The Gazette 1991

GAZETTE

JANUARY/FEBRUARY 1991

OFFENCE COMMITTED -WHETHER RELEVANT TO PENALTY IMPOSED - DISMISSAL FROM FORCE - Garda Siochana (Discipline) Regulations 1971, Reg. 6. The applicant had been a member of the Garda Siochana for 14 years when he was involved in an incident in a public house in the rural locality in which he was stationed. It was alleged, inter alia, that he made lewd remarks to an acquaintance in relation to his (the applicant's) wife; and that when the licensee of the premises called for the applicant's wife to leave the premises at closing time the applicant failed to assist his wife to leave the premises. The applicant was charged with a number of disciplinary offences under Reg. 6 of the 1971 Regula- tions, being alleged to be conduct prejudicial to the Force, but after a disciplinary inquiry under the regulations and an appeal to an Appeal Board, he was ultimately only con- victed in relation to the lewd comments and the failure to assist his wife to leave the licensed premises. The Appeal Board re- commended dismissal from the Force and this was implemented by the Garda Com- missioner. On judicial review, seeking to have the convictions and dismissal set asida inter alia for unreasonableness Barron J granted the relief sought: [1989] ILRM 428; [1989] IR 440. On appeal by the respondent Com- missioner HELD by the Supreme Court (Finlay CJ, Griffin and McCarthy JJ) allowing the appeal: (1) the decision of the Appeal Board could not be said to have been un- reasonable in the sense of being contrary to reason or common sense and in that light it should not be quashed; (2) like con- siderations applied to the penalty chosen by the Appeal Board under the 1971 Regulations, and the courts should be reluctant to interfere with a matter peculiarly appropriate for determination by the Gardaf themselves under the Regulations; and in those circumstances the penalty imposed should not be quashed. Dicta in The State (Keegan) -v- Stardust Victims Compensation Tribunal [1987] ILRM 202; [1986] IR 642 applied. TAYLOR -v- SMYTH, KAPE INVEST- MENTS LTD AND ORS SUPREME COURT 6 JULY 1990 CONTRACT - REPUDIATION - DELAY IN COMPLETION OF COMPROMISE OF ACTION - WHETHER UNREASONABLE DELAY - WHETHER JUSTIFYING RE- PUDIATION - WHETHER REPUDIATION CONSTITUTED BREACH OF CONTRACT - COMPANY - CONSPIRACY - WHETHER INDIVIDUAL HAVING CONTROL OVER COMPANY MAY ENTER INTO CONSPIRACY WITH COMPANY. The plaintiff entered into a compromise of an action, in which he agreed to sell his freehold interest in certain premises to the first defendant, or his nominee. The second defendant, which was controlled by the first defendant, had previously acquired the mortgage interest in the premises from a bank. Under the compromise entered into, the plaintiff agreed to complete the sale by July 1980, and that interest of 22% per annum would be payable if the first de- fendant by his default delayed the sale beyond that data The plaintiff also agreed to consent to the assignment to the second

which they knew to be occupied by the applicants. Before the expiration of the initial six hour period of detention under s.4 of the 1984 Act, the applicants made statements indicating their participation in the rQbbery of the deceased person. The Gardaf con- sulted the Director of Public Prosecutions who indicated that they should not be charged with murder at that stage. A further six hour period of detention of the applicants was ordered under s.4 of the 1984 Act. The investigating Gardaf then arranged for an identification parade at which the applicants were identified. A-further statement was made by one of the applicants during the second period of detention. Evidence was also given at the trial of statements from the applicants as to whether there had been a common design between them to murder the deceased or to rob him only. HELD by the Court of Criminal Appeal (Hederman, Egan and Johnson JJ) dismissing applica- tions for leave to appeal: (1) in order to justify a detention under s.4 of the 1984 Act, the member in charge of a Garda station must have an independent bona fide belief that the person who had arrived in custody is a person who should be detained by the member in charge for a period not exceeding six hours from the time of the arrest as a necessary part of the proper investigation of the offence for which the person was brought to the statioo; such independent opinion can be formed as a result of infor- mation given to the member in charge, either prior to the arrest or even when the arrested person is brought to the station; and the evidence in the instant case indicated that the member in charge had reasonable grounds for believing that the applicants' detention was necessary for the proper investigation of the offence of murder and was thus entitled to exercise the powers conferred on him by s.4 of the 1984 Act; (2) the Gardai had acted properly in contacting the Director of Public Prosecutions to seek advice as to whether they should charge the applicants with murder after they had made their statements admitting involvement in the robbery of the deceased; (3) the Gardai had acted correctly in deciding to hold an identification parade rather than charging the applicants immediately after they had made their statements, since the obtaining of statements was only part of an investi- gation of an offence, and the Gardai had been entitled to extend the period of detention of the applicants under s.4 of the 1984 Act for a further period of six hours for the purposes of facilitating the identi- fication parade; and while the courts must ensure strict compliance with the terms of s.4, there was full compliance with its terms in the instant case; (4) the trial judge was entitled to exercise his discretion to admit a second statement by one of the applicants on the evidence before him; (5) the trial judge had correctly directed the jury on the mental and physical elements required to establish a common design by both applicants to murder the deceased. STROKER -v- DOHERTY AND OR8 SUPREME COURT 26 JULY 1990 GARDA SIOCHANA - DISCIPLINE - CONDUCT PREJUDICIAL TO DISCIPLINE - MEMBER IN PUBLIC HOUSE - LEWD COMMENTS - FAILURE TO ASSIST WIFE TO LEAVE PUBLIC HOUSE AT CLOSING TIME -RURAL COMMUNITY - WHETHER RELEVANT TO WHETHER DISCIPLINARY

defendant of his leasehold interest in the premises (which was held by another company). The defendants also agreed to release all securities or guarantees held by them over the premises. The plaintiff sub- sequently consented to the assignment of his leasehold interest in the premises and the first defendant also paid a deposit on the free-hold of the premises. By December 1980, however, the sale had not been completed knd the first defendant purported to rescind the agreement for sale This was held by the Supreme Court to be an ineffective rescission. The plaintiff then instituted proceedings sbeking damages for breach of contract and actionable conspiracy. The issues revolved, ultimately, around the actions of the first and second defendants. In the High Court, Lardner J held that, although the delay in completion had been unreasonable, this had not caused any damage or loss to the defendants; that the repudiation of the contract by them consti- tuted a breach of contract; that the com- bination of the first and second defendants to procure a breach of contract was an actionable conspiracy; and that damages together with the 22% interest as agreed should be awarded, with a reduction in proportion to the delay in proceeding attri- butable to the plaintiff: [1990] ILRM 377. On appeal by the first and second defendants HELD by the Supreme Court (Finlay CJ, Hederman and McCarthy JJ): dismissing the appeal: (1) having regard to the manner in which the first defendant had pleaded in his defence that no conspiracy had been entered into with the other defendants, it was not now open to the first defendant to deny that he was not capable of entering into a conspiracy with a company of which he was the effective controller; (2) such an argu- ment was, in any event, unsound in principle and not supported by the authorities which had discussed the nature of the limited company as being a distinct legal entity from its members. Salomon -v- Salomon & Co [1897] AC 22, R -v- McDonnell [1966] i QB 233 and Belmont Finance Corp Ltd -v- Wi/iiams Furniture Ltd [1979] 1 All ER 118 discussed; (3) the defendants would be liable in the tort of conspiracy if either the object was lawful or, even if its object was lawful, unlawful means are contemplated or used to attain the object, whether or not such means amount to an infringement of a constitutional right; and so it was no defence for the defendants to claim that they had engaged in the actions in the instant case to protect their own legitimate interests in the intoxicating liquor licence attaching to the premises in question. McGowan -v- Murphy (Supreme Court, 10 April 1967) and Meskell -v- CIE H073] IR 121 approved. Lonhro Ltd -v- Shell Petroleum Co Ltd (No. 2) [1982] AC 173 not followed; (4) the trial judge had correctly assessed the damages appropriate in the casa

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