The Gazette 1978

GAZETTE

NOVEMBER 1978

RECENT IRISH CASES

CRIMINAL PROCEDURE

Where a trial judge unnecessarily

intervenes and Interrupts counsel in

examination-in-chief and in cross-

e x a m i n a t i o n , t he t r i a l is

unsatisfactory and the verdict should

be set aside.

The accused was tried in the

Central Criminal Court by a judge

and jury on a charge that in May

1976 he raped the complainant. The

defence was consent. The jury found

the accused guilty of rape and the

judge sentenced him. A certificate for

leave to appeal to the Court of

Criminal Appeal was refused but the

accused applied to the Court for

leave to appeal.

The main ground of appeal was

that the persistent interruptions by

the trial judge of counsel for the

d e f e n ce r e n d e r ed t he t r i al

unsatisfactory and the verdict of the

jury unsustainable. The cross-

examination of the complainant

consisted of 423 questions. 123 of

these were put by the judge directly

to the complainant. The 123 did not

include about 60 remarks and

directions to counsel. Also the

interventions by the judge sometimes

included a number of consecutive

questions. These interventions were

not confined to clarifying answers

already given or clearing up

ambiguities.

Held

by the Court of Criminal

Appeal (per Kenny J.):

(1) that the number of questions

put by the judge and the many

interventions by him made it

impossible for counsel for the accused

to conduct a cross-examination on

the lines he considered would be most

effective and could have had the

effect of causing the jury to believe

that the judge had formed a definite

opinion as to the credibility of the

complainant.

Per

Kenny J

.: "When the defence

to a charge of rape is consent, the

cross-examination of the complainant

is the most important evidential part

of the trial. It may be long and

counsel should be allowed to return

to matters he has already dealt with if

he has succeeded in showing that on

other matters the witness is not to be

believed.. The judge must be patient

and confine his interventions to the

minimum necessary for a fair trial.

He should intervene only when cross-

examining counsel mis-states

evidence already given or asks a

question which the witness may

not understand or when he thinks

that the witness has misunderstood

the question".

The dictum of Denning LJ . in

Jones v. National Coal Board

[1957]

2 All. E.R. 155 at p. 160 approved:

"The very gist of cross-examination

lies in the unbroken sequence of

question and answer".

(2) That an active participation by

a judge in the examination-in-chief of

witnesses is undesirable as it may

give the impression to the accused or

to the jury of a lack of impartiality on

his part.

(3) That, consequently, the trial of

the accused was unsatisfactory, the

verdict was set aside and a new trial

ordered.

D.P.P. v. McGuinness — Court of

Criminal Appeal (Kenny J. with

Gannon and McWilliam JJ.) —

Unreported — 3 July 1978.

L I Q U I D A T I ON

EMPLOYMENT

Court Order for the appointment of a

provisional liquidator does not

determine contracts of employment

and is not notice of discharge.

Continuity of service for the purposes

of Redundancy Payments Acts and

Minimum Notice and Terms of

Employment Act is not broken.

The Appellant had been appointed

provisional

liquidator of Brittain

Manufacturing Ltd., (the Company),

by Order of the High Court on 26

May, 1977 with power to, (inter alia)

"carry on the business of the

company so far as might be

necessary for the beneficial winding-

up thereof'. The Liquidator called a

meeting of the employees, informed

them of his appointment and told

them that from then on they would be

employed on a day-to-day basis.

There was no mention of dismissal

and the employees continued working

on the same terms and conditions as

before. On 20 June, 1977, the High

Court ordered that the Company be

wound up and the Appellant was

appointed

official

liquidator. The

employees continued in employment

for varying periods after 26 May,

and were subsequently dismissed.

The liquidator refused the employees

payment based on continuous service

under the Redundancy Payments Act

1967/71 and the Minimum Notice

and Terms of Employment Act

1973.

The employees appealed to the

Employment Appeals Tribunal (the

Respondent) which held that the

appointment of the provisional

liquidator did not automatically

determine the contracts of all

employees of the Company and did

not break the continuity of

employment of any of the employees,

that such notice as was given to the

employees did not determine their

contracts of employment and that the

emp l oyees were en t i t l ed to

compensation under the Minimum

Notice and Terms of Employment

Act 1973 based on continuous

service from their respective dates of

commencement of employment to the

their employment finally

terminated at their agreed outgoing

v and that they ma> also be

entitled to further payments under the

Redundancy Payments Acts in

respect of their period in continuous

service. The liquidator (appellant)

appealed to the High Court against

the decision and award of the

Employment Appeals Tribunal.

Held

(per Hamilton J): that the

effect of the three cases

Chapman (1

Equity Law Reports 346)

In re

Oriental Bank Corporation Mac-

DowaIs

(32 Chancery 366) and

Ex Parte Harding, (Law Reports Eg.

341) relied on by the Appellant,

agreeing with the reasoning in

Doyle v.

Equitable Insurance Co. Ltd.)

(a) a court order for the winding-

up of a company was in the ordinary

case deemed to be a discharge of the

company's servants;

(b) a servant could, however, be

kept on the same terms as his original

contract by being specifically

requested to do so;

as a notice of discharge could be

waived.

These cases all required that there

be an actual order for the winding-up

of the Company. An order for the

appointment of a

provisional

liquidator was different from an order

for the winding up of a company

notwithstanding that Section 220 (2)

of the Companies Act 1963 provided

that the winding-up of a company by

the Court should be deemed to

commence at the time of the

presentation of the petition for the

winding-up.