The Gazette 1993

APRIL

1993 a retrial: (1) the right to a jury trial in Article 38.5 of the Constitution has as a fundamental and absolutely essential characteristic the right of the jury to deliver a verdict; (2) in the interets of justice, however, the trial judge has a right and duty to withdraw a case from the jury and direct them to enter a not guilty verdict where the judge is satisfied that a verdict of guilty could not be supported; however, there is no corresponding right or duty to di rect a jury to enter a verdict of gu i Ity, even in limited or exceptional circumstances to prevent what might appear to be a preverse verdict; (3) while such a situation might appear anomolous, the mischief which would flow from any invasion of the right of a jury to consider and arrive at its verdict, and even to arrive at what might seem to be a perverse verdict, would be much greater than any conceivable harm that could arise from the i nabi I ity of the j udge to d i rect a gu i Ity verd ict. Dicta in deBurca v Attorney General [1976] IR 38 and The People v O'Shea [1983] ILRM 549; [1982] IR 384 applied. CRIMINAL LAW - TRIAL - IMPROPRIETIES OF TRIAL JUDGE DURING TRIAL - CONVICTION QUASHED ON JUDICIAL REVIEW - WHETHER TRIAL IN DUE COURSE OF LAW - WHETHER RETRIAL COULD BE ORDERED - WHETHER DEFENDANT ENTITLED TO PLEAD AUTREFOIS ACQUIT - Rules of the Superior Courts 1986, 0.84, r.26(4) - Constitution, Article 38.1 The applicant had been convicted of assault before the respondent Judge of the District Court. The appl icant sought certiorari to quash the verdict on the ground that a number of improprieties had occurred during the hear- ing of the case. The respondents did not oppose the application for certiorari but sought to have the matter remitted to the District Court under 0.84, r.26(4) of thwe 1986 Rules. In the High Court ([1992] ILRM 479) Barron J declined to remit the case. On appeal by the DPP HELD by the Supreme Court (Finlay CJ, Hederman, O'Flaherty, Egan and Blayney JJ) dismising the appeal: (1) certiorari is an appropriate remedy to quash not only a conviction bad on its face or where a court or tribunal acts in excess of jurisdic- tion but also where it acts apparently within jurisdiction but where the proceedings are so flawed as to deprive an accused of a trial in due course of law; (2) where, as in the instant case, there was a breach of the fundamental tenets of constitutional justice in the hearing or a failure to hear the evidence in the case, the trial can properly be categorised as one that has not been held in due course of law and any resulting conviction should be quashed so as to entitle the defendant to plead autrefois acquit. Dicta in The State(Tynan) v Keane [1968] IR 348 applied. Dicta in TheState (Holland) v Kennedy [1977] IR 193 discussed. Hutch v Governor of Wheatfield Prison and Ors High Court, 28 February 1992; Supreme Court, 17 November 1992 CRIMINAL LAW- YOUNG PERSON - SUMMARY TRIAL OF INDICTABLE OFFENCE - SENTENCE - WHETHER COURT CONFINED TO IMPOSING SENTENCE OF THREE MONTHS - STATUTORY INTERPRETATION - GENERALIA SPECIALIBUS NON DEROGANT - WHETHER LATER GENERAL ACT REPEALED BY IMPLI- CATION EARLIER SPECIFIC ACT - Summary Jurisdiction Over Children (Ireland) Act 1884, ss.5, 9 - Children Act Sweeney v Brophy and DPP Supreme Court 8 December 1992

GAZETTE application under Article 40.4.2 must neces- sarily transcend any procedural form for judi- cial review or otherwise, and the High Court judge has a jurisdiction to make speedy and, if necessary, informal inquiries of the jailor or detainer to ascertain the facts, even before reaching a conclusion that a sufficient doubt exists as to the legality of the detention; in the instant case, because of the absence of any inquiries and the unfortunate error made by the High Court judge on 5 February 1992 that the November 1990 sentence had been im- posed in November 1991, the application was converted into one for judicial review with its consequent procedural delays; (3) where, as in the instant case, the application clearly raised the question of the validity of the detention the conversion into judicial review proceedings was inappropriate. Dicta in TheState(McDonagh) vFrawley (1978] IR 131 explained; (4) while there was no bar to the High Court remitting the applicant's case to the District Court under 0.84, r.26(4) of the 1986 Rules, it would not fairor just, in the particular circumstances of the instant case where the applicant was deprived by the converting order of 5 February 1992 of what appeared to be his immediate right to chal- lenge his detention, that he be charged again in respect of the offence in question, and the Court would refuse to remit the case to the District Court. The State(Tynan) v Keane [1968] IR 348 referred to. Hong Kong and Shanghai Banking Corp v Icarom pic (Meadows Indemnity Co Ltd, Third Party) Supreme Court 31 July 1992 CONTRACT - CONDITION PRECEDENT - AGREEMENT TO PROVIDE INDEMNITY OR INSURANCE IN RE- SPECT OF A SECURED LOAN - SECURITY EFFECTED PROVING INEFFECTIVE - WHETHER AGREEMENT TO INDEMNIFY OPERATIVE - WHETHER CONTRACT OF GUARANTEE OR OF INSURANCE A Greek businessman, operating through a Swiss company Amaxa SA, wished to finance the purchase of an interest in a hotel in Corfu involving a sum in the region of IR6 million. Amaxa had been refused a loan by a number of banks on the basis that inadequate security was available. Amaxa was told that a Credit Guarantee Insurance Agreement (CGI Agree- ment) might be regarded as sufficient security for the loan. The defendant company's gen- eral manager in London (the defendant, then being titled the Insurance Corporation of Ireland pic) was approached with a view to entering into such a CGI Agreement. He brought the proposal to the third party, Mead- ows, to which he acted as consultant, with a view to re-insuring the CGI Agreement. Mead- ows agreed to this, on condition that the loan to Amaxa itself be properly secured. The plaintiff bank (the bank) was then approached to effect the loan to Amaxa, the bank requir- ing the defendant to 'front' the CGI Agree- ment, that is act as principal since it was not satisfied that Meadows had sufficient capital to take on the Agreement. The loan agree- ment and the CGI Agreement were effected. Shares in the Greek hotel were purportedly transferred to the defendant to secure the loan to Amaxa. The defendant later discov- ered that it was not lawful under Greek law to transfer shares in the hotel to a non-Greek national. Amaxa defaulted on the loan agree- ment, and the bank sought payment from the defendant under the CGI Agreement. The

defendant repudiated liability on the basis that the CGI Agreement was a contract of insurance and that there had been non-dis- closure of material information by the bank, namely that the bank had been aware that the transfer of shares in the hotel to a non-Greek national was not lawful under Greek law. The defendant also argued that it was entitled to an indemnity from Meadows, but Mead- ows submitted that since the defendant had not effected security for the loan to Amaxa, no indemnity arose. In the High Court, Blayney J found for the plaintiff and that the defendant was not entitled to claim an in- demnity against Meadows: International Commercial Bank pic v Insurance Corpora- tion of Ireland pic (High Court, 19 October 1990). On appeal by the defendant on the question of indemnity from Meadows HELD by the Supreme Court (Finlay CJ, McCarthy and O'Flaherty JJ) dismissing the appeal: (1) it was probably accurate to describe the agreement between the defendant and Mead- ows as one in which Meadows agreed to insure the defendant in respect of a loss that might be sustained under the CGI Agree- ment, which was in essence a contract of guarantee; (2) however, whether the contract between the defendant and Meadows was one of guarantee or of insurance, the reality of it was that the agreement to indemnify arose if, and only if, the loan to Amaxa was secured in the manner intended by the par- ties; and since the loan had not been secured, there was nothing on which the contract to insure could operate, and thus the trial judge had been correct in holding that the Mead- ows agreement to insure was inoperative. The accused was tried on a charge of murder in the Central Criminal Court. He pleaded not guilty to murder but guilty to manslaugh- ter. This plea was not acceptable to the prosecution, and a plea of not guilty was entered. The evidence indicated that the accused had consumed a large quantity of alcohol on the day in question. He and a friend, Brady, had become involved in a fight and were being taken away from the fight, against their will, by some companions. The defendant got free and procured a knife intending to attack the person who he be- lieved had started the fight. He in fact stabbed his friend Brady a number of times and Brady died as a result. The trial judge directed the jury that, as a matter of law, they could only bring in a verdict of murder in the instant case since the consumption of alcohol would not in any way be regarded as a defence to the murder charge such as would overturn the presumption of an intention to kill or cause serious injury as required by s.4 of the Crimi- nal Justice Act 1964. The trial judge expressly directed the jury to arrive at a verdict of guilty of murder, which the jury did. On appeal by the accused HELD by the Supreme Court (Finlay CJ, Hederman, O'Flaherty, Egan and Blayney JJ) allowing the appeal and directing The People(D.P.P.) v Davis Supreme Court 9 December 1992 CRIMINAL LAW - TRIAL - JURY VERDICT - ACCUSED PLEADING NOT GUILTY OF MURDER BUT GUILTY OF MANSLAUGHTER - PLEA NOT ACCEPTED - TRIAL JUDGE DIRECTING JURY TO ARRIVE AT VERDICT OF GUILTY - CONSTITUTION - WHETHER DIRECTION CONSISTENT WITH FUNCTION OF JURY TO GIVE VERDICT - Constitution, Article 38.5

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