452 / 462
GAZETTE
application under Article 40.4.2 must neces-
sarily transcend any procedural form for judi-
cial review or otherwise, and the High Court
judge has a jurisdiction to make speedy and,
if necessary, informal inquiries of the jailor or
detainer to ascertain the facts, even before
reaching a conclusion that a sufficient doubt
exists as to the legality of the detention; in the
instant case, because of the absence of any
inquiries and the unfortunate error made by
the High Court judge on 5 February 1992 that
the November 1990 sentence had been im-
posed in November 1991, the application
was converted into one for judicial review
with its consequent procedural delays; (3)
where, as in the instant case, the application
clearly raised the question of the validity of
the detention the conversion into judicial
review proceedings was inappropriate. Dicta
in
TheState(McDonagh) vFrawley
(1978] IR
131 explained; (4) while there was no bar to
the High Court remitting the applicant's case
to the District Court under 0.84, r.26(4) of
the 1986 Rules, it would not fairor just, in the
particular circumstances of the instant case
where the applicant was deprived by the
converting order of 5 February 1992 of what
appeared to be his immediate right to chal-
lenge his detention, that he be charged again
in respect of the offence in question, and the
Court would refuse to remit the case to the
District Court.
The State(Tynan) v Keane
[1968] IR 348 referred to.
Hong Kong and Shanghai Banking Corp v
Icarom pic (Meadows Indemnity Co Ltd,
Third Party) Supreme Court 31 July 1992
CONTRACT - CONDITION PRECEDENT - AGREEMENT
TO PROVIDE INDEMNITY OR INSURANCE IN RE-
SPECT OF A SECURED LOAN - SECURITY EFFECTED
PROVING INEFFECTIVE - WHETHER AGREEMENT TO
INDEMNIFY OPERATIVE - WHETHER CONTRACT OF
GUARANTEE OR OF INSURANCE
A Greek businessman, operating through a
Swiss company Amaxa SA, wished to finance
the purchase of an interest in a hotel in Corfu
involving a sum in the region of IR6 million.
Amaxa had been refused a loan by a number
of banks on the basis that inadequate security
was available. Amaxa was told that a Credit
Guarantee Insurance Agreement (CGI Agree-
ment) might be regarded as sufficient security
for the loan. The defendant company's gen-
eral manager in London (the defendant, then
being titled the Insurance Corporation of
Ireland pic) was approached with a view to
entering into such a CGI Agreement. He
brought the proposal to the third party, Mead-
ows, to which he acted as consultant, with a
view to re-insuring the CGI Agreement. Mead-
ows agreed to this, on condition that the loan
to Amaxa itself be properly secured. The
plaintiff bank (the bank) was then approached
to effect the loan to Amaxa, the bank requir-
ing the defendant to 'front' the CGI Agree-
ment, that is act as principal since it was not
satisfied that Meadows had sufficient capital
to take on the Agreement. The loan agree-
ment and the CGI Agreement were effected.
Shares in the Greek hotel were purportedly
transferred to the defendant to secure the
loan to Amaxa. The defendant later discov-
ered that it was not lawful under Greek law to
transfer shares in the hotel to a non-Greek
national. Amaxa defaulted on the loan agree-
ment, and the bank sought payment from the
defendant under the CGI Agreement. The
defendant repudiated liability on the basis
that the CGI Agreement was a contract of
insurance and that there had been non-dis-
closure of material information by the bank,
namely that the bank had been aware that the
transfer of shares in the hotel to a non-Greek
national was not lawful under Greek law.
The defendant also argued that it was entitled
to an indemnity from Meadows, but Mead-
ows submitted that since the defendant had
not effected security for the loan to Amaxa,
no indemnity arose. In the High Court,
Blayney J found for the plaintiff and that the
defendant was not entitled to claim an in-
demnity against Meadows:
International
Commercial Bank pic v Insurance Corpora-
tion of Ireland pic
(High Court, 19 October
1990). On appeal by the defendant on the
question of indemnity from Meadows HELD
by the Supreme Court (Finlay CJ, McCarthy
and O'Flaherty JJ) dismissing the appeal: (1)
it was probably accurate to describe the
agreement between the defendant and Mead-
ows as one in which Meadows agreed to
insure the defendant in respect of a loss that
might be sustained under the CGI Agree-
ment, which was in essence a contract of
guarantee; (2) however, whether the contract
between the defendant and Meadows was
one of guarantee or of insurance, the reality
of it was that the agreement to indemnify
arose if, and only if, the loan to Amaxa was
secured in the manner intended by the par-
ties; and since the loan had not been secured,
there was nothing on which the contract to
insure could operate, and thus the trial judge
had been correct in holding that the Mead-
ows agreement to insure was inoperative.
The People(D.P.P.) v Davis Supreme Court 9
December 1992
CRIMINAL LAW - TRIAL - JURY VERDICT - ACCUSED
PLEADING NOT GUILTY OF MURDER BUT GUILTY
OF MANSLAUGHTER - PLEA NOT ACCEPTED - TRIAL
JUDGE DIRECTING JURY TO ARRIVE AT VERDICT OF
GUILTY - CONSTITUTION - WHETHER DIRECTION
CONSISTENT WITH FUNCTION OF JURY TO GIVE
VERDICT - Constitution, Article 38.5
The accused was tried on a charge of murder
in the Central Criminal Court. He pleaded
not guilty to murder but guilty to manslaugh-
ter. This plea was not acceptable to the
prosecution, and a plea of not guilty was
entered. The evidence indicated that the
accused had consumed a large quantity of
alcohol on the day in question. He and a
friend, Brady, had become involved in a fight
and were being taken away from the fight,
against their will, by some companions. The
defendant got free and procured a knife
intending to attack the person who he be-
lieved had started the fight. He in fact stabbed
his friend Brady a number of times and Brady
died as a result. The trial judge directed the
jury that, as a matter of law, they could only
bring in a verdict of murder in the instant case
since the consumption of alcohol would not
in any way be regarded as a defence to the
murder charge such as would overturn the
presumption of an intention to kill or cause
serious injury as required by s.4 of the Crimi-
nal Justice Act 1964. The trial judge expressly
directed the jury to arrive at a verdict of guilty
of murder, which the jury did. On appeal by
the accused HELD by the Supreme Court
(Finlay CJ, Hederman, O'Flaherty, Egan and
Blayney JJ) allowing the appeal and directing
APRIL
1993
a retrial: (1) the right to a jury trial in Article
38.5 of the Constitution has as a fundamental
and absolutely essential characteristic the
right of the jury to deliver a verdict; (2) in the
interets of justice, however, the trial judge
has a right and duty to withdraw a case from
the jury and direct them to enter a not guilty
verdict where the judge is satisfied that a
verdict of guilty could not be supported;
however, there is no corresponding right or
duty to di rect a jury to enter a verdict of gu i Ity,
even in limited or exceptional circumstances
to prevent what might appear to be a preverse
verdict; (3) while such a situation might
appear anomolous, the mischief which would
flow from any invasion of the right of a jury to
consider and arrive at its verdict, and even to
arrive at what might seem to be a perverse
verdict, would be much greater than any
conceivable harm that could arise from the
i nabi I ity of the j udge to d i rect a gu i Ity verd ict.
Dicta in
deBurca v Attorney General
[1976]
IR 38 and
The People v O'Shea
[1983] ILRM
549; [1982] IR 384 applied.
Sweeney v Brophy and DPP Supreme Court
8 December 1992
CRIMINAL LAW - TRIAL - IMPROPRIETIES OF TRIAL
JUDGE DURING TRIAL - CONVICTION QUASHED
ON JUDICIAL REVIEW - WHETHER TRIAL IN DUE
COURSE OF LAW - WHETHER RETRIAL COULD BE
ORDERED - WHETHER DEFENDANT ENTITLED TO
PLEAD AUTREFOIS ACQUIT - Rules of the Superior
Courts 1986, 0.84, r.26(4) - Constitution, Article 38.1
The applicant had been convicted of assault
before the respondent Judge of the District
Court. The appl icant sought certiorari to quash
the verdict on the ground that a number of
improprieties had occurred during the hear-
ing of the case. The respondents did not
oppose the application for certiorari but
sought to have the matter remitted to the
District Court under 0.84, r.26(4) of thwe
1986 Rules. In the High Court ([1992] ILRM
479) Barron J declined to remit the case. On
appeal by the DPP HELD by the Supreme
Court (Finlay CJ, Hederman, O'Flaherty, Egan
and Blayney JJ) dismising the appeal: (1)
certiorari is an appropriate remedy to quash
not only a conviction bad on its face or where
a court or tribunal acts in excess of jurisdic-
tion but also where it acts apparently within
jurisdiction but where the proceedings are so
flawed as to deprive an accused of a trial in
due course of law; (2) where, as in the instant
case, there was a breach of the fundamental
tenets of constitutional justice in the hearing
or a failure to hear the evidence in the case,
the trial can properly be categorised as one
that has not been held in due course of law
and any resulting conviction should be
quashed so as to entitle the defendant to
plead autrefois acquit. Dicta in
The
State(Tynan) v Keane
[1968] IR 348 applied.
Dicta in
TheState (Holland) v Kennedy
[1977]
IR 193 discussed.
Hutch v Governor of Wheatfield Prison and
Ors High Court, 28 February 1992; Supreme
Court, 17 November 1992
CRIMINAL LAW- YOUNG PERSON - SUMMARY TRIAL
OF INDICTABLE OFFENCE - SENTENCE - WHETHER
COURT CONFINED TO IMPOSING SENTENCE OF
THREE MONTHS - STATUTORY INTERPRETATION -
GENERALIA SPECIALIBUS NON DEROGANT -
WHETHER LATER GENERAL ACT REPEALED BY IMPLI-
CATION EARLIER SPECIFIC ACT - Summary Jurisdiction
Over Children (Ireland) Act 1884, ss.5, 9 - Children Act
2