The Gazette 1991

GAZETTE

JANUARY/FEBRUARY 1991

which they knew to be occupied by the

applicants. Before the expiration of the initial

six hour period of detention under s.4 of the

1984 Act, the applicants made statements

indicating their participation in the rQbbery

of the deceased person. The Gardaf con-

sulted the Director of Public Prosecutions

who indicated that they should not be

charged with murder at that stage. A further

six hour period of detention of the applicants

was ordered under s.4 of the 1984 Act. The

investigating Gardaf then arranged for an

identification parade at which the applicants

were identified. A-further statement was

made by one of the applicants during the

second period of detention. Evidence was

also given at the trial of statements from the

applicants as to whether there had been a

common design between them to murder

the deceased or to rob him only. HELD by

the Court of Criminal Appeal (Hederman,

Egan and Johnson JJ) dismissing applica-

tions for leave to appeal: (1) in order to justify

a detention under s.4 of the 1984 Act, the

member in charge of a Garda station must

have an independent bona fide belief that the

person who had arrived in custody is a

person who should be detained by the

member in charge for a period not exceeding

six hours from the time of the arrest as a

necessary part of the proper investigation of

the offence for which the person was

brought to the statioo; such independent

opinion can be formed as a result of infor-

mation given to the member in charge, either

prior to the arrest or even when the arrested

person is brought to the station; and the

evidence in the instant case indicated that

the member in charge had reasonable

grounds for believing that the applicants'

detention was necessary for the proper

investigation of the offence of murder and

was thus entitled to exercise the powers

conferred on him by s.4 of the 1984 Act; (2)

the Gardai had acted properly in contacting

the Director of Public Prosecutions to seek

advice as to whether they should charge the

applicants with murder after they had made

their statements admitting involvement in

the robbery of the deceased; (3) the Gardai

had acted correctly in deciding to hold an

identification parade rather than charging

the applicants immediately after they had

made their statements, since the obtaining

of statements was only part of an investi-

gation of an offence, and the Gardai had

been entitled to extend the period of

detention of the applicants under s.4 of the

1984 Act for a further period of six hours

for the purposes of facilitating the identi-

fication parade; and while the courts must

ensure strict compliance with the terms of

s.4, there was full compliance with its terms

in the instant case; (4) the trial judge was

entitled to exercise his discretion to admit

a second statement by one of the applicants

on the evidence before him; (5) the trial

judge had correctly directed the jury on the

mental and physical elements required to

establish a common design by both

applicants to murder the deceased.

STROKER -v- DOHERTY AND OR8

SUPREME COURT 26 JULY 1990

GARDA SIOCHANA - DISCIPLINE -

CONDUCT PREJUDICIAL TO DISCIPLINE -

MEMBER IN PUBLIC HOUSE - LEWD

COMMENTS - FAILURE TO ASSIST WIFE

TO LEAVE PUBLIC HOUSE AT CLOSING

TIME -RURAL COMMUNITY - WHETHER

RELEVANT TO WHETHER DISCIPLINARY

OFFENCE COMMITTED -WHETHER

RELEVANT TO PENALTY IMPOSED -

DISMISSAL FROM FORCE - Garda

Siochana (Discipline) Regulations 1971,

Reg. 6.

The applicant had been a member of the

Garda Siochana for 14 years when he was

involved in an incident in a public house in

the rural locality in which he was stationed.

It was alleged,

inter alia,

that he made lewd

remarks to an acquaintance in relation to his

(the applicant's) wife; and that when the

licensee of the premises called for the

applicant's wife to leave the premises at

closing time the applicant failed to assist his

wife to leave the premises. The applicant

was charged with a number of disciplinary

offences under Reg. 6 of the 1971 Regula-

tions, being alleged to be conduct prejudicial

to the Force, but after a disciplinary inquiry

under the regulations and an appeal to an

Appeal Board, he was ultimately only con-

victed in relation to the lewd comments and

the failure to assist his wife to leave the

licensed premises. The Appeal Board re-

commended dismissal from the Force and

this was implemented by the Garda Com-

missioner. On judicial review, seeking to have

the convictions and dismissal set asida

inter

alia

for unreasonableness Barron J granted

the relief sought: [1989] ILRM 428; [1989]

IR 440. On appeal by the respondent Com-

missioner HELD by the Supreme Court

(Finlay CJ, Griffin and McCarthy JJ) allowing

the appeal: (1) the decision of the Appeal

Board could not be said to have been un-

reasonable in the sense of being contrary to

reason or common sense and in that light

it should not be quashed; (2) like con-

siderations applied to the penalty chosen by

the Appeal Board under the 1971

Regulations, and the courts should be

reluctant to interfere with a matter peculiarly

appropriate for determination by the Gardaf

themselves under the Regulations; and in

those circumstances the penalty imposed

should not be quashed. Dicta in

The State

(Keegan) -v- Stardust Victims Compensation

Tribunal

[1987] ILRM 202; [1986] IR 642

applied.

TAYLOR -v- SMYTH, KAPE INVEST-

MENTS LTD AND ORS SUPREME

COURT 6 JULY 1990

CONTRACT - REPUDIATION - DELAY IN

COMPLETION OF COMPROMISE OF

ACTION - WHETHER UNREASONABLE

DELAY - WHETHER JUSTIFYING RE-

PUDIATION - WHETHER REPUDIATION

CONSTITUTED BREACH OF CONTRACT -

COMPANY - CONSPIRACY - WHETHER

INDIVIDUAL HAVING CONTROL OVER

COMPANY MAY ENTER INTO CONSPIRACY

WITH COMPANY.

The plaintiff entered into a compromise of

an action, in which he agreed to sell his

freehold interest in certain premises to the

first defendant, or his nominee. The second

defendant, which was controlled by the first

defendant, had previously acquired the

mortgage interest in the premises from a

bank. Under the compromise entered into,

the plaintiff agreed to complete the sale by

July 1980, and that interest of 22% per

annum would be payable if the first de-

fendant by his default delayed the sale

beyond that data The plaintiff also agreed

to consent to the assignment to the second

defendant of his leasehold interest in the

premises (which was held by another

company). The defendants also agreed to

release all securities or guarantees held by

them over the premises. The plaintiff sub-

sequently consented to the assignment of

his leasehold interest in the premises and the

first defendant also paid a deposit on the

free-hold of the premises. By December

1980, however, the sale had not been

completed knd the first defendant purported

to rescind the agreement for sale This was

held by the Supreme Court to be an

ineffective rescission. The plaintiff then

instituted proceedings sbeking damages for

breach of contract and actionable

conspiracy. The issues revolved, ultimately,

around the actions of the first and second

defendants. In the High Court, Lardner J held

that, although the delay in completion had

been unreasonable, this had not caused any

damage or loss to the defendants; that the

repudiation of the contract by them consti-

tuted a breach of contract; that the com-

bination of the first and second defendants

to procure a breach of contract was an

actionable conspiracy; and that damages

together with the 22% interest as agreed

should be awarded, with a reduction in

proportion to the delay in proceeding attri-

butable to the plaintiff: [1990] ILRM 377. On

appeal by the first and second defendants

HELD by the Supreme Court (Finlay CJ,

Hederman and McCarthy JJ): dismissing the

appeal: (1) having regard to the manner in

which the first defendant had pleaded in his

defence that no conspiracy had been entered

into with the other defendants, it was not

now open to the first defendant to deny that

he was not capable of entering into a

conspiracy with a company of which he was

the effective controller; (2) such an argu-

ment was, in any event, unsound in principle

and not supported by the authorities which

had discussed the nature of the limited

company as being a distinct legal entity from

its members.

Salomon

-v-

Salomon & Co

[1897] AC 22,

-v-

McDonnell

[1966] i QB

233 and

Belmont Finance Corp Ltd -v-

Wi/iiams Furniture Ltd

[1979] 1 All ER 118

discussed; (3) the defendants would be

liable in the tort of conspiracy if either the

object was lawful or, even if its object was

lawful, unlawful means are contemplated or

used to attain the object, whether or not

such means amount to an infringement of

a constitutional right; and so it was no

defence for the defendants to claim that they

had engaged in the actions in the instant

case to protect their own legitimate interests

in the intoxicating liquor licence attaching

to the premises in question.

McGowan -v-

Murphy

(Supreme Court, 10 April 1967) and

Meskell

-v-

CIE

H073] IR 121 approved.

Lonhro Ltd -v- Shell Petroleum Co Ltd

(No.

2) [1982] AC 173 not followed; (4) the trial

judge had correctly assessed the damages

appropriate in the casa

iii