The Gazette 1993

GAZETTE

JULY/AUGUST 1993

Recent Irish Cases

Compiled by Raymond Byrne, BCL, LLM, BL, Lecturer in Law,

Dublin City University.

The following case summaries have been reprinted from the

Irish Law

Times and Solicitors Journal

w i th the kind permission of the publishers.

O'Callaghan v Attorney General High

Court, 22 May 1992; Supreme Court, 25

February 1993

CONSTITUTION - TRIAL OF OFFENCES - MAJORITY

JURY VERDICT - WHETHER CONSISTENT WITH TRIAL

IN DUE COURSE OF LAW - WHETHER TIME LIMIT ON

MAJORITY VERDICT CONSTITUTING INTERFERENCE

WITH DECISION-MAKING PROCESS OF JURY -

WHETHER JURY DECISIONS ENJOY ABSOLUTE CON-

FIDENTIALITY - Criminal Justice Act 1984, s.25 - Consti-

tution, Article 38.5

The plaintiff had been tried in the Circuit

Criminal Court on charges of larceny and

robbery and was convicted by a 10 to 2

majority of the jury. His appeal to the Court

of Criminal Appeal was unsuccessful:

The

People v O'Callaghan

(Court of Criminal

Appeal, 30 July 1990). He then instituted

the present proceedings claiming that s.25

of the 1984 Act, which permits majority jury

verdicts provided that at least 10 members

of the jury are agreed on the verdict, was

repugnant to Article 38.5 of the Constitu-

tion. In the High Court HELD by Blayney J

dismissing the claim: (1) as s.25 of the 1984

Act had been enacted since the adoption of

the Constitution, the plaintiff undertook a

heavy burden of establishing that it was

clearly repugnant to the Constitution. Dicta

Pigs Marketing Board v Donnelly Ltd

[1939] IR 413 and In re the Offences against

the State (Amendment) Bill 1940 [1940] IR

470 applied; (2) the essence of trial by jury

was that a decision as to the guilt or inno-

cence of the accused is made by a group of

fellow citizens and not by a judge or judges;

but unanimity was not an essential feature of

trial by jury under Article 38.5 and a verdict

was no less one of the jury where arrived at

by a substantial majority of the jurors; how-

ever, the extent of the majority was impor-

tant and if it was substantially lowered it

might lose the character of being a decision

of the jury, but s.25 of the 1984 Act, which

required a decision by at least 10 jurors

maintained the substantial majority required

by the Constitution. Dicta in

de Burca v

Attorney General

(1976] IR 38 and

Apodaca

v Oregon,

506 US 404 (1972) applied; (3)

the requirement in s.25 of the 1984 Act that

the jury must have deliberated for 2 hours

before reaching a majority verdict did not

constitute an interference with jury delib-

erations, the basis for its decision continu-

ing to be the evidence given at the trial. On

appeal HELD by the Supreme Court (Finlay

CJ, Hederman, O'Flaherty, Egan and Costello

JJ) dismissing the appeal and the plaintiff's

claim: (1) the essential feature of a jury trial

was to interpose between the accused and

the prosecution a reasonable cross-section

of people acting under the guidance of a

judge, who would bring their experience

and common sense to bear on resolving the

issue of the guilt or innocence of the ac-

cused, and a requirement of unanimity was

not essential to this purpose. Dicta in

Burca v Attorney General

[1976] IR 38 and

The People v O'Shea

[1983] ILRM 549;

[1982] IR 384 applied; (2) the provision of

majority verdicts had the advantage for both

the accused and the prosecution of reduc-

ing the chances of disagreement; and suffi-

cient time was provided in the 1984 Act for

a minority to win others over to their point

of view, and indeed this constituted a pro-

tection and could not be regarded as an

i nterference with the decision-making proc-

ess of the jury; (3) the trial judge had also

been correct in stating that a decision might

lose its character of being a decision of the

jury if the majority required was substan-

tially reduced, but s.25 of the 1984 Act

could not be impugned on this ground; (4)

jury deliberations should always be regarded

as completely confidential and should not

be published after the trial, but s.25 did not

breach this requirement since it was con-

cerned only with the verdict and not with

the deliberations of the jury. Dicta in The

People v Longe 11967] IR 369 approved.

Attorney General v Mr Justice

Hamilton

[1993] ILRM 81 referred to.

Phonographic Performance (Irl) Ltd v

Chariot Inns Ltd High Court 7 October

1992

COPYRIGHT - LICENCE SCHEME - DISPUTE BETWEEN

PARTIES TO LICENCE SCHEME - REFERENCE TO CON-

TROLLER OF INDUSTRIAL AND COMMERCIAL PROP-

ERTY - WHETHER LICENSOR ENTITLED TO REMU-

NERATION PENDING RESOLUTION OF DISPUTE -

INJUNCTION - INTERLOCUTORY - WHETHER

STATEABLE CASE MADE OUT - WHETHER MORE

DAMAGE LIKELY BY REFUSAL THAN BY GRANTING

RELIEF - BALANCE OF CONVENIENCE - Copyright Act

1963, ss.17, 31, 32

The plaintiff company, PPI, was incorpo-

rated by Irish recording companies in order

to protect the copyright in connection with

the public performance and broadcasting of

the recording companies' records, tapes

and CDs. S. 17 of the 1963 Act provides that

the playing in public of any recording con-

stitutes a copyright infringement where this

is done without the payment of 'equitable

remuneration' to the copyright owner. In

accordance with s.29 of the 1963 Act, PPI

had published a 'licence scheme' setting

down a schedule of payments for various

types of public broadcast of Irish recordings.

The defendant company operated a large

licensed premises which included a disco,

and agreed that some payment was due to

PPI under s.17 of the 1963 Act. It was in

d ispute, however, as to the amou nt i nvolved

and referred the dispute to the Controller of

Industrial and Commercial Property pursu-

ant to s.31 of the 1963 Act. Where a dispute

is thus referred under s.31, persons broad-

casting or otherwise using the copyright

material will not be deemed to infringe the

copyright provided they give an undertak-

ing to pay the amount determined by the

Controller. Such an undertaking had been

given by the defendant. PPI argued that only

a reference under s.32 of the 1963 Act could

be made, since s.31 was limited to disputes

concerning 'published' material, whereas

the defendant company also wished to dis-

pute the rate of equitable remuneration on

future recordings. PPI instituted proceed-

ings seeking to prevent the defendant from

broadcasting material in breach of copy-

right, and then applied for interlocutory

relief. The defendants pointed out that simi-

lar disputes on remuneration had also been

referred to the Controller by other parties

and the Controller had decided that he had

jurisdiction to hear the references under

s.31 of the 1963 Act. PPI had sought judicial

review of this decision (see

Phonographic

Performance (Irl) Ltd v Controller of Indus-

trial and Commercial Property,

High Court,

19 October 1992, below) but, at the time of

the instant application, judgment in the

judicial review proceedings had not been

delivered. HELD by Keane J granting the

interlocutory relief sought: (1) it would not

be appropriate to adjourn the instant appli-

cation until judgment had been delivered in

the judicial review proceedings; (2) it was

clear that the issues at stake between the

parties involved difficult questions of law;

(3) the balance of hardship between grant-

ing or refusing the relief sought lay in favour

of the plaintiff, since it was likely that if the

relief sought was refused other disco opera-

tors would be advised to take the same

course as the defendant in the instant case,

and the plaintiff would therefore be unable

to recover all sums due to it having regard to

the changing nature of the disco business;

whereas if the defendant was ultimately

successful it would be able to enforce the

plaintiff's undertaking to pay damages; and

wh i le the defendant wou Id be al most whol ly

inhibited from operating its disco, it would

still be able to operate its licensed premises.

Per

Keane J: if the question of the balance of

convenience had arisen for decision, it would

lay in favour of granting the interlocutory

relief also.

Phonographic Performance (Irl) Ltd v Con-

troller of Industrial and Commercial Prop-

erty and Ors High Court 19 October 1992