The Gazette 1992

GAZETTE

SEPTEMBER1992

Floinn [1957] IR 227 distinguished; The State (Roche) v Delap [1980] IR 170 ap- plied; (4) since the Circuit Court would be entitled to confirm, vary or reverse the decision of the District Court, the Circuit Court could deal with any problems of duplicity in the summons. Per Lavan J: the evidence on affidavit indicated that the applicant had been guilty of one of two offences provided for by s.6(4) of the 1984 Act, assuming that such evidence was es- tablished to the satisfaction of the respond- ent Judge of the District Court. Sweeney v Brophy and DPP High Court 20 December 1991 CRIMINAL LAW - TRIAL - IMPROPRIETIES OF TRIAL JUDGE DURING TRIAL - CONVICTION QUASHED ON JUDICIAL REVIEW - WHETHER RETRIAL COULD BE ORDERED - WHETHER DEFENDANT ENTITLED TO PLEAD AUTREFOIS ACQUIT The applicant had been convicted of as- sault before the respondent Judge of the District Court. The applicant sought certio- rari to quash the verdict on the ground that a number of improprieties had occurred during the hearing of the case. The respond- ents did not oppose the application for certiorari but sought to have the matter remitted to the District Court. HELD by Barron J refusing to remit the case: the improprieties which had occurred did not make the trial void ab initio, but the result- ing conviction was voidable so that certio- rari lay to quash it; and since the applicant had been put in peril in a trial which had initially been valid, he was entitled to plead autrefois acquit and it was thus not appro- priate to remit the case. Dicta in R.(Drohan) v Waterford Justices [1901] 2 IR 548 ap- plied; Singh v Ruane [1989] IR 610 distin- guished. Director of Public Prosecutions v Brennan High Court 20 December 1991 CRIMINAL LAW - TRIAL - TRIAL JUDGE DISMISSING CHARGE BEFORE ENTERING INTO MERITS - DECI- SION QUASHED ON JUDICIAL REVIEW - WHETHER MATTER TO BE REMITTED TO TRIAL COURT - WHETHER DEFENDANT ENTITLED TO PLEAD AUTREFOIS ACQUIT The respondent Judge of the District Court was the trial judge in a prosecution of two persons for malicious damage and bur- glary. The two defendants had been ar- rested under s.30 of the Offences against the State Act 1939 on suspicion of mali- cious damage. The defendants made con- fessions of their involvement in the mali- cious damage, and at about 4.30 p.m. on the date in question they were visited by their solicitor. The Gardai wished at this stage to bring them before a court, but the respondent was unavailable at the time. The defendants were, accordingly, released from their s.30 custody and immediately re- arrested at common law and were charged with malicious damage and burglary. They were detained overnight in Garda custody and brought before a court the following morning. The defendants elected for sum- mary trial and indicated that they would plead guilty. At the hearing of their case, their solicitor argued that their detention after 4.30 p.m. on the date in question was unlawful and that accordingly the charges should be dismissed. The respondent Judge acceded to this submission. On judicial

review by the Director HELD by Barron J quashing the respondent's decision and remitting the case to the District Court: (1) the respondent had acted improperly, and should have allowed the case to proceed and then dealt with any submissions as to unlawful custody in the course of the trial, and so his decision should be quashed; (2) the respondent's decision was a nullity, and since he never entered into an adjudication on the charges against the defendants it was appropriate to remit the case to the District Court to deal with the matter. R.(McGrath) v Clare Justices [1905] 2 IR 510 applied. Latham v Hibernian Insurance Co Ltd and Peter J Sheridan & Co Ltd High Court 22 March and 4 December 1991 INSURANCE - NON-DISCLOSURE OF MATERIAL IN- FORMATION - INSURED CONVICTED OF RECEIV- ING STOLEN PROPERTY - WHETHER INSURER AWARE OF CONVICTION - WHETHER AGENT OF COMPANY AWARE OF INFORMATION - NEGLIGENCE - BROKER - WHETHER AWARE - DAMAGES - WHETHER IN- SURED WOULD HAVE OBTAINED COVER IF INFOR- MATION DISCLOSED - INTEREST - WHETHER SHOULD BE AWARDED - Courts Act 1981, s.22 The plaintiff was the owner of a shop premises. In August 1983 he entered into a pol icy of insurance with the defendant com- pany to cover the building, stock, fixtures and fittings and loss of profits for one year. The second defendant acted as insurance broker for the plaintiff. The policy was renewed in August 1984. In November 1983, the plaintiff was arrested and charged with receiving stolen goods. He later pleaded guilty to the charge and was sentenced to a term of imprisonment. A fire occurred in the shop premises in May 1985 causing sub- stantial damage to the building and its contents. When the plaintiff made a claim under his policy, the defendant company repudiated liability on the ground that the plaintiff's arrest and conviction had not been disclosed to it in 1983 or on the renewal of the policy. The plaintiff insti- tuted proceedings against the two defend- ants, claiming that the insurance company was not entitled to repudiate and, in the alternative, that the second defendant had been negligent. HELD by Blayney J dismiss- ing the claim against the insurance com- pany but finding the broker negligent: (22 March 1991) (1) the commission of the offence of receiving stolen property was a material fact which should have been dis- closed on renewal, since it would have affected the mind of a prudent insurer. Chariot Inns Ltd v Assicurazioni Generali SPA [1981] ILRM 173; [1981] IR 199 ap- plied; (2) the insurance company had no knowledge of the plaintiff's arrest in No- vember 1983; and even if the Court were to accept the evidence for the plaintiff that a clerk in the company's office was aware of the arrest, he had not become aware in the ordinary course of his employment, and so knowledge could not be imputed to the company; and thus the company was enti- tled to repudiate liability. Passage in MacGillivray and Parkington on Insurance Law, 7th ed, para.674 approved; (3) the evidence established that the principal of the defendant broker had become aware of the plaintiff's arrest in November 1983, and he was in breach of his duty to the plaintiff by not advising him to disclose this infor-

a conviction of the applicant in 1984 for assault, in an incident in which it was alleged that the applicant had discharged his shotgun, but in relation to which no charge under the 1925 Act was brought. S.5 of the 1925 Act provides that a licence may be revoked where a Superintendent is 'sat- isfied', inter alia, that the holder is a person who cannot, without danger to the public safety or to the peace, be permitted to possess firearms. The applicant challenged the revocation on the ground that he had had no opportunity to reply to or deal with the grounds of the decision. HELD by Egan J quashing the revocation order: although s.5 of the 1925 Act did not provide for a hearing, the revocation must be conducted with fair procedures; and while in some circumstances instant revocation would be perfectly permissible, this was not such a case having regard to the fact that the shotgun was in Garda custody; and thus the applicant was entitled to a hearing on the basis of the audi alteram partem principle. Devereaux v Kotsonouris High Court 21 March 1991 CRIMINAL LAW - SUMMONS - CHARGE OF REFUSAL TO PERMIT PHOTOGRAPH OR FINGERPRINT TO BE TAKEN - WHETHER BAD FOR DUPLICITY - JUDICIAL REVIEW - APPLICANT HAVING APPEALED CONVIC- TION IN DISTRICT COURT TO CIRCUIT COURT - WHETHER JUDICIAL REVIEW LIES - Criminal Justice Act 1984, s.6 S.6(1) of the 1984 Act empowers a member of the Garda Siochana to do a number of things in relation to a person detained un- der s.4 of the 1984 Act. S.6(1 )(c) empowers a Garda to photograph such person, and s.6(1)(d) empowers a Garda to fingerprint such person. S.6(4) of the 1984 Act states that any person who obstructs or attempts to obstruct a Garda exercising such powers shall be guilty of an offence. The applicant had been convicted before the respondent Judge of the District Court on a summons which alleged that he had unlawfully ob- structed a member of the Garda Siochana by refusing to allow himself 'to be photo- graphed or fingerprinted'. The particulars in the summons stated that such was 'con- trary to s.6(1)(c)(d) Criminal Justice Act 1984.' The order of the District Court re- corded that this was treated as a single offence, and the applicant was sentenced to 8 months imprisonment. The applicant appealed theconviction to theCircuitCourt and then applied for judicial review of the District Court decision. The Circuit Court appeal was adjourned generally pending the judicial review proceedings. HELD by Lavan J refusing judicial review: (1) there were no offences created by s.6(1 )(c) or (d) of the 1984 Act; but it was clear that s.6(4) created a number of offences in respect of the powers conferred by s.6(1) of the 1984 Act; (2) to lay more than one charge of 'obstructing' or 'attempting to obstruct' was duplicitous. The State (McGroddy) v Carr [1975] IR 275 applied; (3) since the appli- cant was charged under s.6 of the 1984 Act, he was not prejudiced in the conviction entered against him and was thus not enti- tled to judicial review ex debito justitiae; and since he had appealed the conviction to the Circuit Court it was not appropriate to grant judicial review. The State (Vozza) v O

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