The Gazette 1991

Sinnott v O'Connor Supreme Court 12 February 1991 CONTRACT — INDUCEMENT BfY FRAUD — WHETHER ESTABLISHED — WHETHER REPRESENTATION AS TO ACCURACY OF DRAFT COMPANY ACCOUNTS MADE — SUPREME COURT — WHETHER FINDINGS OF HIGH COURT JUSTIFIED ON THE EVI- DENCE The plainliff and defendant entered into an agree- ment in which it was acknowledged that the defen- dant was entitled tQ a 50% share in a company, in respect of which both parties had been prime movers. A meeting had taken place between the parties prior to them entering into the agreement. At the meeting, draft accounts for the company had been presented which indicated a profit of £91,000 for the year in question. The defendant was also told that, while he could not be made director of the company, he would be given all the rights and entitlements of a director. The defendant signed the agreement in question after this meeting. Audited accounts for the company were later prepared, and these indicated that, in fact, the company made a profit £7,000 for the year in question rather than the £91,000 indi- cated in the draft accounts presented at the meeting between the parties. The defendant had assumed, on the basis of the draft accounts, that the agreement entered into would entitle him to a substantial sum of money; but on the basis of the actual figures presented he was in deficit to the company to the extent of about £22,000. The audited accounts hade been approved at ameeting of the board of directors of the company. Due to an oversight, the defendant did not receive a copy of the audited accounts until after the boardmeeting and thus had no opportunity to seek to have the accounts rerected. The plaintiff instituted omceedings in which the defendant i ramlmclaimedrtMtlheJwreeinenientged imo had been indocwi btrartrauduleiM mJietcwiafon bvthe plaintiff as to the accuracy or the draft set of ac- counts. The oiaintiff denied that he had made anv representation as to the accuracy ot the draft ac- counts and that he had, on the contrary, indicated to the defendant that they were not accurate and would require some adjustment downwards. In the High Court, Murphy J dismissed the defendant's counterclaim, holding that since, on the evidence, no representation had been made by the plaintiff as to the accuracy of the accounts the question of fraud did not arise. He also held that, while it was unfor- tunate that the defendant had not been informed in lime of the date of the meeting at which the audited accounts were approved by the board of the com- pany, this was not relevant to the defendant's counter- claim. On appeal by the defendant HELD by the SupremeCourt (Finlay C), Hederman and O'Flaherty II) dismissing the appeal: (1) the Supreme Court was only entitled, on appeal from the High Court, to ask whether the trial judge was correct, on the facts as properly found by him, to come to the conclusion that he did; (2) in the instant case, not only was the trial judge entitled to come to the findings he did, but he could not reasonably have come to any other findings; and on the evidence he was constrained to acquit the plaintiff of any fraud or, indeed, of any form of malpractice which would call for reproach; (2) while it was unfortunate that the defendant was not in fact given the rights and privileges akin to a director in the context of receiving the audited accounts in good time, it was accepted that this was due to a genuine mistake and not to any deliberate action on the part of » # he plaintiff: and since there was

no suggestion that the accounts had not been prop- erly prepared, the trial judge had been correct in concluding that no representations that the defen- dant might have made could have been of any relevance.

evidence prejudicial to the applicant had emerged indicating that the complainant had a mild form of mental disability since counsel for the applicant had objected before a question on this point had been posed by counsel for the prosecution; (4) the ques- tion as to whether the charge to the jury in the instant case was adequate — despite the lack of an objec- tion in the court of trial to the failure of the trial judge to identify those items of evidence which were capable of amounting to corroboration — did not appear to raise a point of law, and certainly did not raise a point of law of exceptional public impor- tance which would merit a certificate of appeal to the Supreme Court pursuant to s.29 of the 1924 Act. CRIMINAL LAW — YOUNG PERSONS —CONVICTION—CERTIFICATE THAT YOUNG PERSONS DEPRAVED AND THAT THEY BE DETAINED IN PRISON — WHETHER POWER TO IMPRISON YOUNG PERSON INCONSISTENT WITH CONSTITUTION — CONSTITU- T I ON — PERSONAL RIGHTS - WHETHER EVIDENCE INDICATING DEPRAVED CHARACTER — WHETHER 'DEPRAVED' VAGUE - PRISON RULES — WHETHER BREACH OF RULES ENTITLES APPLICANT TO RELIEF - Constitution, Article 40.3 — Children Act 1908, ss.102, 131 — Rules for the Government of Prisons 1947, rr. 223, 224. The applicants were both 15 years of age, and were young persons' within s.131 of the 1908 Act. They were both convicted of assault and other offences, and had been sentenced in the District Court (Chil- dren's Court) to terms of imprisonment ranging from three to 12 months imprisonment. The Judge of the District Court before whom they appeared certified that the applicants, both of whom had a number of previous convictions, should serve their sentence: in a prison since they were, within the meaning of s.102 of the 1908 Act, 'of so depraved a character' that they were not fit to be detained in an institution for young offenders. The applicants sought an en- quiry pursuant to Article 40.4 of the Constitution, seeking various forms of relief, including a declara- tion that s.102 of the 1908 Act was inconsistent with the Constitution, that the word 'depraved' lacked clarity and that there was no evidence on which the applicants should be detained in a prison, and that their conditions of confinement were in breach of the 1947 Prison Rules. The applicants did not seek release from custody but that some form of secure accommodation be provided. HELD by Blayney I dismissing the application: (1) the power to order detention of a 'young person' in prison under s.102 of the 1908 Act- was not inconsistent with the applicants' personal rights under Article 40.3 of the Constitution since, on the contrary, it defends their rights by prohibiting the detention in prison of the young person except in certain specified circum- stances; and the requirement that the young person be 'depraved' was perfectly fair as the other young persons in a place of detention must be protected against anyone who is so depraved as not to be fit to be detained there; (2) the absence of any definition of 'depraved' in the 1908 Act, or of any judicial decision on its interpretation did not mean thai the G. and McD. v Governor of Mountjoy Prison High Court 7 March 1991

The People(D.P.P.) v ReidCourt ofCrimi- nal Appeal 20 February 1991 CRIMINAL LAW — EVIDENCE — COR- ROBORATION — SEXUAL OFFENCE — EVIDENCE OF COMPLAINANT — WARNING TO JURY — WHETHER ADEQUATE—WHETHERTRIALJUDGE FAILED TO IDENTIFY CORROBORA- TIVE EVIDENCE — WHETHER PREJU- DICIAL EVIDENCE AS TO MENTAL STATE OF COMPLAINANT ACTUALLY ADMITTED — APPLICATION FOR CERTIFICATE THAT POINT OF LAW OF EXCEPTIONAL PUBLIC IMPORTANCE INVOLVED — REFUSAL — Courts of Justice Act 1924, s.29 — Criminal Law (Rape) (Amendment) Act 1990 The applicant had been convicted of rape in the Circuit Criminal Court. In evidence he accepted that sexual intercourse had taken place with the com- plainant but alleged that it had been consensual. His application for leave to appeal to the Court of Criminal Appeal related primarily to the trial judge's warning to the jury as to the dangers of convicting on the uncorroborated evidence of the complainant. The trial judge indicated that the jury was entitled to convict without corroborative evidence but that it was dangerous to do so. The trial judge later referred to medical evidence which indicated that there was no bruisingon tbe complainant's bodv, but that the indications from ha- vagina wae that sexual inter- course had recently taken place and that certain torce was used. The trial iudge also referred to the evidence of the distressed condition of the com- plainant at the time. The trial judge did not deal specifically with the question as to what constituted corroborative evidence, having indicated to coun- sel that he would give the usual warning in relation to corroboration and would allow the jury to decide whether there was in fact corroboration. HELD by the Court of Criminal Appeal (O'Flaherty, Keane and Lavan |J) dismissing the application for leave to appeal: (1) there was no requirement in law that the warning to be given in cases such as the present should be in any particular form; and having regard to the course which the trial judge had indicated to counsel he was going to take in his charge, it was understandable that he did not deal in any detail with the matters which the jury might have treated as being corroborative of the complainant's ac- count. The People v Williams 11940] IR 195 and The People v Egan (L.) 11990] ILRM 780 discussed. Per curiam: while the Criminal Law (Rape) (Amend- ment) Act 1990 came into force after the trial in the instant case, trial judges may feel that a warning may still be required; and in general, it may be of assis- tance for the trial judge to draw the jury's attention to those aspects of the evidence which are capable of corroborating thecomplainant's version; (2) there was ample evidence in the instant case to corrobo- rate the complainant's version, but if the jury mistak- enly believed that there was no such corroboration then, in the light of the trial judge's warning, they could only have applied a standard which was unnecessarily favourable to the applicant; (3) no

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November 1991