The Gazette 1991

JANUARY/FEBRUARY 1991

GAZETTE

designated area for the purposes of claiming investment allowances for machinery and plant pursuant to s.22 of the 1971 Act. The 1971 Act referred expressly to the-acheme of designated areas contained in the 1969 Act, which was intended to encourage industrial activity in certain areas by the provision, inter alia, of grants for investment in those areas designated by the Mineiter for Industry and Commerce. The taxpayer had purchased a crane, with a value of over £100,000, which he then let out on hire, and it was agreed that for 94% of the time it was used in a designated area. The inspector of taxes took the view, however, that exclusive use in a designated area was required to qualify for relief under s.22, and this was upheld by the Circuit Court and High Court: [1989] ILRM 688. On further appeal HELD by the Supreme Court (Finlay CJ, Hederman and O'Flaherty JJ) allowing the appeal: (1) in providing that the investment allowance was to be for plant and equipment 'provided for use' in a designated area, s.22 of the 1971 Act did not unambiguously indicate that it applied only where plant was used exclusively in a designated area, as had been argued by the Revenue; and in such •circumstances the Court was required to examine the overall purpose of the section; (2) by the use of a direct reference to the designated areas provisions in the 1969 Act, the 1971 Act had clearly and unequivocally identified its objective as intended to further and support the objectives of s.33 of the 1969 Act; and having regard to the evidence that the plant was used in a designated area for 94% of the time and that the taxpayer exclusively employed persons from designa- ted areas in connection with the use of the plant, the taxpayer was entitled to the allowance in question. Quaere: whether the High Court judge had been correct in ex- pressing the view that plant hired out by the taxpayer could fall within s.22, even if used exclusively in a designated area. THE PEOPLE (D.P.P.) -v- O'TOOLE AND HICKEY COURT OF CRIMINAL APPEAL 20 JULY 1990. CRIMINAL LAW - EVIDENCE - ARREST - DETENTION IN GARDA CUSTODY - WHETHER NECESSARY FOR THE PROPER INVESTIGATION OF OFFENCE - MEMBER IN CHARGE - WHETHER HAVING SUFFICIENT MATERIAL TO REACH CON- CLUSION AS TO NECESSITY OF DE- TENTION - DETAINED PERSON MAKING STATEMENT ADMITTING INVOLVEMENT IN CRIME - WHETHER PERSON SHOULD BE BROUGHT IMMEDIATELY BEFORE COURT - WHETHER EXTENSION ORDER FOR FURTHER DETENTION MAY BE MADE - WHETHER DETENTION FOR PURPOSE OF HOLDING IDENTIFICATION PARADE PERMISSIBLE - WHETHER DIRECTOR OF PUBLIC PROSECUTIONS MAY BE CON- SULTED AS TO WHETHER TO PREFER CHARGES - MURDER - COMMON DESIGN - WHETHER ESTABLISHED - Criminal Justice Act 1984, s.4. The applicants were convicted of murder in the Central Criminal Court. They had been arrested at common law on suspicion of murder and brought to a Garda station. On arrival, they were detained pursuant to the provisions of s.4 of the 1984 Act. The member in charge of the. station had been informed earlier that morning by the arresting Gardai that they intended to pro- ceed with search warrants to the houses

procedure for the Commissioner to proceed with a disciplinary hearing alleging corrupt or improper practices after essentially the same issues which would arise at such hearing had been fully heard and determined by a court of competent jurisdiction. Semble: a charge of improper practice could proceed under the 1971 Regulations. Par curiam: no view would be expressed as to whether the doctrine of res judicata applied in the instant case. Kelly -v- Ireland [1986] ILRM 318 referred to. COURT 10 JULY 1990 CRIMINAL LAW - PROCEDURE - DISTRICT COURT - REMAND IN CUSTODY - DEFENCE SOLICITOR RAISING LEGALITY OF ACCUSED'S DETENTION IN GARDA CUSTODY - DISTRICT JUSTICE DECLINING TO ENTER INTO QUESTION - WHETHER REMAND VALID - Criminal Procedure Act 1967 — Criminal Justice Act 1984, s.4 - Constitution, Article 40.4. The applicant was arrested in connection with larceny charges and was then detained in custody under s.4 of the 1984 Act, during which time he was alleged to have made certain statements to the Gardai relating to the offences. At the remand hearing in the District Court, held under the 1967 Act, his solicitor raised the legality of the applicant's detention in Garda custody under s.4 of the 1984 Act as a ground for refusing to remand the applicant in custody. The District Justice declined to enter into the question of the validity of the applicant's detention under the 1984 Act, and proceeded to remand him in custody. The applicant sought an inquiry under Article 40.4 of the Constitution into the legality of his detention on foot of the remand order of the District Court. In the High Court, Barrington J dismissed the application for release on the ground that it was irrelevant to the validity of the remand order whether the applicant was lawfully or unlawfully before the District Court: [1989] IR 286. On appeal by the applicant HELD by the Supreme Court (Finlay CJ, McCarthy and O'Flaherty JJ) dismissing the appeal it would be wholly inconsistent with the role of the High Court under Article 40.4 of the Constitution for the District Court to enter into an inquiry into the validity of the detention of a person appearing before the Court under the 1967 Act; and the District Justice in the instant case had taken the correct course of remanding the applicant in custody and thus facilitating any application under Article 40.4 which he might be advised to take. Par O'Flaherty J (concurring): issues of the kind raised in the instant case are more properly raised in the context of the admissibility of evidence. REVENUE - INCOME TAX - INVESTMENT ALLOWANCES - DESIGNATED AREA - PLANT AND EQUIPMENT - WHETHER EXCLUSIVE USE IN DESIGNATED AREA REQUIRED - PLANT HIRE - WHETHER CAPABLE OF ATTRACTING ANY ALLOW- ANCE - Industrial Development Act 1869, s.33 - Finance Act 1971, s.22. The taxpayer carried on business as a plant hire contractor in County Monaghan, a McNALLY -v- O MAOLDOMHNA I GH SUPREME COURT 29 JUNE 1990 KEAT I NG MOUNT JOY -v- GOVERNOR OF PR I SON SUPREME

incapacity of one person by reason of impotence; and that in developing the law of nullity under the general provisions of s.13 of the 1870 Act, the courts were not con- fined to advances in psychiatric medicine but were also entitled to take account of ad- vances in knowledge and understanding of human affairs in general. Dicta in S. -v- S. [1976-7] ILRM 156 and N.IKI -v- K. [1986] ILRM 75; [1985] IR 733 discussed and followed. R.SJ. -v- J.SJ. [1982] ILRM 263 and D. -v- C. [1984] ILRM 173 approved; (2) on the evidence adduced the only inference which the trial judge could arrive at was that the respondent in the instant case was, by virtue of his homosexual nature, incapable of maintaining a normal marital relationship and that therefore the marriage was a nullity. Fter curiam: since the issue whether the onus of proof required in nullity cases did not arise in the instant case, the Court would express no view as to whether it could in any parti- cular case be connected with the grounds on which a decree of nullity should be granted. McGRATH -v- GARDA COMMISSIONER SUPREME COURT 17 JULY 1990 GARDA SIOCHANA - DISCIPLINE - CON- DUCT PREJUDICIAL TO DISCIPLINE AND LIKELY TO BRING DISCREDIT TO FORCE - GARDA CHARGED AND ACQUITTED OF CERTAIN CRIMINAL CHARGES - WHETHER APPEARANCE AND ACQUITTAL IN CRIMINAL COURT SUFFICIENT TO JUSTIFY DISCIPLINARY CHARGE - CORRUPT OR IMPROPER PRACTICE - WHETHER GARDA COMMISSIONER ENTITLED TO REOPEN MATTERS DETER- MINED IN CRIMINAL COURT - FAIR PROCEDURES - Garda Siochana (Dis- cipline) Regulations 1971, Reg. 9. The applicant member of the Force had been charged with offences under the Larceny Act 1916 in connection with payments made to him in discharge of court orders imposing fines. The applicant admitted that he had not issued official receipts for any of the pay- ments, thus leaving the persons who had paid their fines to him liable to imprisonment. The applicant was returned for trial before the Circuit Criminal Court, but he was acquitted on all counts. Subsequent to his acquittal, he was served with notices under Reg. 9 of the 1971 Regulations stating that he might have been in breach of discipline as a result of being charged with criminal offences and of appearing before the District Court and the Circuit Criminal Court. He was then served with detailed forms setting out the alleged breaches of discipline. The first three breaches were of conduct prejudicial to the Force, the particulars being the appearances in the District Court and Circuit Criminal Court. The other three breaches alleged were of corrupt or improper practice, the particulars alleging failure to account for the sums of money received by him in the course of his duty which had been the subject matter of the criminal charges. The applicant applied for judicial review seeking to prohibit the holding of an inquiry into the alleged breaches of discipline In the High Court, Lynch J acceded to the application in part: [1990] ILRM 5; [1989] IR 241. On appeal by the Commissioner HELD by the Supreme Court (Finlay CJ, Griffin, Hederman, McCarthy and O'Flaherty JJ) dismissing the appeal: in the circumstances of the case it would amount to an unfair

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