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

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

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,

nd planned the robbery to recoup their losses. The

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-

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

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.

the Central Criminal Court; they pleaded guilty to

nied robbery and were each sentenced to six years

nal servitude, the sentence to be suspended on enter-

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

sue of a transcript, as no appeal from him in those

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

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.

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.

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