The Gazette 1991

GAZETTE

JANUARY/FEBRUARY 1991

incapacity of one person by reason of

impotence; and that in developing the law

of nullity under the general provisions of s.13

of the 1870 Act, the courts were not con-

fined to advances in psychiatric medicine but

were also entitled to take account of ad-

vances in knowledge and understanding of

human affairs in general. Dicta in

S. -v- S.

[1976-7] ILRM 156 and

N.IKI -v- K.

[1986]

ILRM 75; [1985] IR 733 discussed and

followed.

R.SJ.

-v-

J.SJ

[1982] ILRM 263

and

D. -v- C.

[1984] ILRM 173 approved; (2)

on the evidence adduced the only inference

which the trial judge could arrive at was that

the respondent in the instant case was, by

virtue of his homosexual nature, incapable

of maintaining a normal marital relationship

and that therefore the marriage was a nullity.

Fter curiam:

since the issue whether the onus

of proof required in nullity cases did not arise

in the instant case, the Court would express

no view as to whether it could in any parti-

cular case be connected with the grounds

on which a decree of nullity should be

granted.

McGRATH -v- GARDA COMMISSIONER

SUPREME COURT 17 JULY 1990

GARDA SIOCHANA - DISCIPLINE - CON-

DUCT PREJUDICIAL TO DISCIPLINE AND

LIKELY TO BRING DISCREDIT TO FORCE -

GARDA CHARGED AND ACQUITTED OF

CERTAIN CRIMINAL CHARGES

WHETHER APPEARANCE AND ACQUITTAL

IN CRIMINAL COURT SUFFICIENT TO

JUSTIFY DISCIPLINARY CHARGE -

CORRUPT OR IMPROPER PRACTICE -

WHETHER GARDA COMMISSIONER

ENTITLED TO REOPEN MATTERS DETER-

MINED IN CRIMINAL COURT - FAIR

PROCEDURES - Garda Siochana (Dis-

cipline) Regulations 1971, Reg. 9.

The applicant member of the Force had been

charged with offences under the Larceny Act

1916 in connection with payments made to

him in discharge of court orders imposing

fines. The applicant admitted that he had not

issued official receipts for any of the pay-

ments, thus leaving the persons who had

paid their fines to him liable to imprisonment.

The applicant was returned for trial before

the Circuit Criminal Court, but he was

acquitted on all counts. Subsequent to his

acquittal, he was served with notices under

Reg. 9 of the 1971 Regulations stating that

he might have been in breach of discipline

as a result of being charged with criminal

offences and of appearing before the District

Court and the Circuit Criminal Court. He was

then served with detailed forms setting out

the alleged breaches of discipline. The first

three breaches were of conduct prejudicial

to the Force, the particulars being the

appearances in the District Court and Circuit

Criminal Court. The other three breaches

alleged were of corrupt or improper practice,

the particulars alleging failure to account for

the sums of money received by him in the

course of his duty which had been the

subject matter of the criminal charges. The

applicant applied for judicial review seeking

to prohibit the holding of an inquiry into the

alleged breaches of discipline In the High

Court, Lynch J acceded to the application

in part: [1990] ILRM 5; [1989] IR 241. On

appeal by the Commissioner HELD by the

Supreme Court (Finlay CJ, Griffin,

Hederman, McCarthy and O'Flaherty JJ)

dismissing the appeal: in the circumstances

of the case it would amount to an unfair

procedure for the Commissioner to proceed

with a disciplinary hearing alleging corrupt

or improper practices after essentially the

same issues which would arise at such

hearing had been fully heard and determined

by a court of competent jurisdiction.

Semble:

a charge of improper practice could proceed

under the 1971 Regulations.

Par curiam:

view would be expressed as to whether the

doctrine of res judicata applied in the instant

case.

Kelly -v- Ireland

[1986] ILRM 318

referred to.

KEAT I NG

-v-

GOVERNOR

MOUNT JOY

PR I SON

SUPREME

COURT 10 JULY 1990

CRIMINAL LAW - PROCEDURE -

DISTRICT COURT - REMAND IN CUSTODY

DEFENCE SOLICITOR RAISING

LEGALITY OF ACCUSED'S DETENTION IN

GARDA CUSTODY - DISTRICT JUSTICE

DECLINING TO ENTER INTO QUESTION -

WHETHER REMAND VALID - Criminal

Procedure Act 1967 — Criminal Justice Act

1984, s.4 - Constitution, Article 40.4.

The applicant was arrested in connection

with larceny charges and was then detained

in custody under s.4 of the 1984 Act, during

which time he was alleged to have made

certain statements to the Gardai relating to

the offences. At the remand hearing in the

District Court, held under the 1967 Act, his

solicitor raised the legality of the applicant's

detention in Garda custody under s.4 of the

1984 Act as a ground for refusing to remand

the applicant in custody. The District Justice

declined to enter into the question of the

validity of the applicant's detention under

the 1984 Act, and proceeded to remand him

in custody. The applicant sought an inquiry

under Article 40.4 of the Constitution into

the legality of his detention on foot of the

remand order of the District Court. In the

High Court, Barrington J dismissed the

application for release on the ground that it

was irrelevant to the validity of the remand

order whether the applicant was lawfully or

unlawfully before the District Court: [1989]

IR 286. On appeal by the applicant HELD

by the Supreme Court (Finlay CJ, McCarthy

and O'Flaherty JJ) dismissing the appeal it

would be wholly inconsistent with the role

of the High Court under Article 40.4 of the

Constitution for the District Court to enter

into an inquiry into the validity of the

detention of a person appearing before the

Court under the 1967 Act; and the District

Justice in the instant case had taken the

correct course of remanding the applicant

in custody and thus facilitating any

application under Article 40.4 which he

might be advised to take.

Par

O'Flaherty J

(concurring): issues of the kind raised in the

instant case are more properly raised in the

context of the admissibility of evidence.

McNALLY -v- O MAOLDOMHNA I GH

SUPREME COURT 29 JUNE 1990

REVENUE - INCOME TAX - INVESTMENT

ALLOWANCES - DESIGNATED AREA -

PLANT AND EQUIPMENT - WHETHER

EXCLUSIVE USE IN DESIGNATED AREA

REQUIRED - PLANT HIRE - WHETHER

CAPABLE OF ATTRACTING ANY ALLOW-

ANCE - Industrial Development Act 1869,

s.33 - Finance Act 1971, s.22.

The taxpayer carried on business as a plant

hire contractor in County Monaghan, a

designated area for the purposes of claiming

investment allowances for machinery and

plant pursuant to s.22 of the 1971 Act. The

1971 Act referred expressly to the-acheme

of designated areas contained in the 1969

Act, which was intended to encourage

industrial activity in certain areas by the

provision,

inter alia,

of grants for investment

in those areas designated by the Mineiter for

Industry and Commerce. The taxpayer had

purchased a crane, with a value of over

£100,000, which he then let out on hire, and

it was agreed that for 94% of the time it was

used in a designated area. The inspector of

taxes took the view, however, that exclusive

use in a designated area was required to

qualify for relief under s.22, and this was

upheld by the Circuit Court and High Court:

[1989] ILRM 688. On further appeal HELD

by the Supreme Court (Finlay CJ, Hederman

and O'Flaherty JJ) allowing the appeal: (1)

in providing that the investment allowance

was to be for plant and equipment 'provided

for use' in a designated area, s.22 of the

1971 Act did not unambiguously indicate

that it applied only where plant was used

exclusively in a designated area, as had been

argued by the Revenue; and in such

•circumstances the Court was required to

examine the overall purpose of the section;

(2) by the use of a direct reference to the

designated areas provisions in the 1969 Act,

the 1971 Act had clearly and unequivocally

identified its objective as intended to further

and support the objectives of s.33 of the

1969 Act; and having regard to the evidence

that the plant was used in a designated area

for 94% of the time and that the taxpayer

exclusively employed persons from designa-

ted areas in connection with the use of the

plant, the taxpayer was entitled to the

allowance in question. Quaere: whether the

High Court judge had been correct in ex-

pressing the view that plant hired out by the

taxpayer could fall within s.22, even if used

exclusively in a designated area.

THE PEOPLE (D.P.P.) -v- O'TOOLE AND

HICKEY COURT OF CRIMINAL APPEAL

20 JULY 1990.

CRIMINAL LAW - EVIDENCE - ARREST

- DETENTION IN GARDA CUSTODY -

WHETHER NECESSARY FOR THE PROPER

INVESTIGATION OF OFFENCE - MEMBER

IN CHARGE - WHETHER HAVING

SUFFICIENT MATERIAL TO REACH CON-

CLUSION AS TO NECESSITY OF DE-

TENTION - DETAINED PERSON MAKING

STATEMENT ADMITTING INVOLVEMENT IN

CRIME - WHETHER PERSON SHOULD BE

BROUGHT IMMEDIATELY BEFORE COURT

- WHETHER EXTENSION ORDER FOR

FURTHER DETENTION MAY BE MADE -

WHETHER DETENTION FOR PURPOSE OF

HOLDING IDENTIFICATION PARADE

PERMISSIBLE - WHETHER DIRECTOR OF

PUBLIC PROSECUTIONS MAY BE CON-

SULTED AS TO WHETHER TO PREFER

CHARGES - MURDER - COMMON

DESIGN - WHETHER ESTABLISHED -

Criminal Justice Act 1984, s.4.

The applicants were convicted of murder in

the Central Criminal Court. They had been

arrested at common law on suspicion of

murder and brought to a Garda station. On

arrival, they were detained pursuant to the

provisions of s.4 of the 1984 Act. The

member in charge of the. station had been

informed earlier that morning by the

arresting Gardai that they intended to pro-

ceed with search warrants to the houses