The Gazette 1989

477 / 482

GAZETTE i MAY 1989
Recent
Irish
Cases
Edited by
Gary Byrne, Solicitor
EVIDENCE
Section 2 9 Certificate from the Court of
Criminal Appeal as to whether a
Statement by an investigating Garda
amounted to an improper inducement by
threat, so as to Invalidate a Statement of
Admission made immediately after-
wards by the Applicant.
The Applicant had been convicted in the
Special Criminal Court of the possession of
firearms and ammunition. The Court of
Criminal Appeal refused his Appeal, but the
Court gave a Certificate under Section 29
of the Courts of-Justice Act 1924, enabling
him to appeal on one point to the Supreme
Court.
The firearms and ammunition had been
found in a house in which the Applicant lived
with his mother and other members of his
family. He was not in the house when the
property was found. Approximately one
month later, he surrendered himself to
Gardai in the presence of his Solicitor. He
refused to discuss the matter of the property
with the Gardai, despite intensive ques-
tioning for approximately seven and a half
hours. Then the investigating Officer asked
the following questions: "Will I have to get
some Member to go up to your family and
find out from them if anybody at 78 Ross-
more Avenue is going to take responsibility
for the property in the house?" Immediately
afterwards, the accused made a statement
of admission. This was the only evidence
against him. He was convicted in the Special
Criminal Court. On appeal, the Court of
Criminal Appeal found that this question of
the Investigating Officer had induced the
accused to make the statement of admis-
sion. They held, however, that it did not
amount to an improper inducement, and
accordingly they upheld his conviction.
The Supreme Court were unanimous in
holding that the question of the Gardai
Officer did amount to improper inducement
by threat. Henchy J. reiterated the rule that
the test of whether an inducement is an
improper one is an objective one. It is no part
of the test to consider the intention or the
motive of the person making the statement.
In the present case, it was obvious that the
applicant's sudden confession was made
essentially for the purpose of avoiding the
proposed visit of a Garda to his family. The
applicant himself had treated the question
as a threat.
McCarthy, J. in a concurring Judgment,
HELD that the test is whether the in-
criminating statement can be free from any
reasonable doubt but that it was a statement
voluntarily made.
Walsh, J. in his concurring Judgment,
again reiterated that the test was the effect
that the question produced on the Prisoner,
and not the intention or even the hopes of
the interviewer. The effect of the question
in this case was calculated to convey to the
applicant that his family would be left
undisturbed if he accepted responsibility.
D P.P. -v- Hoey. Supreme Court Henchy,
McCarthy, Walsh, JJ. (Griffin and
Henderman J.J. concurring) 16 December
[1987] I.R. 646.
M I CHAEL STAINES
CR I M I NAL PROCEDURE ACT 1967
Once an accused has bean sent forward
for trial, ha is not entitled to seek
depositions of any new prosecution
witness, whose Statement of Evidence
is not contained In the Book of Evidence.
At the Preliminary Examination of the
charges against him, the Accused had
called, on deposition, all of the witnesses
whose Statements were contained in the
Book of Evidence. He was then sent forward
to the Circuit Court for trial. Subsequently,
he was served with a Notice of Additional
Evidence, relating to evidence to be given by
several additional witnesses, whose
Statements had not been contained in the
Book of Evidence. The Accused claimed in
the course of the present proceedings that
he should be entitled to call these additional
witnesses on deposition. He also submitted
that where the Prosecution is or ought to be
aware that a certain person would be
required to give evidence, failure to disclose
the existence of that person to the Accused
at the Preliminary Examination stage, is, in
effect, a breach of the Criminal Procedure
Act 1967, and denies the right of the
accused to a meaningful Preliminary
Examination.
HELD by Barron J. that the obligation is on
the Prosecution to ensure that there is a
proper preliminary investigation of the
charges. He continued "If a material
witness, or material evidence, is not before
the Court, it is a question of degree whether
or not a real examination has taken place.
Where the Prosecution acts consciously and
deliberately to exclude some person or thing
at that stage, this might invalidate a return
for trial." However, in the present case, there
was nothing to indicate such conscious or
deliberate action. The preliminary
investigation could not be re-opened.
Accordingly, the Accused's contention
failed.
Gilligan -v- the D.P.P The High Court (per
Barron J.) 17 November 1987, unreported.
M I CHAEL STAINES
NEGOTIABLE I NSTRUMENTS
The giving of a cheque In discharge of
a debt may be conditional upon the
cheque being met.
The Defendant sold shares in the .
Insurance Company to the Plaintiff for
£400,000.00. The Plaintiff paid for these
shares by drawing a cheque for this sum on
its own account and handing it to the
Defendant, who endorsed it and handed it
back to the Plaintiff in discharge of certain
monies owed by the Defendant to the
Plaintiff. The Plaintiff, relying, inter alia, on
Marreco -v- Richardson [1908] 2 K.B. 584
argued that as the cheque was not met (due
to the intervention of the Registrar of
Friendly Societies) the original indebtedness
together with further interest was due.
HELD: It is an exception to the general
rule, that the giving of a cheque for a debt
is payment conditional on the cheque being
met, where the Drawer of the cheque and
the Creditor are one and the same person
and the cheque is drawn on the
Drawers/Creditors own account. In this case
the Defendant discharged his indebtedness
by endorsing and handing back to the
Plaintiff, the Plaintiff's own cheque which
it was held was accepted as unconditional
payment. In referring to the general role the
Court referred to the cases of Griffiths and
Owen 13 Mind W. 58 and Belshaw and Bush
11 C.B. 191.
Private Motorists Provident Society
Limited -v- Joseph Moore - High Court per
(Murphy J.) - 2 October 1987. [1988] ILRM
526.
LARRY BRENNAN
ROAD TRAFFIC ACTS
Me d i c al Bureau off Road Safety
Certificate - Section 22 and Section
23(2) Road IVaffic (Amendment) Act,
1978 - Whether Certificate was issued
in the prescribed form - Whether
Certificate should state on its face that
it was issued under Section 22 of the
Act.
The Respondent was arrested by the
Appellant under Section 49(6) of the Road
Traffic Act, 1961 and pursuant to the
provisions of the Act he provided a blood
specimen which was forwarded to the
Medical Bureau of Road Safety for analysis.
Subsequently, the Bureau issued a
document which specified the concentration
of alcohol in the specimen provided. This
document purported to be a Certificate in the
form prescribed by the Road Traffic
(Amendment) Act, 1978 (Part III)
Regulations, 1978. On foot of the document
the Defendant was convicted under Section
49 of the Road Traffic Act in the District
Court.
Section 22(3) of the Road Traffic Act,
1961 provides, inter alia, that as soon as
possible after they have determined the
concentration of alcohol in the specimen in
accordance with Sub-section 1 of the Act,: -
" . . . . the Bureau shall forward to the
Garda Station from which the specimen
analysed was forwarded a completed
Certificate in the form prescribed for the
purpose of this section . . . . "
Section 23(2) of the same Act provides as
follows: -
"A Certificate expressed to have been
issued under Section 22 shall, until the
contrary is shown, be sufficient evidence
of the facts certified to in it . . . . "
It was accepted in the District Court by the
Defendant that the Certificate was in the
form prescribed by the 1978 Regulations but
it was submitted that it did not comply with
the provisions of Section 23(2) of the Act
in that it was not expressed to have been
issued under Section 22 of the Act. It
contained a heading in heavy print which
read: -
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