The Gazette 1995

GAZETTE

JANUARY/FEBRUARY 1995

Recent Irish Cases Edited by Raymond Byrne, BCL, LLM, BL, Lecturer in Law, Dublin City University The following case summaries have been reprinted from the Irish Law Times and Solicitors Journal with the kind permission of the publishers.

have to face a further trial of the issue as to what was the appropriate forum for the case. Proceedings had already been instituted in New York and the courts of that jurisdiction, which had been cho- sen by the plaintiffs, had decided that it was forum non conveniens. If they had been dissatisfied with these decisions the plaintiffs should have appealed against them. Subsequently seeking a stay in the High Court on the grounds that Ireland was forum non conveniens was, in effect, an attempt to have the decisions of the New York courts re- versed by an Irish court. This was an unjust manner of proceeding in respect of the defendants because it required them to meet a claim which could have been appealed in New York and also run the risk of an appeal in Ireland. Reported at [1994| 1ILRM 416 D. v. Director of Public Prosecutions: Supreme Court (Finlay CJ, O'Flaherty, Egan, Blayney and Denham JJ) 17 November 1993 Criminal Law - Trial - Prohibition - Inde- cent assault - Inaccurate reporting of evi- dence in the media - Jury discharged and re-trial ordered - Subsequent prejudicial media coverage - Whether Director of Pub- lic Prosecutions should be prohibited from pursuing further prosecution in the matter - Constitution of Ireland 1937, Articles 38.1,40.3 Facts The applicant had been charged with indecently assaulting a young girl in a boat off the Donegal coast on a date unknown between April and Novem- ber 1988. His trial on this charge came on for hearing before the Dublin Circuit Criminal Court on 27 July 1992. As a result of inaccurate reporting in two of the national daily newspapers of the evidence adduced at the trial, the jury was discharged and the editors of these papers summoned to court to explain their conduct. At this hearing, counsel for the Director of Public Prosecutions (DPP) remarked that as a result of this inaccurate reporting, a 'patently guilty man had gone free.' The combination of these events ensured that the case re- ceived widespread publicity, with one Sunday newspaper in particular run-

ning a series of highly charged feature articles on the case. The applicant sought to prohibit the DPP from pro- ceeding with a re-trial on the basis that the likely prejudice engendered in anv- one who read these articles was such as to make it impossible for him to receive a fair trial and also that, by reason of the delay which had occurred from the time of the date of the commission of the alleged offence and any subsequent re- trial, he was prejudiced in the prepara- tion of his defence to this charge. In the High Court Carney J granted the relief sought and held that anvone who had read these articles would not be suitable for jury service in any trial of this mat- ter. Held by the Supreme Court (Blaynev and Denham JJ; O'Flaherty J concur- ring, Finlay CJ and Egan J dissenting) in allowing the appeal: (1) The right of an accused to a fair trial is of fundamental constitutional importance, and the question which the court must answer is whether there is a real risk that the applicant would not obtain such a fair trial because of the coverage of the case in the media. (2) The appropriate bur- den of proof on an applicant in estab- lishing the likelihood of an unfair trial is to show that there is a real or serious risk that there will be an unfair trial. Finucane v. McMahon [1990] 1 IR 165 applied. (3) While it was possible that a member of the jurv would remember reading the article and associate it with the instant case and feel sympathy to- wards the victim, the applicant had failed to show that there was a real or serious risk that the jury would be pre- vented from returning an impartial ver- dict in the case. (4) To hold otherwise would be to imply that jurors would ignore their oath and duties as jurors as well as the charge of the trial judge to well and truly decide the case on the evidence adduced during the course of the trial alone and not to allow them- selves to be influenced by any matters extraneous to the trial itself. Per Den- ham J: While the court must give some consideration to the community's right to have an alleged crime prosecuted in the usual manner, on the hierarchy of constitutional rights, there is no doubt that the applicant's right to fair proce- dures takes precedence over the right of the community to have an alleged crime prosecuted. Reported at [1994] 1 ILRM 435

John Doe and Barbara Doe, Joseph Dowling and Mary Dowling v. Ar- mour Pharmaceutical Co. Inc., Baxter Health Care Corporation and Myles Laboratories Inc.: Supreme Court (Fin- lav CJ, O'Flahertv, Egan, Blaynev and Denham JJ) 9 March 1994 Private International Law - Forum Con- veniens - Claims of negligence in the manufacture and preparation of a blood clotting product - Initiation of proceedings in New York - Decisions of New York courts that New York was forum non con- veniens subject to condition that plaintiffs should be at liberty to recommence proceed- ings there if Irish courts declined jurisdic- tion - Proceedings commenced in Ireland but stay sought by plaintiffs on ground that claims would be more conveniently tried in Netu York - Whether'stay in the interests of justice Facts The plaintiffs brought proceed- ings against the defendants in New York for negligence in the manufacture and preparation of a blood clotting product which was intended for use by haemophiliacs. The New York courts acceded to motions brought by the de- fendants that the actions should be dis- missed on the ground of forum non con- veniens. These orders were subject to a number of conditions, including agree- ment bv the defendants that they would not prevent the plaintiffs from return- ing to the New York courts in the event of the Irish courts declining to accept jurisdiction. After commencing pro- ceedings in Ireland, the plaintiffs then brought motions seeking, inter alia, dec- larations that the claims would be more conveniently and properly tried in New York and that the High Court decline jurisdiction, and an order staying pro- ceedings in Ireland pending the deter- mination of the issues in New York. Held by the Supreme Court (Blayney J; Finlay CJ, O'Flaherty, Egan and Den- ham JJ concurring) in dismissing the appeal: (1) In considering an applica- tion for a stay where a dispute arises as to the appropriate forum for the litiga- tion, the test to be applied was whether or not justice required that the action should be stayed. MacShannon v. Rock- ware Glass Ltd [1978] AC 795 and Attor- ney General v. Arthur Andersen and Co. [1989] ECC 224 approved. (2) On the facts justice did not require that the plaintiffs' actions should be stayed. (3) It would be unjust for the defendants to