The Gazette 1974

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UNREPORTED IRISH CASES
Conviction quashed bccause identification unsatis-
factory.
On 22 February 1973 a robbery took place in a garage
in Rathmines. Two masked men took £73 from the till
in the presence of the petrol attendant. The applicant
Was tried and convicted in Dublin Circuit Court, and
sentenced to five years penal servitude. The petrol atten-
dant was driven on February 26 by a Guard to the
Circuit Court on the morning of the trial, and iden-
tified in the hall of the Court the applicant as the man
with the breadknife who had taken part in the robbery
four days earlier. No proper identification parade was
ever held; the petrol attendant had never seen the
accused before the robbery. The petrol attendant had
further stated that the Guard told him in advance that
tiie accused would be present. There should have been
a full disclosure at the trial by means of examination
and cross-examination of the petrol attendant and of
the Guard, of all the circumstances of the identification
so as to enable the jury to find if it had been established
beyond reasonable doubt that the petrol attendant
correctly picked out the applicant. Here the full circum-
stances of the identification relied on were not presented
•n evidence to the jury.
As the Court considers that a verdict of guilty could
not be obtained on the evidence presented at the trial
•f a retrial were ordered, it will allow the appeal and
quash the conviction.
[ The People (A.-G.) v Peter Fagan; Court of Crim-
Uial Appeal (Henchy, Murnaghan and Gannon JJ. per
Henchy J.); unreported; 18 May 1974.]
Plaintiff's dismissal from Garda justified.
Plaintiff was formerly a member of the Garda, and
Was stationed at Portumna. The Deputy Commissioner
had made an order transferring the plaintiff from Por-
tumna to Ballinamore to take effect from 5 January
1971. The plaintiff refused to comply with this order.
Dn 18 February 1971, a directive was issued ordering
a n inquiry, which duly took place in Loughrea Garda
Station on 6 July 1971. Here the plaintiff was charged
^ith having refused to obey a lawful order of transfer
and the inquiry duly held that the plaintiff had been
guilty of the offence charged.
His complaint is that he was improperly required by
tiie Tribunal to indicate the nature of the evidence to
be given by his witnesses. This is obviously a misinter-
pretation of the Regulations, which does not require
an accused to disclose the nature of his defence, but
Herely requires him to indicate to the Tribunal the pur-
pose for which he requires the Tribunal to issue sub-
poenas in respect of persons whose attendance he
Squires in Court.
O'Keeffe P. had found the plaintiff's complaint well-
founded, as the plaintiff was not required by the pre-
scribed Regulation to indicate to the persons holding
the inquiry the evidence which he considered his wit-
nesses would be able to give. In this respect he held that
°nly material evidence would be received, and therefore
°nly those witnesses who would give material evidence.
When the Tribunal requested him to indicate in what
way the evidence of these witnesses was material to the
issues which the inquiry had to try, the plaintiff objected.
Obviously no person can be a witness until his evidence
is relevant and admissible. If then the witness is mate-
rial, he must be summoned if the request is made. But
if prima facie a witness is not material, the Tribunal
must be judicially satisfied of the materiality of the
evidence, before it directs a witness summons to issue.
When the Tribunal tried to enforce this Regulation,
counsel withdrew from the inquiry, without hearing any
of the witnesses whose names were on the list, because
no order was issued for the attendance of these wit-
nesses. The President consequently held that the con-
duct of the Tribunal was in breach of the terms of the
Regulation, in that the Tribunal sought to ascertain
from the accused the evidence which the proposed wit-
nesses never gave. The Supreme Gourt held that the
Regulation did not violate any constitutional or other
fundamental right.
The full Supreme Gourt consequently allowed the
appeal, and ordered that the plaintiff's dismissal was
justified.
[Fitzpatrick v Wymes, Flood and the Minister for
Justice; full Supreme Court (separate judgments by
FitzGerald C.J., Walsh J. and J.); unreported;
13 February 1974.]
Award of Property Arbitrator granting full market value
to Claimant from Acquiring Authority upheld.
Case stated by Mr. Owen MacCarthy, the Arbitrator
of the Land Reference Committee, on an arbitration
between Dublin Go. Council (hereinafter called the
Acquiring Authority) and Deansrath Investments Ltd.
(hereinafter called the Claimants) to determine the
proper compensation to be paid pursuant to the Dublin
Go. Council Compulsorv Purchase (Housing Act 1966)
No. 1 Order 1968.
The property arbitrator made his award on 25 March
1971. It was there stated that Rules 10 and 13 in the
4th Schedule to the Local Government (Planning and
Development) Act 1963 (hereinafter called the 1963
Act) restricted the arbitrator in determining the value
of the lands, to value them as agricultural land on the
date of the Notice to Treat, 16 April 1970. The arbi-
trator held that the sum to be paid to the claimants
was in principle £450,000, but, if the acquiring auth-
ority's submission were upheld, it would be reduced to
£150,000. At the hearing, there had been a conflict of
evidence between the valuers. The evidence on behalf
of the claimants was that the land would realise £3,000
per acre, which would give a total of £698,325. On the
other hand, the evidence on behalf of the acquiring
authority was that the lands on the same basis were
worth £1,750 per acre. If the lands were to be valued
solely on the basis of agricultural land, they would only
be worth £750 per acre, which is the contention now
put forward by counsel for the acquiring authority.
Section 2 of the Acquisition of Land (Assessment of
Compensation) Act 1919, which deals with the assess-
ment of compensation for lands compulsorily acquired
is then quoted in full. Section 69 of the Act of 1963
245