458 / 462
GAZETTE
SEPTEMBER1992
a conviction of the applicant in 1984 for
assault, in an incident in which it was
alleged that the applicant had discharged
his shotgun, but in relation to which no
charge under the 1925 Act was brought. S.5
of the 1925 Act provides that a licence may
be revoked where a Superintendent is 'sat-
isfied', inter alia, that the holder is a person
who cannot, without danger to the public
safety or to the peace, be permitted to
possess firearms. The applicant challenged
the revocation on the ground that he had
had no opportunity to reply to or deal with
the grounds of the decision.
HELD
by Egan
J quashing the revocation order: although
s.5 of the 1925 Act did not provide for a
hearing, the revocation must be conducted
with fair procedures; and while in some
circumstances instant revocation would be
perfectly permissible, this was not such a
case having regard to the fact that the
shotgun was in Garda custody; and thus the
applicant was entitled to a hearing on the
basis of the audi alteram partem principle.
Devereaux v Kotsonouris High Court 21
March 1991
CRIMINAL LAW - SUMMONS - CHARGE OF REFUSAL
TO PERMIT PHOTOGRAPH OR FINGERPRINT TO BE
TAKEN - WHETHER BAD FOR DUPLICITY - JUDICIAL
REVIEW - APPLICANT HAVING APPEALED CONVIC-
TION IN DISTRICT COURT TO CIRCUIT COURT -
WHETHER JUDICIAL REVIEW LIES - Criminal Justice
Act 1984, s.6
S.6(1) of the 1984 Act empowers a member
of the Garda Siochana to do a number of
things in relation to a person detained un-
der s.4 of the 1984 Act. S.6(1 )(c) empowers
a Garda to photograph such person, and
s.6(1)(d) empowers a Garda to fingerprint
such person. S.6(4) of the 1984 Act states
that any person who obstructs or attempts
to obstruct a Garda exercising such powers
shall be guilty of an offence. The applicant
had been convicted before the respondent
Judge of the District Court on a summons
which alleged that he had unlawfully ob-
structed a member of the Garda Siochana
by refusing to allow himself 'to be photo-
graphed or fingerprinted'. The particulars
in the summons stated that such was 'con-
trary to s.6(1)(c)(d) Criminal Justice Act
1984.' The order of the District Court re-
corded that this was treated as a single
offence, and the applicant was sentenced
to 8 months imprisonment. The applicant
appealed theconviction to theCircuitCourt
and then applied for judicial review of the
District Court decision. The Circuit Court
appeal was adjourned generally pending
the judicial review proceedings.
HELD
by
Lavan J refusing judicial review: (1) there
were no offences created by s.6(1 )(c) or (d)
of the 1984 Act; but it was clear that s.6(4)
created a number of offences in respect of
the powers conferred by s.6(1) of the 1984
Act; (2) to lay more than one charge of
'obstructing' or 'attempting to obstruct' was
duplicitous.
The State (McGroddy) v Carr
[1975] IR 275 applied; (3) since the appli-
cant was charged under s.6 of the 1984 Act,
he was not prejudiced in the conviction
entered against him and was thus not enti-
tled to judicial review ex debito justitiae;
and since he had appealed the conviction
to the Circuit Court it was not appropriate to
grant judicial review.
The State (Vozza) v O
Floinn
[1957] IR 227 distinguished;
The
State (Roche) v Delap
[1980] IR 170 ap-
plied; (4) since the Circuit Court would be
entitled to confirm, vary or reverse the
decision of the District Court, the Circuit
Court could deal with any problems of
duplicity in the summons. Per Lavan J: the
evidence on affidavit indicated that the
applicant had been guilty of one of two
offences provided for by s.6(4) of the 1984
Act, assuming that such evidence was es-
tablished to the satisfaction of the respond-
ent Judge of the District Court.
Sweeney v Brophy and DPP High Court 20
December 1991
CRIMINAL LAW - TRIAL - IMPROPRIETIES OF TRIAL
JUDGE DURING TRIAL - CONVICTION QUASHED
ON JUDICIAL REVIEW - WHETHER RETRIAL COULD
BE ORDERED - WHETHER DEFENDANT ENTITLED
TO PLEAD AUTREFOIS ACQUIT
The applicant had been convicted of as-
sault before the respondent Judge of the
District Court. The applicant sought certio-
rari to quash the verdict on the ground that
a number of improprieties had occurred
during the hearing of the case. The respond-
ents did not oppose the application for
certiorari but sought to have the matter
remitted to the District Court.
HELD
by
Barron J refusing to remit the case: the
improprieties which had occurred did not
make the trial void ab initio, but the result-
ing conviction was voidable so that certio-
rari lay to quash it; and since the applicant
had been put in peril in a trial which had
initially been valid, he was entitled to plead
autrefois acquit and it was thus not appro-
priate to remit the case. Dicta in
R.(Drohan)
v Waterford Justices
[1901] 2 IR 548 ap-
plied;
Singh v Ruane
[1989] IR 610 distin-
guished.
Director of Public Prosecutions v Brennan
High Court 20 December 1991
CRIMINAL LAW - TRIAL - TRIAL JUDGE DISMISSING
CHARGE BEFORE ENTERING INTO MERITS - DECI-
SION QUASHED ON JUDICIAL REVIEW - WHETHER
MATTER TO BE REMITTED TO TRIAL COURT -
WHETHER DEFENDANT ENTITLED TO PLEAD
AUTREFOIS ACQUIT
The respondent Judge of the District Court
was the trial judge in a prosecution of two
persons for malicious damage and bur-
glary. The two defendants had been ar-
rested under s.30 of the Offences against
the State Act 1939 on suspicion of mali-
cious damage. The defendants made con-
fessions of their involvement in the mali-
cious damage, and at about 4.30 p.m. on
the date in question they were visited by
their solicitor. The Gardai wished at this
stage to bring them before a court, but the
respondent was unavailable at the time.
The defendants were, accordingly, released
from their s.30 custody and immediately re-
arrested at common law and were charged
with malicious damage and burglary. They
were detained overnight in Garda custody
and brought before a court the following
morning. The defendants elected for sum-
mary trial and indicated that they would
plead guilty. At the hearing of their case,
their solicitor argued that their detention
after 4.30 p.m. on the date in question was
unlawful and that accordingly the charges
should be dismissed. The respondent Judge
acceded to this submission. On judicial
review by the Director
HELD
by Barron J
quashing the respondent's decision and
remitting the case to the District Court: (1)
the respondent had acted improperly, and
should have allowed the case to proceed
and then dealt with any submissions as to
unlawful custody in the course of the trial,
and so his decision should be quashed; (2)
the respondent's decision was a nullity, and
since he never entered into an adjudication
on the charges against the defendants it was
appropriate to remit the case to the District
Court to deal with the matter.
R.(McGrath)
v Clare Justices
[1905] 2 IR 510 applied.
Latham v Hibernian Insurance Co Ltd and
Peter J Sheridan & Co Ltd High Court 22
March and 4 December 1991
INSURANCE - NON-DISCLOSURE OF MATERIAL IN-
FORMATION - INSURED CONVICTED OF RECEIV-
ING STOLEN PROPERTY - WHETHER INSURER AWARE
OF CONVICTION - WHETHER AGENT OF COMPANY
AWARE OF INFORMATION - NEGLIGENCE - BROKER
- WHETHER AWARE - DAMAGES - WHETHER IN-
SURED WOULD HAVE OBTAINED COVER IF INFOR-
MATION DISCLOSED - INTEREST - WHETHER
SHOULD BE AWARDED - Courts Act 1981, s.22
The plaintiff was the owner of a shop
premises. In August 1983 he entered into a
pol icy of insurance with the defendant com-
pany to cover the building, stock, fixtures
and fittings and loss of profits for one year.
The second defendant acted as insurance
broker for the plaintiff. The policy was
renewed in August 1984. In November
1983, the plaintiff was arrested and charged
with receiving stolen goods. He later pleaded
guilty to the charge and was sentenced to a
term of imprisonment. A fire occurred in the
shop premises in May 1985 causing sub-
stantial damage to the building and its
contents. When the plaintiff made a claim
under his policy, the defendant company
repudiated liability on the ground that the
plaintiff's arrest and conviction had not
been disclosed to it in 1983 or on the
renewal of the policy. The plaintiff insti-
tuted proceedings against the two defend-
ants, claiming that the insurance company
was not entitled to repudiate and, in the
alternative, that the second defendant had
been negligent.
HELD
by Blayney J dismiss-
ing the claim against the insurance com-
pany but finding the broker negligent: (22
March 1991) (1) the commission of the
offence of receiving stolen property was a
material fact which should have been dis-
closed on renewal, since it would have
affected the mind of a prudent insurer.
Chariot Inns Ltd v Assicurazioni Generali
SPA
[1981] ILRM 173; [1981] IR 199 ap-
plied; (2) the insurance company had no
knowledge of the plaintiff's arrest in No-
vember 1983; and even if the Court were to
accept the evidence for the plaintiff that a
clerk in the company's office was aware of
the arrest, he had not become aware in the
ordinary course of his employment, and so
knowledge could not be imputed to the
company; and thus the company was enti-
tled to repudiate liability. Passage in
MacGillivray and Parkington on Insurance
Law,
7th ed, para.674 approved; (3) the
evidence established that the principal of
the defendant broker had become aware of
the plaintiff's arrest in November 1983, and
he was in breach of his duty to the plaintiff
by not advising him to disclose this infor-
2