the Plaintiff's own cheque which it was held was accepted as unconditional payment. In referring to the general role the Court referred to the cases of Griffiths and Owen 13 Mind W. 58 and Belshaw and Bush 11 C.B. 191. Private Motorists Provident Society Limited -v- Joseph Moore - High Court per (Murphy J.) - 2 October 1987. [1988] ILRM 526. LARRY BRENNAN ROAD TRAFFIC ACTS Me d i c al Bureau off Road Safety Certificate - Section 22 and Section 23(2) Road IVaffic (Amendment) Act, 1978 - Whether Certificate was issued in the prescribed form - Whether Certificate should state on its face that it was issued under Section 22 of the Act. The Respondent was arrested by the Appellant under Section 49(6) of the Road Traffic Act, 1961 and pursuant to the provisions of the Act he provided a blood specimen which was forwarded to the Medical Bureau of Road Safety for analysis. Subsequently, the Bureau issued a document which specified the concentration of alcohol in the specimen provided. This document purported to be a Certificate in the form prescribed by the Road Traffic (Amendment) Act, 1978 (Part III) Regulations, 1978. On foot of the document the Defendant was convicted under Section 49 of the Road Traffic Act in the District Court. Section 22(3) of the Road Traffic Act, 1961 provides, inter alia, that as soon as possible after they have determined the concentration of alcohol in the specimen in accordance with Sub-section 1 of the Act,: - " . . . . the Bureau shall forward to the Garda Station from which the specimen analysed was forwarded a completed Certificate in the form prescribed for the purpose of this section . . . . " Section 23(2) of the same Act provides as follows: - "A Certificate expressed to have been issued under Section 22 shall, until the contrary is shown, be sufficient evidence of the facts certified to in it . . . . " It was accepted in the District Court by the Defendant that the Certificate was in the form prescribed by the 1978 Regulations but it was submitted that it did not comply with the provisions of Section 23(2) of the Act in that it was not expressed to have been issued under Section 22 of the Act. It contained a heading in heavy print which read: -

Recent Irish Cases

Edited by Gary Byrne, Solicitor

EVIDENCE Section 2 9 Certificate from the Court of Criminal Appeal as to whether a Statement by an investigating Garda amounted to an improper inducement by threat, so as to Invalidate a Statement of Admission made immediately after- wards by the Applicant. The Applicant had been convicted in the Special Criminal Court of the possession of firearms and ammunition. The Court of Criminal Appeal refused his Appeal, but the Court gave a Certificate under Section 29 of the Courts of-Justice Act 1924, enabling him to appeal on one point to the Supreme Court. The firearms and ammunition had been found in a house in which the Applicant lived with his mother and other members of his family. He was not in the house when the property was found. Approximately one month later, he surrendered himself to Gardai in the presence of his Solicitor. He refused to discuss the matter of the property with the Gardai, despite intensive ques- tioning for approximately seven and a half hours. Then the investigating Officer asked the following questions: "Will I have to get some Member to go up to your family and find out from them if anybody at 78 Ross- more Avenue is going to take responsibility for the property in the house?" Immediately afterwards, the accused made a statement of admission. This was the only evidence against him. He was convicted in the Special Criminal Court. On appeal, the Court of Criminal Appeal found that this question of the Investigating Officer had induced the accused to make the statement of admis- sion. They held, however, that it did not amount to an improper inducement, and accordingly they upheld his conviction. The Supreme Court were unanimous in holding that the question of the Gardai Officer did amount to improper inducement by threat. Henchy J. reiterated the rule that the test of whether an inducement is an improper one is an objective one. It is no part of the test to consider the intention or the motive of the person making the statement. In the present case, it was obvious that the applicant's sudden confession was made essentially for the purpose of avoiding the proposed visit of a Garda to his family. The applicant himself had treated the question as a threat. McCarthy, J. in a concurring Judgment, HELD that the test is whether the in- criminating statement can be free from any

i