The Gazette 1992

GAZETTE

SEPTEMBER

1992

whether the scheduled offence in question involved an attack on the maintenance of public peace and order, such as conviction in the Special Criminal Court for posses- sion of a sporting gun without a licence, and since the ultimate factor triggerings.34 was the venue of the trial, the section failed as far as practicable to protect the constitu- tional rights of the citizen and was, accord- ingly, impermissibly wide and indiscrimi- nate and not warranted by the objectives it was sought to secure; (4) the power of the government under s.34 to remit in whole or part the effects of a forfeiture did not save s.34 from its constitutional invalidity. Cowzer v Kirby and Director of Public Prosecutions High Court 11 February 1991 CRIMINAL LAW - PROCEDURE - INDICTABLE OF- FENCE - DEMANDING MONEY WITH MENACES - ACCUSED ELECTING FOR SUMMARY TRIAL - PROS- ECUTION AMENDING DATES OF ALLEGED OF- FENCES - PROSECUTION ALTERING CHARGES - DE- FENCE SEEKING COPY OF STATEMENT GROUND- ING ORIGINAL COMPLAINT - WHETHER COPY MUST BE FURNISHED IN ADVANCE OF TRIAL - CONSTITU- TION - TRIAL IN DUE COURSE OF LAW - Larceny Act 1916, ss.29, 30 - Criminal Procedure Act 1967, s.6 - Constitution, Articles 38.1, 40.3 The applicant had been charged with de- manding money with menaces on a par- ticular date, contrary to s.29 of the 1916 Act. The applicant was brought before the first respondent in the District Court and elected for summary trial, the first respond- ent indicating that he was prepared to accept jurisdiction. On the date set for trial, the applicant proposed to adduce alibi evidence to indicate that he could not have committed the offence on the date indi- cated in the charge. At the outset of the hearing, however, the prosecution applied to have the date in the charge amended and this was accepted by the first respondent and the trial was adjourned. The prosecu- tion also indicated that the s.29 charge was being abandoned and that a charge of demanding money with intent to steal, contrary to s.30 of the 1916 Act, would be brought instead. The applicant's solicitor then sought from the second respondent a copy of the statement from the complain- ant on which the original charges had been brought, but this was refused. The appli- cant then sought an order of prohibition preventing his prosecution and trial on the existing or any substituted charges unless all witness statements were furnished to him before the trial. HELD by Barr J grant- ing the application: (1) the charges against the applicant were not in any way trivial in nature, since he ran the risk of a prison sentence of up to 12 months, and the constitutional guarantees of fair procedures and of a trial in due course of law required that the appl icant be afforded every oppor- tunity to defend himself; and there was no prior authority indicating that in summary proceedings an accused is not in any cir- cumstances entitled to receive, prior to his trial, copies of written statements made by prosecution witnesses. Dicta in The State (Healy) v Donoghue [1976] IR 325 ap- plied. Clune v Director of Public Prosecu- tions [1981 ] ILRM17 and Kelly vO'Sullivan (High Court, 11 July 1990) (1991) 9ILT126 considered; (2) there was no logic in the proposition that merely because the appli-

cant elected for summary trial he should lose rights which he would have if he had elected for trial on indictment and would then have been served with a book of evidence under s.6 of the 1967 Act; and while the applicant was not entitled to receive a formal book of evidence, the Constitution required that he receive, atthe least, copies of the statements of all wit- nesses whose evidence is crucial to the prosecution case against him, particularly having regard to the change in the dates and in the charges themselves which the Director of Public Prosecutions had indi- cated; and he was accordingly entitled to the relief sought. Westman Holdings Ltd v McCormack and Ors Supreme Court 14 May 1991 INJUNCTION - INTERLOCUTORY - TRADE DISPUTE - INJUNCTION TO PROHIBIT PICKETING DISPUTE AS TO WHETHER NEW OWNER OF PREMISES WAS EMPLOYER OF WORKERS EMPLOYED BY PREVIOUS OWNERS OF PREMISES - WHETHER FAIR QUESTION TO BE TRIED AS TO ISSUE - BALANCE OF CONVEN- IENCE - European Communities (Safeguarding of Em- ployees' Rights on Transfer of Undertakings) Regula- tions 1980 - Industrial Relations Act 1990, ss.8, 11 The plaintiff company had purchased premises known as 'Judge Roy Beans' which were operated as a restaurant, licensed premises and night club. The defendants had been workers in the premises and had been employed by the former occupiers of the premises from whom the plaintiff com- pany had purchased it. The defendants' union representative claimed that the de- fendants' employment continued on the transfer of the business to the plaintiff, in accordance with the 1980 Regulations. The plaintiff company rejected this claim and the defendants subsequently began to picket the premises. The plaintiff obtained an interim injunction preventing picketing and an interlocutory injunction was subse- quently granted. On appeal by the defend- ants HELD by the Supreme Court (Finlay CJ, O'Flaherty and Egan JJ) dismissing the appeal: (1) there were fair and bona fide questions to be tried as to whether the defendants were employed by the plaintiff company under ss.8 and 11 of the 1990 Act and also whether they were entitled to the benefit of the 1980 Regulations; (2) once it is decided that fair questions arose, a court hearing an application for an interlocutory injunction should not express any view on the strength of the contending submissions concerning those questions but should pro- ceed to consider the balance of conven- ience. Campus Oil Ltd vMinister for Indus- try and Energy (No.2) [1983] IR 88 applied; (3) while the plaintiff's potential loss if refused an interlocutory injunction was primarily monetary, it was unlikely that it would receive adequate compensation if it was successful at the trial of the action, having regard to the inability of some of the defendants to pay damages and also to the potential immunity of suit of members of a trade union engaged in a trade dispute; whereas the plaintiff's undertaking as to damages if granted an injunction would be sufficient to compensate the defendants in the event that they were ultimately suc- cessful, even having regard to their argu- ment that their ability to picket at this stage of the proceedings constituted a great aid

to them in the negotiations with the plain- tiff; and having regard to a consideration of all the factors, the balance of convenience was in favour of granting the interlocutory injunction sought by the plaintiff. (Note: s.19 of the Industrial Relations Act 1990, when it comes into operation on 18 July 1992, will alter the rules in cases such as the above.] National Union of Journalists and Ors v Sisk and Ors Supreme Court 20 June 1991 LABOUR LAW - TRADE UNION - TRANSFER OF ENGAGEMENTS - ENGAGEMENTS TO BE TRANS- FERRED TO TRADE UNION NOT REGISTERED IN THE STATE - WHETHER REGISTRAR OF FRIENDLY SOCIE- TIES HAVING JURISDICTION TO CONSIDER TRANS- FER - Trade Union Act 1913, ss.1, 2 - Trade Union Act 1941 - Trade Union Act 1975, s.9-Constitution, Article 40.6.1.ii The first applicant was a trade union regis- tered as such under the relevant legislation of the United Kingdom. It also carried on negotiations in this State on behalf of over 2,300 members and had an Irish council which was responsible for the administra- tion of its members in the State. It HELD a negotiation licence issued by the Minister for Labour under the 1941 Act. The appli- cant had reached agreement with the Irish Print Union, a trade union registered in the State, for the transfer of engagements from that union to the applicant. It applied for the registration of that transfer of engage- ments with the first respondent, the Regis- trar of Friendly Societies, pursuant to the 1975 Act. The respondent considered that he had no jurisdiction to deal with the proposed transfer on the ground that the applicant Union was not registered in the State. On judicial review by the first appli- cant Keane J dismissed the claim (High Court, 31 July 1990) (1991) 9 ILT Digest 127. On appeal by the applicant HELD by the Supreme Court (Finlay CJ, Hederman, McCarthy, O'Flaherty and Egan JJ) allow- ing the appeal: (1) the term 'trade union' in s.2 of the 1913 Act was not defined by reference to the registration or certification of a trade union by the Registrar of Friendly Societies, but rather in relation to what a trade union is and what its principal ob- jects are, such objects being outlined in s.1 of the 1913 Act; and in this light, while the first applicant was not registered or certi- fied under s.2 of the 1913 Act, it was nonetheless a 'trade union' within s.2 of the 1913 Act; (2) aside from the interpreta- tion contended for s.9 of the 1975 Act, there was nothing in the 1975 Act to indi- cate that, for the purposes of a transfer of engagements, it was necessary that the union to which the transfer was to take place should necessarily be registered un- der the 1913 Act; nor did this interpretation involve the necessary conclusion that the 1975 Act had extraterritorial effect, since the purpose of the 1975 Act was simply to ensure that the transferee would be capa- ble of looking after the interests of the members of the union from whom the transfer took place; and in the instant case, the fact that the first applicant had a pres- ence in the State and HELD a negotiating licence under the 1941 Act indicated that it would be capable of looking after the interests of the IPU members; (3) s.9 of the 1975 Act did not, by express terms, limii

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