The Gazette 1993

GAZETTE

SEPTEMBER 1993

to indicate that any irregularity had oc-

curred in this respect.

R. v Prime

(1973) 57

Cr App Rep 632 referred to; (3) the trial

judge had not acted in breach of s.25 of the

1984 Act in informing the jury that, suffi-

cient time having elapsed, he could accept

a majority verdict, and upon being then

informed by the jury that they had reached

a 10 - 2 majority verdict, accepting that

verdict.

Per curiam:

it might be better, how-

ever, where the trial judge applies s.25 of

the 1984 Act and where the judge is there-

upon informed that a majority verdict has

been reached, for the jury to be asked to

retire for a further short time to consider the

matter in private; (4) the sentence of 6 years

may not have reflected the acquittal of the

defendant on the most serious charge, and

in the circumstances it would be reduced to

4 years, to run from the date of the offences

and his arrest.

Minister for Agriculture and Food v Cahill

High Court 12 November 1992

CRIMINAL LAW - TRIAL - PROCEDURE - CONTROL OF

PESTICIDES - DEFECT IN PROOF CONCERNING PROD-

UCT SAMPLES ALLEGED TO CONTAIN PROHIBITED

PESTICIDE - SEPARATE EVIDENCE THAT DEFENDANT

ADMITTED USING PROHIBITED PESTICIDE - Euro-

pean Communities (Classification, Packaging and Label-

ling of Pesticides) Regulations 1981 - European Commu-

nities (Classification, Packaging and Labelling of Pesti-

cides) (Amendment) Regulations 1985, Reg.13 - Euro-

pean Communities (Classification, Packaging and Label-

ling of Pesticides) (Amendment) Regulations 1987

The defendant was charged by the prosecut-

ing Minister in the District Court with of-

fences alleging that he used on a product a

pesticide containing a prohibited substance,

contrary to the 1981 Regulations, as

amended. The prosecution sought to intro-

duce in evidence results from samples which

had been taken from products under the

control of the defendant. The statutory re-

quirements concerning the taking of such

samples, laid down in Reg.13 of the 1985

Regulations as amended by the 1987 Regu-

lations, had not been complied with and the

results were therefore deemed inadmissible

by the District Judge. Other evidence given

for the prosecution was to the effect that the

defendant had admitted that he had used a

pesticide containing a prohibited substance.

The District Judge concluded that, as the

product sample had been taken in breach of

the 1985 Regulations, the case should be

dismissed. On case stated HELD by

O'Hanlon J: (1) the 1981 Regulations, as

amended, did not lay down as a condition

precedent to a conviction that any samples

taken must be proved in the manner pre-

scribed by the Regulations, and there was

the possibility that even where the sample

evidence is rejected the defendant may be

convicted on other evidence; (2) in the

instant case, the District Judge had been

correct to rule out evidence of the samples,

but he should have proceeded to consider

whether on the remaining evidence it was

open to convict the defendant on the charges

brought, and accordingly the case would be

remitted to the District Court to deal further

with the charges.

In re Murphy Courts • Martial Appeal Court

17 November 1992

DEFENCE FORCES - MILITARY LAW - COURT - MAR-

TIAL - OFFICER OF CHOICE TO DEFENCE - WHETHER

GRANTED - Rules of Procedure (Defence Forces) 1954,

Art.20(3)

The accused, a Private in the Irish Army, had

been charged with desertion. Prior to his

Court - Martial, he had requested that he be

defended by one Captain Milner, but he was

unavailable. The accused was informed by

the Convening Authority that another of-

ficer, Captain White, was available. The

accused asked the Convening Authority to

ask Capta i n Wh ite if he was wi 11 i ng to act for

him. Captain White agreed to act for the

accused. The Convening Authority subse-

quently served on the accused a copy of the

charge sheet, and under Art.20(3) of the

1954 Rules asked the accused if he wished

to be represented by a particular officer or if

he wished the Convening Authority to as-

sign an officer. In reply, the accused gave

Captain White's name. Art.20(3) requires

the Convening Authority to assign a suitable

officer if requested to do so by an accused.

At his Court - Martial, the accused pleaded

guilty to being absent without leave, and

this plea was accepted. He was ordered to

be discharged from the Defence Forces. On

appeal HELD by the Courts - Martial Appeal

Court (Blayney, Lynch and Lavan JJ) dis-

missing the appeal: (1) the Convening Au-

thority had not acted in breach of Art.20(4)

of the 1954 Rules since although the ac-

cused's original choice of officer was una-

vailable, the Convening Authority had not

been requested to assign an officer to the

accused, but rather the accused had re-

quested that Captain White act for him.

The

State(Freeman) v Connellan

11987] ILRM

470 distinguished; (2) the Court had, pursu-

ant to s.17 of the 1983 Act, taken into

account additional evidence by the accused

that he had been subjected to violence by

his wife, and that he had feared that she

might become violent to their children and

that this had led him to stay in England with

his children, but even if the Court - Martial

had had this evidence available to it, it was

unlikely that it would have affected its deci-

sion.

TV 3 Television Co Ltd and Ors v Independ-

ent Radio and Television Commission High

Court 4 May 1992

JUDICIAL REVIEW - FAIR PROCEDURES - AWARD OF

TELEVISION FRANCHISE BY STATUTORY BODY TO

CONSORTIUM - WHETHER CONDITIONAL ON PRO-

VISION OF DETAILED FINANCIAL INFORMATION BY

CONSORTIUM - WITHDRAWAL OF FRANCHISE -

WHETHER STATUTORY BODY REQUIRED TO ACT

JUDICIALLY - Radio and Television Act 1988, ss.4,6,14

The respondent, the Independent Radio and

Television Commission, was established by

the 1988 Act with a view, inter alia, to

entering into a contract with some person or

persons for the provision of a television

programme service. Having examined a

number of proposals, the Commission de-

cided in April 1989 to award the franchise to

operate an independent national TV chan-

nel to what was known as the Windwill

consortium, represented by the applicants.

This decision was stated in the Commis-

sion's minutes to be 'subject to suitable

contracts being negotiated.' After this deci-

sion, the consortium found that technical

transmisison problems and the extent of the

revenue earning capacity of Radio Telefis

Eireann (RTE) placed serious impediments

in establishing an effective national TV chan-

nel. These were addressed by the Broad-

casting Act 1990, which permitted the op-

erators of the independent TV channel to

use independent transmission equipment

and also placed new advertising limits on '

RTE. In consequence, the consortium sub-

mitted a revised business plan to the Com-

mission in April 1991. In June 1991, at a

meeti ng with the Commission, it was agreed

that the consortium provide the Commis-

sion by the end of August 1991 with precise

information on the identity and extent of the

investors in the consortium, whose mem-

bership had altered since 1989. After this

meeting the consortium became aware that

the Department of Communications was

undertaking a review of the 1990 Act, and

that the advertising limits on RTE might be

removed. The consortium was unable to

obtain precise information from the Depart-

ment, and informed the Commission that

arising from this it was unable to provide the

financial information requested in the June

meeting. The Commission deferred any de-

cision on the effect of this, but in October

1991, the Commission communicated to

the consortium its decision to withdraw,

with immediate effect, what it described as

the conditional offer of the TV franchise.

The applicants sought judicial review of this

decision. HELD by Blayney J granting cer-

tiorari of the decision: (1) s.6 of the 1988 Act

required the Commission to award the con-

tract for a television programme service to

the most suitable applicant, having regard

to the criteria set out in s.6; and once it had

done so, all that remained was for the actual

terms of the contract to be negotiated with

the applicant and to enter into that contract

forthwith under s.4 of the 1988 Act; there

was no obligation on the Commission to

make any further investigations into the

applicant since in the event that misleading

information was provided to it, it could

withdraw a contract under s.14 of the Act;

(2) while it was difficult to categorise the

relationship between the Commission and

the consortium in the period April 1989 to

October 1991, it probably fell short of a

contractual relationship; when viewed

against the background of the 1988 Act, the

decision in April 1989 undoubtedly consti-

tuted a promise by the Commission to enter

into a contract with the consortium, and the

decision in October 1991 amounted to a

unilateral cancellation of the April 1989

promise; (3) in making these decisions, the

Commission was exercising an administra-

tive function created by statute and was

obliged to act in accordance with the prin-

ciples of constitutional justice; and since the

Commission did not give notice of its inten-

tion to cancel its April 1989 decision, or

give any prior notice of its reasons or give

the applicants an opportunity to be heard,

the decision should be quashed. Dicta in

Fast Donegal Co- Op Ltd v Attorney Gen-

eral

[19701 IR 317 and

O'Brien v Bord na

Mona

[1983] ILRM 314; [1983] IR 255

applied.

OToole v Heavey Supreme Court 17 De-

cember 1992

PRACTICE - ACTION - APPLICATION FOR NON - SUIT

AT END OF PLAINTIFF'S EVIDENCE - TRIAL JUDGE

GRANTING APPLICATION - Wi IETHER CORRECT TEST

APPLIED

The plaintiff instituted proceedings in negli-

gence against the defendant, a dental sur-