The Gazette 1972

UNREPORTED IRISH CASES Criminal Law: Accused who pleads guilty to an offence can be sentenced in one Court, even though his co-accused got a suspended sentence in another Court. Criminal Law

years, nine months instead ot twelve months and three months instead of six months, i he sentence ot clis- quanncation was quashed. [The People, A.-G. v Poyning; Court of Criminal /\ppeai (Waisn, .butler and bringie J.J.j; per Walsh J.; unreported; 3rd March fy72.J Practice: Court has no jurisdiction to order a lis pen- dens he vacated against the will ot the party who registered it until the suit is determined. Two defendants, brady and Fitzsimons, are the owners of the Failte bar in Athboy, Co. Meath. In July f97U they agreed to sell it to the plaintiff for £11,100. A deposit oi £1,880 was paid, but it was not possible to complete until August owing to the bank strike. When tne strike ended in November, £378 out of the deposit of £1,880 had not been honoured, ln May 1971 the plaintiff wrote rescinding the contract, and on 17th May 1971 he issued a plenary summons, in which he claimed rescision of the contract, the return of the deposit with interest and damages for breach and for fraudulent misrepresentation. This summons was regis- tered in the Central Office on the same day as a. lis pendens affecting the estate of the second defendant. The defendants duly notified the plaintiff that the pro- ceedings should not have been registered as a lis pendens, and requested him to vacate it, as they were unable to complete a sale to another purchaser for £9,000 until the lis had been vacated. The rule before the Protection of Purchasers (Ireland) Act, 1844, was that a person who acquired an estate or interest in relation to which a suit had been started when he got his title, took it sub- ject to the rights and liabilities of the suit whether he had notice of it or not. All the case law from Worsley v The Earl of Scarborough (1746) to Bellamy v Sabine (1857), confirmed the doctrine that, pendente lite, neither party to the litigation can alienate the property in dispute so as to affect his opponent. The 1844 Act provides that a purchaser should have due notice of a lis pendens. The plaintiff, having paid some of the deposit, if he suceeds in his claim for its recovery, he will have a purchaser's lien on the land for it, which is a right protected by a lis pendens. Accordingly the defendant's motion to vacate is dismissed. [Gibbs v Brady and Fitzsimons; Kenny J.; unre- ported; 21st February 1972.] Nuisance: Injunction against offensive smells and dust refused. The defendants are owners of 696 acres of land near Glenealy, Go. Wicklow, and carry on the business of egg production on an intensive scale under the trade name of Ballyfree. The plaintiffs are residents of Glenealy who complain (1) That the keeping in the pits, filling, transport and spraving of slurry releases offensive smells. (2) That offensive and noxious smells emanate from the brooder houses. (3) That offensive and noxious dust emanates from the brooder houses. 103

In August 1971 three armed men entered the Five Star Supermarket at Togher, Cork, and robbed the premises of £772 by forcing the manager and his assis- tant at gunpoint to hand over the keys of the safe. The three men were armed, the applicant with an 1875 revolver in working order, the second one with a pistol and the third man with a cosh. After the robbery they escaped in a stolen car. They were pursued by the guards, and eventually left the car. While the guards were running ier them, the man with the pistol fired a shot at them. Eventually the applicant was arrested and found to be in possession of the revolver, but had no ammunition for it. The three accused had up to then been engaged in a business venture which had failed, a nd planned the robbery to recoup their losses. The a ccuscd and Motherway had spent years in the Para- ehute Regiment of the British Army. However, the nianager and his assistant were not ill-treated, and the revolver was incapable of shooting anybody. The appli- Ca nt had participated in the robbery on the strict under- standing that no arms were to be used, but the pursuing guards did not know this. The applicant made a full confession to the guards when arrested, and co-operated with them in every Way. However, he was unable to obtain the £4,000 bail fixed by the District Court, and had spent eleven weeks •u jail before he appeared before Judge Neylon in the Cork Circuit Court. His co-accused had not only man- ned to secure the recognizances required for their bail but had also applied to have their case transferred to l he Central Criminal Court in Dublin. Accordingly when the accused appeared before the Cork Circuit Court, the accused pleaded guilty to armed robbery, for which he was sentenced to four years, to conspiracy—twelve months, and to the unlawful taking a motor vehicle—six months. He was also disquali- fied from holding a driving licence for ten years. While tfie accused was a product of a broken home, he had a good record for nine years in the Army; nevertheless in Wew of the gravity of the crime, the sentences as such )J(ere not excessive. His co-accused, Motherway and Jwomey, had meanwhile appeared before O'Keeffe P. ln the Central Criminal Court; they pleaded guilty to ar nied robbery and were each sentenced to six years P e nal servitude, the sentence to be suspended on enter- ln g into a bond of £7,000 with one independent surety keep the peace for five years. No other sentence was Imposed. The money was available to discharge the bonds, and the two accused were released. The Regis- trar was directed to apply to the County Registrar for fbe transcript, but the President would not sanction the ,s sue of a transcript, as no appeal from him in those . Ca ses was pending. A detective sergeant who had been 'Uvolved, gave evidence of the circumstances of the Despite the discrepancy in the sentences, the ^•ourt could not find any justification for varying the sentences to a significant degree. However, a sentence three years from conviction was substituted for four