The Gazette 1961

Mr. Justice Kingsmill-Moore in his judgment said

that the plaintiffs, faced with this difference in

opinion among their workmen, had adopted a

course which seemed to him not only legal, but

unexceptional on any ethical standard, and entirely

commendable. He was of opinion that Mr. Justice

Budd (who had given the High Court judgment) had

been correct in holding that the picketing was illegal

unless it had been conducted in furtherance of a

trade dispute.

The first step in the constitutional argument of

the plaintiffs was to show that the Constitution

guaranteed the right of a citizen not to join an

association or union if he did not wish.

The

Constitution did not give a guarantee in express

terms that a citizen should not be coerced into

joining a union, but he thought that it did so by

necessary implication.

Moreover, he thought that the right to form

associations or unions was the only intelligible way

there was of expressing an explicit right to abstain

from joining such association or union.

The

Constitution implicitly guarantees the right of a

person not to be coerced. He would dismiss the

appeal.

Mr. Justice

Dalaigh agreed with the judgment

of Mr. Justice Kingsmill-Moore.

Mr. Justice Haugh said he was of opinion that the

appeal should be disallowed and that the injunction

should stand.

Contract—mistake—non estfactum. (Cty. Ct.~)

In Kirsh

Finger (September 25, 1961) K. sued F.

for rent due under a hiring agreement. F. pleaded

that he had signed the agreement in the mistaken

belief, induced by K.'s misrepresentation, that it was

a hire-purchase agreement. Judge Baxter held,

inter

alia,

that F.'s mistake was as to the contents and not

the nature of the document (following Howatson

Webb (1908) i Ch. i) and that the defence

of non est

factum

therefore failed.

Criminal law—corroboration—accomplice.

In the People (Att. Gen.)

Shaw (1960) I.R.

168, where the accused was convicted on four out

of eleven counts in an indictment, the Court of

Criminal Appeal held that where there is evidence

capable of being regarded as being corroborative of

an accomplice's evidence and some but not all the

counts in the indictment, the trial judge should in

dicate to the jury the counts on which there is no

evidence capable of being regarded as corroborative.

Further, on a count of receiving a typewriter, the jury

were entitled to treat evidence that the accused sold

it within a few days of its being stolen as corrobora

tion of the evidence of the accomplice. The Court's

decision was given by Maguire C. J. Davitt P., and

McLoughlin J. ; the trial judge was Teevan J.

Criminal law—confession.

In the People (Att. Gen.)

Ainscough (1960) I.R.

136, the evidence against the accused, who was

charged with shopbreaking and larceny and was

unrepresented, consisted almost entirely of a state

ment which he was alleged to have made to a

detective officer. On being informed by the trial

judge of his right to do so, the accused, during the

absence of the jury, challenged the statement on the

ground that it had been procured by an inducement

held out by the detective officer. The trial judge ruled

that the statement was admissible but on the return

of the jury did not inform the accused of his right to

challenge the statement on cross-examination on the

ground on which he had challenged it during the

jury's absence. On an application by the accused for

leave to appeal, the Court of Criminal Appeal in Eire

held that the failure of the accused to cross-examine

the detective officer in the presence of the jury as to

the manner of the taking of the statement may have

misled the jury as to the weight to be attached to the

objection to the admission of the statement. A new

trial was ordered. The court's decision was given by

Maguire C. J. Davitt P., and McLoughlin J.; the

trial judge was Dixon J.

Insanity

—

automatism—whether question for jury.

The issue of automatism should only be left to the

jury where the defence has laid a proper foundation

for so doing by producing positive evidence of it;

if, however, the defence succeeds in laying such a

foundation then the onus is on the prosecution to

prove intent. But where the alleged automatism is

based solely on a defect of reason from disease of the

mind within the M'Naughton Rules, and that cause

is rejected by the jury, there is no room for the

alternative defence of automatism.

Per Lord Denning :

" The old notion that only

the defence can raise a defence of insanity is now

gone. The prosecution are entitled to raise it and it is

their duty to do so rather than allow a dangerous

person to be at large."

Per Lord Denning, further : " It seems to me that

any mental disorder (including epilepsy or cerebral

tumour) which has manifested itself in violence and

is prone to recur is a disease of the mind for the

purpose of the M'Naughten Rules."

The appellant was convicted ofmurder in Northern

Ireland in spite of three defences, namely that at the

time of the killing he was in a state of automatism

because suffering an attack of psycho-motor epilepsy,