243 / 244
GAZETTE
SEPTEMBER 1979
of the minor nature of the offence; and
he may do so by obtaining from the
prosecution a general statement of the
facts of the case.
Held
(per McMahon J.) that:
(1) The purpose of Section 2(2) of
the Criminal Justice Act, 1951, was
to prevent a District Justice from
depriving an accused of his right to
trial by jury on a non-minor offence.
If, however, a District Justice based
his opinion on an inadequate
statement of the facts and it appeared
to him during the course of the trial
that the offence was a non-minor one
then clearly it was the duty of the
Court to discontinue the trial (citing
the decision of Henchy J. in
The
State (Holland)
v.
District Justice
Eileen Kennedy,
[1977] I.R. 193.
(2) Following
Conroy
v.
Attorney
General A Ors.
[1965] I.R. 411 that
the major test which a District Justice
should apply in relation to the
question whether an offence was a
minor offence was the appropriate
punishment to be imposed for it. In
the present case the District Justice
imposed half the maximum sentence
and clearly considered it to be a
minor offence. The Prosecutors'
affidavits disclosed no evidence
which would compel the District
Justice to come to the conclusion that
the case was one fit to be tried on
indictment only. Cause shown
allowed.
The State (McDonagh) v. District
Justice OTiUadaigh and The State
(Herlihy) v. District
Justice
OliUadaigh, — High Court (per
McMahon, J.) — 9 March, 1979 —
Unreported.
LAW OF PROPERTY
Married Women's Status Act 1957
— Lands purchased in the joint
names of husband and wife declared
under the Act to be owned by them in
equal beneficial shares.
The husband and wife were married
in London in 1966. Two years later,
the wife's mother, Mrs. A.,
purchased a house there and had it
put in the joint names of her daughter
and her daughter's husband. Mrs. A.
gave evidence that her intention was
that the house was to be the joint
property of her daughter and her
husband; and that she was aware that
her daughter's husband did not have
any capital or assets, and that she did
not want him to be dependent on his
wife.
The husband and wife lived in this
London house until 1973 when they
decided to come and reside in
Ireland. The house was sold and,
after discharging a jointly raised
mortgage and an overdraft raised in
his sole name by the husband, the net
proceeds of sale came to £31,000.
A farm of land in County Cork
was jointly purchased for £22,500.
Of this sum, £20,000 was provided
out of the balance remaining from the
London sale and £2,500 by Mrs. A.
to her daughter.
Unhappy differences subsequently
arose. The wife left the farm in 1977
and returned to London. The
husband continued to reside at the
farm, having 'de facto' custody of the
three children of the marriage.
The wife, as Plaintiff, now claimed
a declaration that she was entitled to
the sole beneficial ownership of the
farm of which she and her husband
were registered as joint owners.
On behalf of the wife, it was
argued that in respect of the
husband's half-share in the London
property there was a resulting trust to
Mrs. A. and that even if there was
evidence of an intention to benefit the
husband such intention must be
construed to do so only for the
duration of the marriage; the
marriage having broken up, that
intention ceased and the resulting
trust was superimposed.
Held (per
Finlay P.) that following
Fowkes v. Pascoe
[1875] 10 Ch.
App. 343, the evidence of Mrs. A.
clearly rebutted a presumption of a
resulting trust and the putting by
Mrs. A. of a half share in the London
property in the name of the husband
was an irrevocable gift by her to her
son-in-law. From the sale of the
London property held in equal shares
beneficially by the husband and the
wife there was derived the substantial
monies then invested in the farm. On
the authority of
Pettitt
v.
Pettltl
[1969] 2 W.L.R. 966 there was no
room on the evidence for any
conclusion that on the break-up of
the marriage different trusts were
superimposed upon the original gift.
No agreement could be implied at the
time of the £2,500 gift from Mrs. A.
to her daughter which should disturb
the equality which was apparently the
entire concept of the purchase of the
farm in succession to the London
property.
Declaration that the farm was
owned by the husband and the wife in
equal beneficial shares.
B. v. B. — High Court (per Finlay
P.) — 25 July 1978 — Unreported.
EVIDENCE — NULLITY
It is not in accordance with the
proper administration of Justice to
cast aside the corroborated and un-
questioned evidence of witnesses still
less to impute collusion or peijury to
them, when they are not given an
opportunity of rebutting such an
accusation. To do so is, in effect, to
condemn them unheard and is con-
trary to natural justice.
In a petition for nullity before the
High Court, the ground relied on was
the
non-consummation
of
the
marriage because of the husband's
impotence. At the hearing the wife
gave full and detailed evidence to the
effect that from the date of the
marriage in April 1971, until she and
the husband finally ceased to live to-
gether 6 | years later, they never
succeeded in having sexual inter-
course because of the husband's in-
capacity.
Her
evidence
was
corroborated
by
a
general
practitioner, who gave evidence that
the husband had come to see him
about his impotence early in 1976,
and by a consultant physician to
whom the husband was then referred
and who, because he considered the
complaint of impotence to be due to
psychological factors, referred the
husband to a consultant psychiatrist,
who was not called as a witness, but
whose medical reports were referred
to. The same general practitioner,
who had seen the wife in October
1975, gave evidence that he was of
the opinion that she was then still a
virgin. The husband, who was re-
presented by Counsel, gave evidence
admitting that, notwithstanding the
best efforts of his wife and himself to
act on the advice and guidance given
to
them
by
the
consultant
psychiatrist, consummation of the
marriage had never been effected,
and that the failure was due to his
non-physical
or
psychological
incapacity.
It had never been suggested to the
husband or to the wife during the
hearing that they
had
acted
collusively in the matter before the