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GAZETTE
JULY/ AUGUST 1983
Recent
Irish
Cases
JOINT TENANCY
Agreement by Joint Tenants to sell
property does not of itself sever the joint
tenancy - there must be an intention to
sever.
A Testator left a farm to two sons as
joint tenants. They fanned jointly for five
years with earnings being paid into a
joint account until one brother became
ill and they decided to sell. A contract
for sale was signed by the personal re-
presentative of the Testator as no assent
had been made in favour of the two
sons. One of the joint tenants died
before completion of sale. The sale was
completed by the Testators personal
representative. The Plaintiff, one of the
next of kin of the deceased joint tenant
claimed that the joint tenancy on which
the lands were held by the deceased and
the defendant (who was also personal
representative of the deceased) was
severed by the sale of the lands before
the death of the deceased. The defend-
ant claimed that the purchase money re-
presenting the sale of lands passed to
him in his personal capacity as surviving
joint tenant. The Plaintiff claimed that
the monies accrued to the estate of the
deceased. It was alleged that the
agreement for sale severed the joint
tenancy and the surviving joint tenant
was not entitled to the entire proceeds
by virtue of the right of survivorship.
Held: In order to affect a severance
there must be an intention to do so. The
dictum of O'Connor L. J. in
Hayes
Estate
[1920) l.I.R. 207 at p. 211 to the
effect that "a
mere
agreement by
persons entitled as Joint tenants to con-
vert their property from one species to
another does not operate to work a
severance" was approved. The burden
of proof lies on the person contending
that there had been a severance. From
the facts of the present case there was no
evidence of an intention to sever.
(Eugene Byrne v. Patrick Byrne - The
High Court (McWilliam J)
-18 January
1980 - unreported).
Rory McEntee
CRIMINAL LAW
Appeal to Court of Criminal Appeal on
the grounds that two separate incidents
should have not have been included on
one Indictment. Visual Identification not
adequately dealt with by the trial judge,
and similar fact evidence should have not
been admitted.
The Appellants, were convicted in a
joint Trial in Dublin Circuit Court, for
the larceny of, and the attempted
larceny of, clothes from an outfitters
shop in Thurles, Co. Tippearary on two
separate occasions. A third brother,
who was convicted at the same time, did
not appeal. The facts of the case were
that the Appellants entered an outfitters
shop in Thurles on 26 February 1981 and
10 March 1981. On the first occasion,
two men came into the shop, one of
whom was carrying a cardboard box at
his chest. A third man, who entered
after them, approached a counter at the
other end of the shop, where he received
attention.
All three men left the shop without
purchasing anything. A short time later,
it was discovered that six leather jackets
and two suits were missing. On 10
March 1981, an incident which was in all
ways similar to the incident described
above occured in the same shop. On this
occasion the men at the back of the shop
were attended and left the shop a short
time later, followed by the third man.
No purchases were made and there was
nothing missing from the shop. The
Proprietor of the shop watched them for
a short time and then notified the
Gardai. Meanwhile another member of
the staff followed them and eventually
pointed them out to the Gardai in
another shop. A number of Submissions
were made on behalf of the Appellants,
all save one was rejected by the Court.
1. That both counts, the first of
Larceny on 26 February 1981 and the
second of attempted larceny on 10 March
1981, could be included on the same
indictment. The charges formed part of
a series of offences of the same or a
similar character and their inclusion
together on the Indictment was covered
by the Statutory Provisions Section 5
and Section 6 (3) of The Criminal Justice
(Administration) Act, 1924, Rule 3 of
the First Schedule to the Act and
Section 18 of the Criminal Procedure
Act, 1967. Citing these provisions, the
Court rejected the submission that the
Prosecution was entitled to add only
counts relating to the same incident and
that the second count should not have
been added, because this allowed
evidence of a system and two episodes
could not establish a system.
2. That the Trial Judge, in the
exercise of his discretion under Section 5
of the Criminal Justice (Administration)
Act, 1924, was correct in refusing to
direct separate trials. The Court cited
with approval the principle laid down in
the cases of
Harris
v.
The Director of
Public Prosecutions
[1952] 1AII E.R.
1044 and the case of
Mackin v. The
Attorney General for New South Wales
[1894] A.C. 57. In the latter case, Lord
Herschell stated at page 65.
"It is undoubtedly not competent for
the Prosecution to adduce evidence
tending to show that the Accused has
been guilty of Criminal Acts, other
than those covered by the Indictment,
for the purpose of leading to the
conclusion that the Accused is a per-
son likely from his Criminal conduct
or character to have committed the
offence for which he is being tried. On
the other hand, the mere fact that the
evidence adduced tends to show the
commission of another crime, does
not render it inadmissible if it be re-
levant to an issue before the jury, and
it may be so relevant if it bears upon
the question whether the acts alleged
to constitute the crime charged in the
Indictment
were
designed
or
acidental or to rebutt a Defence which
would otherwise be open to the
Accused."
In the present case, the Court found
that the evidence that was given of the
first incident was relevant to the second
count to show that such a box could be
used for the purposes alleged in the
second count.
3. That in respect of the first count,
the larceny of clothing on 26 February
1981, the Appeal should be allowed on
the ground that, whilst the Trial Judge
dealt very fully with the dangers of
visual identification, he did not
specifically direct the attention of the
Jury to the evidence relevant to the
identification of the Accused on the first
count. The Court cited the case of
The
People (Attorney General) v. Casey
(No. 2)
[1963] I.R. 33 and the case of
Harris v. The Director of Public
Prosecutions
[1952] l.AII E.R. 1044. In
the present case, the Court held that the
Jury did not get any assistance from the
Trial Judge to guide them in the careful
examination of the evidence of
identification as required by the
principles laid down in Casey and
further the Trial Judge seemed to have
treated the evidence as cumulative. In
addition, the Trial Judge stated on two
occasions that the case for the
Prosecution did not rest on visual
indentification alone, but failed to
indicate what other aspects of the
evicence supported the Visual Identi-
fication of the Accused in respect of the
first count.
4. The Court rejected the submission
that the Trial Judge did not direct the
Jury to consider the evidence relevant to
each. count separately ánd did not,
himself, when dealing with the
evidence, indicate which proportions of
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