The Gazette 1993

GAZETTE

SEPTEMBER 1993

to indicate that any irregularity had oc- curred in this respect. R. v Prime (1973) 57 Cr App Rep 632 referred to; (3) the trial judge had not acted in breach of s.25 of the 1984 Act in informing the jury that, suffi- cient time having elapsed, he could accept a majority verdict, and upon being then informed by the jury that they had reached a 10 - 2 majority verdict, accepting that verdict. Per curiam: it might be better, how- ever, where the trial judge applies s.25 of the 1984 Act and where the judge is there- upon informed that a majority verdict has been reached, for the jury to be asked to retire for a further short time to consider the matter in private; (4) the sentence of 6 years may not have reflected the acquittal of the defendant on the most serious charge, and in the circumstances it would be reduced to 4 years, to run from the date of the offences and his arrest. Minister for Agriculture and Food v Cahill High Court 12 November 1992 CRIMINAL LAW - TRIAL - PROCEDURE - CONTROL OF PESTICIDES - DEFECT IN PROOF CONCERNING PROD- UCT SAMPLES ALLEGED TO CONTAIN PROHIBITED PESTICIDE - SEPARATE EVIDENCE THAT DEFENDANT ADMITTED USING PROHIBITED PESTICIDE - Euro- pean Communities (Classification, Packaging and Label- ling of Pesticides) Regulations 1981 - European Commu- nities (Classification, Packaging and Labelling of Pesti- cides) (Amendment) Regulations 1985, Reg.13 - Euro- pean Communities (Classification, Packaging and Label- ling of Pesticides) (Amendment) Regulations 1987 The defendant was charged by the prosecut- ing Minister in the District Court with of- fences alleging that he used on a product a pesticide containing a prohibited substance, contrary to the 1981 Regulations, as amended. The prosecution sought to intro- duce in evidence results from samples which had been taken from products under the control of the defendant. The statutory re- quirements concerning the taking of such samples, laid down in Reg.13 of the 1985 Regulations as amended by the 1987 Regu- lations, had not been complied with and the results were therefore deemed inadmissible by the District Judge. Other evidence given for the prosecution was to the effect that the defendant had admitted that he had used a pesticide containing a prohibited substance. The District Judge concluded that, as the product sample had been taken in breach of the 1985 Regulations, the case should be dismissed. On case stated HELD by O'Hanlon J: (1) the 1981 Regulations, as amended, did not lay down as a condition precedent to a conviction that any samples taken must be proved in the manner pre- scribed by the Regulations, and there was the possibility that even where the sample evidence is rejected the defendant may be convicted on other evidence; (2) in the instant case, the District Judge had been correct to rule out evidence of the samples, but he should have proceeded to consider whether on the remaining evidence it was open to convict the defendant on the charges brought, and accordingly the case would be remitted to the District Court to deal further with the charges. In re Murphy Courts • Martial Appeal Court 17 November 1992 DEFENCE FORCES - MILITARY LAW - COURT - MAR- TIAL - OFFICER OF CHOICE TO DEFENCE - WHETHER GRANTED - Rules of Procedure (Defence Forces) 1954,

casting Act 1990, which permitted the op- erators of the independent TV channel to use independent transmission equipment and also placed new advertising limits on ' RTE. In consequence, the consortium sub- mitted a revised business plan to the Com- mission in April 1991. In June 1991, at a meeti ng with the Commission, it was agreed that the consortium provide the Commis- sion by the end of August 1991 with precise information on the identity and extent of the investors in the consortium, whose mem- bership had altered since 1989. After this meeting the consortium became aware that the Department of Communications was undertaking a review of the 1990 Act, and that the advertising limits on RTE might be removed. The consortium was unable to obtain precise information from the Depart- ment, and informed the Commission that arising from this it was unable to provide the financial information requested in the June meeting. The Commission deferred any de- cision on the effect of this, but in October 1991, the Commission communicated to the consortium its decision to withdraw, with immediate effect, what it described as the conditional offer of the TV franchise. The applicants sought judicial review of this decision. HELD by Blayney J granting cer- tiorari of the decision: (1) s.6 of the 1988 Act required the Commission to award the con- tract for a television programme service to the most suitable applicant, having regard to the criteria set out in s.6; and once it had done so, all that remained was for the actual terms of the contract to be negotiated with the applicant and to enter into that contract forthwith under s.4 of the 1988 Act; there was no obligation on the Commission to make any further investigations into the applicant since in the event that misleading information was provided to it, it could withdraw a contract under s.14 of the Act; (2) while it was difficult to categorise the relationship between the Commission and the consortium in the period April 1989 to October 1991, it probably fell short of a contractual relationship; when viewed against the background of the 1988 Act, the decision in April 1989 undoubtedly consti- tuted a promise by the Commission to enter into a contract with the consortium, and the decision in October 1991 amounted to a unilateral cancellation of the April 1989 promise; (3) in making these decisions, the Commission was exercising an administra- tive function created by statute and was obliged to act in accordance with the prin- ciples of constitutional justice; and since the Commission did not give notice of its inten- tion to cancel its April 1989 decision, or give any prior notice of its reasons or give the applicants an opportunity to be heard, the decision should be quashed. Dicta in Fast Donegal Co- Op Ltd v Attorney Gen- eral [19701 IR 317 and O'Brien v Bord na Mona [1983] ILRM 314; [1983] IR 255 applied. OToole v Heavey Supreme Court 17 De- cember 1992 PRACTICE - ACTION - APPLICATION FOR NON - SUIT AT END OF PLAINTIFF'S EVIDENCE - TRIAL JUDGE GRANTING APPLICATION - Wi IETHER CORRECT TEST APPLIED The plaintiff instituted proceedings in negli- gence against the defendant, a dental sur-

Art.20(3) The accused, a Private in the Irish Army, had been charged with desertion. Prior to his Court - Martial, he had requested that he be defended by one Captain Milner, but he was unavailable. The accused was informed by the Convening Authority that another of- ficer, Captain White, was available. The accused asked the Convening Authority to ask Capta i n Wh ite if he was wi 11 i ng to act for him. Captain White agreed to act for the accused. The Convening Authority subse- quently served on the accused a copy of the charge sheet, and under Art.20(3) of the 1954 Rules asked the accused if he wished to be represented by a particular officer or if he wished the Convening Authority to as- sign an officer. In reply, the accused gave Captain White's name. Art.20(3) requires the Convening Authority to assign a suitable officer if requested to do so by an accused. At his Court - Martial, the accused pleaded guilty to being absent without leave, and this plea was accepted. He was ordered to be discharged from the Defence Forces. On appeal HELD by the Courts - Martial Appeal Court (Blayney, Lynch and Lavan JJ) dis- missing the appeal: (1) the Convening Au- thority had not acted in breach of Art.20(4) of the 1954 Rules since although the ac- cused's original choice of officer was una- vailable, the Convening Authority had not been requested to assign an officer to the accused, but rather the accused had re- quested that Captain White act for him. The State(Freeman) v Connellan 11987] ILRM 470 distinguished; (2) the Court had, pursu- ant to s.17 of the 1983 Act, taken into account additional evidence by the accused that he had been subjected to violence by his wife, and that he had feared that she might become violent to their children and that this had led him to stay in England with his children, but even if the Court - Martial had had this evidence available to it, it was unlikely that it would have affected its deci- sion. TV 3 Television Co Ltd and Ors v Independ- ent Radio and Television Commission High Court 4 May 1992 JUDICIAL REVIEW - FAIR PROCEDURES - AWARD OF TELEVISION FRANCHISE BY STATUTORY BODY TO CONSORTIUM - WHETHER CONDITIONAL ON PRO- VISION OF DETAILED FINANCIAL INFORMATION BY CONSORTIUM - WITHDRAWAL OF FRANCHISE - WHETHER STATUTORY BODY REQUIRED TO ACT JUDICIALLY - Radio and Television Act 1988, ss.4,6,14 The respondent, the Independent Radio and Television Commission, was established by the 1988 Act with a view, inter alia, to entering into a contract with some person or persons for the provision of a television programme service. Having examined a number of proposals, the Commission de- cided in April 1989 to award the franchise to operate an independent national TV chan- nel to what was known as the Windwill consortium, represented by the applicants. This decision was stated in the Commis- sion's minutes to be 'subject to suitable contracts being negotiated.' After this deci- sion, the consortium found that technical transmisison problems and the extent of the revenue earning capacity of Radio Telefis Eireann (RTE) placed serious impediments in establishing an effective national TV chan- nel. These were addressed by the Broad-

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