The Gazette 1992

GAZETTE

SEPTEMBER 1992

The People (D.D.P.) v Martin Court of Criminal Appeal 1 July 1991 CRIMINAL LAW— APPEAL — SENTENCE — EVIDENCE OF BAD REPUTATION —GROUNDS NOT ARGUED IN TRIAL COURT The applicant pleaded guilty to maliciously causing grievous bodily harm with intent to disfigure, contrary to s.18 of the Offences against the Person Act 1861. In the Circuit Court, evidence was given by the arresting Garda that certain people would not testify against the applicant because they were in fear of their lives, and he also stated the applicant was a violent person. The trial judge sentenced the applicant to seven years imprisonment, having regard to the evidence of the Garda and the applicant's previous convictions. On application for leave to ap- peal Held by the Court of Criminal Appeal (McCarthy, Barr and Lavan Jj) dismissing the application: (1) evidence of bad reputation should, as a general rule, be restricted and should not be allowed to found a view that the applicant had committed previous offences; but since the trial judge had not drawn such conclusions in the instant case the applica- tion would be dismissed; (2) although the arguments made on appeal had not been advanced in the trial court, this should not preclude the applicant from raising them on appeal. Dicta in The State (O'Connor) v O Caomhanaigh [1963] IR 112 applied. CRIMINAL LAW — ROAD TRAFFIC — DANGEROUS DRIVING — EVIDENCE AS TO PRE-ACCIDENT CONDI- TION OF VEHICLE—GARDAGIVING EVIDENCETHREE HOURS AFTER INCIDENT SUBJECT MATTER OF PROS- ECUTION—WHETHER ADMISSIBLE— Road Traffic Act 1961, s.53 — Road Traffic (Amendment) Act 1978, s.10 The defendant had been charged, inter alia, with the offence of driving a mechanically propelled vehicle when it was in a condition that was dangerous, contrary to s.53 of the 1961 Act, as inserted by s.10 of the 1978 Act. Evidence was given that the Cardai were called to the scene of a crash involving a minibus driven by the defendant. A Garda began giving evidence of his examination of the minibus after the accident. Objection was taken on the basis that the scene of the accident had not been fully preserved, that the chain of evidence had been broken and that the examination had taken place three hours after the accident. The prosecution stated that the evidence would relate solely to the pre-accident condition of the minibus. The District Court Judge declined to hear the evidence and dismissed the dangerous driv- ing charge. On case stated Held by Lavan J remitting the case to the District Court: having regard to the accusatorial nature of criminal proceedings, there was no sound basis in law for the trial court refusing to hearthe evidence being tendered by the prosecution in relation to the pre-accident condition of the minibus. Dicta in The State (O'Connor) vLarkin [1968] IR 255. B.L. v M.L. Supreme Court 5 December 1991 FAMILY — HUSBAND AND WIFE — PROPERTY — TRUST — WIFE CONTRIBUTING TO FAMILY FUND THROUGH REMAINING AT HOME — WHETHER GIV- ING RISE TO BENEFICIAL INTEREST IN HOME — CON- STITUTION — POSITION OF WIFE IN HOME — WHETHER GRANTING SUCH INTEREST WOULD AMOUNT TO UNWARRANTED DEVELOPMENT OF LAW — Constitution, Article 41.2 The parties had married in 1968, and had two Director of Public Prosecutions v Holmes High Court 19 December 1991

arrangements which employers and employ- ees could enter into where the application of s.4 of the 1982 Act resulted in a heavy burden of taxation on an individual employee; (3) the 1982 Act was not arbitrary in its application, but was predicted on the reasonable assump- tion that a car made available for private use was, in general, likely to be used for that purpose. Brennan v Attorney General [1984) ILRM 355 distinguished. Per Murphy J: it was not necessary to consider the validity of the benefit in kind tax taking account of the impact of inflation from the time it was first introduced in 1958 by reference to an annual income of £15,000, since s.4 of the 1982 Act stood on its own without reference to any earlier statutory provisions on the subject. Boyle v Lee and Goyns Supreme Court 12 December 1991 CONTRACT — SALE OF LAND — 'SUBJECT TO CON- TRACT' —WHETHER LETTER INCLUDING TERMS FOR SALE 'SUBJECT TO CONTRACT' CAPABLE OF CONSTI- TUTING NOTE OR MEMORANDUM OF AGREEMENT — WHETHER CONCLUDED ORAL AGREEMENT MADE — LAW REFORM— Statute of Frauds (Irl) 1695, s.2 The defendants were the owners of a house. The house was placed with an auctioneer, and the plaintiff made an offer of £90,000 for the house. The auctioneer obtained the oral agreement of the defendants to the figure offered by the plaintiff. The plaintiff inquired about a deposit, and the auctioneer stated that this would be a matter for the solicitors in the transaction to determine. The auctioneer wrote to the defendants' solicitor stating that the figure of £90,000 had been agreed with the plaintiff 'subject to contract' and further stating that the letter itself was 'for informa- tion purposes only and does not by itself constitute part of a binding contact.' The letter included reference to the property and that it was to be sold subject to existing tenancies. The defendants ultimately did not proceed with the transaction, and the plaintiff then brought proceedings for specific per- formance. In the High Court Barrington J held that there was a concluded oral agreement and that the letter written by the auctioneer constituted a sufficient note or memorandum for the purposes of the Statute of Frauds. On appeal Held by the Supreme Court (Finlay CJ, Hederman, McCarthy, O'Flaherty and Egan JJ) allowing the appeal: (1) (per Finlay CJ, Hederman, O'Flaherty and Egan JJ; McCarthy J dissenting) on the evidence, the issue of a deposit had not been agreed between the auctioneer and the plaintiff and the trial judge had erred in his finding that there was a concluded oral agreement; (2) the letter from the auctioneer to the defendants' solicitor, by its terms, could not be regarded as a note or memorandum for the purposes of the Statute of Frauds, and on that ground also the plain- tiffs action should be dismissed. Per Finlay CJ, Hederman and McCarthy JJ: the decisions of the Court in Kelly v Park Hall School Ltd. (1979] IR 34 and Casey v Irish Interconti- nental Bank Ltd 119791 IR 364 should not be followed. Per curiam: for the sake of legal certainty the phrase 'subject to contracf should be regarded as reflecti ng the absence of agree- ment between parties. Per O'Flaherty J: con- sideration should be given to the replacement of the Statute of Frauds with a legal require- ment that all contracts for the sale of the land be in writing.

under the 1990 Act. The examiner prepared a scheme of arrangement for the company and presented it to the Court. A creditor bank sought standing to object to the scheme at the hearing. The bank argued that if the scheme was adopted the repayment of its loan would be deferred. The bank also drew attention to evidence of fraud by a director of the com- pany prior to and after the commencement of the protection and argued that the scheme should not be approved. Held by Costello J approving the scheme: (1) the bank had stand- ing to appear under s.22 of the 1990 Act, having a contractual interest which would be impaired by the scheme of arrangement pro- posed by the examiner, since the scheme would involve deferment of the bank loan and it would therefore lose interest on that loan; (2) not without hesitation, the scheme should be allowed to proceed, subject to some of the amendments which had been suggested by the bank, since the company was probably capable of surviving under the scheme; and it was significant that the scheme had been approved by all the company's creditors and by Udaras na Gaeltachta; (3) the scheme would be subject to any proceedings the bank may be advised to take against any of the company's directors arising from any wrongdoing in relation to the company's relations with the bank; (4) the bank was entitled to its costs as an expense of the examination under s.29 of the 1990 Act. Browne and Ors v Attorney General High Court 6 February 1991 CONSTITUTION — INCOME TAX — BENEFIT IN KIND — SALES REPRESENTATIVES — CAR SUPPLIED BY EM- PLOYER AND AVAILABLE FOR PRIVATE USE — AVAIL- ABILITY FOR PRIVATE USE TAXED AS BENEFIT IN KIND — WHETHER IN BREACH OF RIGHT TO EARN LIVELI- HOOD —WHETHER ARBITRARY — Finance Act, 1982, s.4 — Constitution, Article 40.1, 40.3. The plaintiffs were all sales representatives. Their respective employers had supplied them with cars for their employment, and they were permitted to use the cars for private purposes. Where such private use occurred, the plaintiffs paid for the petrol involved. One of the plaintiffs did not use the car for any private purpose. Under s.4 of the 1982 Act, the availability of such cars for private use was treated as taxable income. Taking ac- count of various deductions allowed under s.4, the effect was that the three plaintiffs were taxed for the availability of the cars for private use. They claimed that s.4 of the 1982 Act constituted an unjust attack on their right to earn a livelihood or alternatively was arbi- trary in its effect. Held by Murphy j dismissing the claims: (1) in relation to taxation legisla- tion, the presumption of constitutionality was particularly strong and the plaintiffs faced an uphill battle to establish their case. Dicta in Madigan v Attorney General [1986] ILRM 136 applied; (2) the 1982 Act did not tax the car or its business use, nor even its private use; rather it taxed the availability for private use; and while the burden fell more heavily on some because of the low level (or nil level in the case of one of the plaintiffs) of private mileage actually used, it could not be argued that this in itself rendered the 1982 Act un- constitutional, because there could be no objection in principle to the imposition of taxation on the availability of an asset any more than on ownership or possession of assets; and in any event there were alternative

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