114 / 264
GAZETTE
MAY-JUNE
order to ascertain testator's intention.
The general principle is that a will
will be construed to avoid an
intestacy if possible. There is little
doubt that here the testator did not
wish to appoint a non-existent person
as one of his executors. On the
evidence the testator did not intend to
benefit his brother Denis, therefore
the word "Denis" in the will is wrong.
Taking into account all the
circumstances of the case, the Judge
is satisfied that the testator clearly
intended to prefer his nephew
William above all others. S.90 is
accordingly applied, and the words
"my nephew William Bennett" will be
substituted for "my nephew Denis
Bennett".
Re James Bennett, Deceased —
Genevieve Bennett v Denis Bennett
and others —
Parke J. — unreported
- 24th January, 1977.
CRIMINAL
LAW-CONSPIRACY
Appellant's appeal for conspiracy to
cause explosions dismissed, because
fingerprints found in co-conspirator's
garage established his guilt.
On 10 July, 1974, the applicant,
Keane, was convicted by the Special
Criminal Court of conspiracy with
four others to cause explosions
contrary to the Explosive Substances
Act, 1883. One of the other accused,
Jones, with whom Keane was jointly
indicted, was acquitted. The
prosecution was then granted leave to
delete Jones from the indictment, and
ultimately Keane was convicted and
sentenced to 5 years imprisonment.
The applicant brings a motion to
adduce special evidence. This relates
to a notebook, acknowledged by the
applicant to be his own, which was
found in his house when he was
arrested: the applicant admitted the
handwr i t ing and di agrams
concerning bombs were his. A matter
which was not in dispute at the trial
is now sought to be raised, and
accordingly the Court does not deem
it proper that this evidence should be
adduced.
The applicant seeks to amend the
indictment. But once Jones had been
acquitted, there could be no question
of the applicant being convicted of
conspiring with Jones. This ground
accordingly fails.
It is then contended that evidence
on which the conviction was based
was insufficient to warrant a
conviction. The evidence clearly
10
establishes that Noel Murray and
Longmore were in possession of
explosive substances in their
respective flats in Cullenswood
Avenue and in Sydney Lodge, and
that the applicant was the owner of a
notebook containing details for
making explosive devices. The finger
prints of the applicant were found on
the containers of the timing devices in
Murray's garage, and upon a
timetable in Longmore's flat. There
were sufficient explosive substances
in Murray's fait to establish a
prima
facie
case against him, and the same
facts applied to Longmore. It could
also be inferred from the fingerprints
that the applicant knew of the
existence of the explosives in those
flats. The Court is satisfied that
these were the fingerprints of a
person who was proved to have a
knowledge in the making of
explosives with Murray. But the
timetable found in Longmore's flat
does not establish a conspiracy
between the applicant and Longmore.
However counts for conspiracy
should not be laid where the
substantive offence can be laid and
established. A conspiracy cannot be
established by the admission of
evidence, which is not admissible, un-
less a conspiracy has already been
established. There is no count, out of
46 counts on the indictment, which
charged the applicant with causing
these explosions. The liability of the
person charged with conspiracy is
limited to the common purpose while
he remains in it. There was
accordingly no evidence upon which
the applicant could be convicted with
the other named persons, other than
Murray. That however does not alter
the validity of the conviction. The
appeal is accordingly dismissed.
The People (A.-G) v. Keane -
Court of Criminal Appeal (Walsh J.,
Murnaghan J., and Parke J. per
Parke J. — unreported — 3 February,
1975).
NATURAL JUSTICE
A Special Inquiry set up to inquire
into the dismissal of plaintiff Garda
must furnish him with full particulars
of the charge in accordance with
Natural Justice.
The plaintiff joined the Garda in
November, 1955, was promoted
Sergeant in 1964, and was appointed
Sergeant in Ballaghaderreen in July,
1969. By an order of the Garda
Commissioner, he was suspended
from duty on 5 March, 1976, under
the Garda (Disciplinary Regulations
1971) and has continued to be
suspended since then. On 9 March,
the plaintiff was served with a notice
in writing stating that he had
committed a breach of discipline in
attending a Provisional Sinn Fein
demonstration in Ballina on 22
February, 1976, and that
Superintendent Shea of Roscommon
had been appointed to investigate the
matter. The Commissioner was not
aware of this investigation, and
purported to issue a notice on 9
March, 1976, to the effect that the
plaintiff was unfit for retention in the
force, and that, subject to the
recommendation of a Special Inquiry
Board, he proposed to dismiss him.
This notice was served on the plaintiff
on 15 March.
On 29 March, the plaintiff was
served with a further notice signed by
Chief Superintendent Clinton,
informing him that a special inquiry
would be held in Roscommon on 22
April to inquire into the plaintiff's
alleged breach of discipline by
attendance and participation in a
Provisional Sinn Fein demonstration
in Ballina on 22 February. On 19
March, plaintiffs solicitor had
written to Superintendent Shea
asking him not to conclude his
investigation, and he had received a
reply f rom the A s s i s t a nt
Commissioner dated 24 March
stating "that the question of
advancing reasons for his dismissal is
purely a matter for the member
concerned". The solicitor replied to
the Commissioner on 13 April,
requesting him to furnish (1) A copy
of the completed discipline form
relating to the plaintiff, (2) A copy of
the exact charge of breach of
discipline, (3) A copy of each
statement and particulars to be read
at the inquiry, (4) The names and
rank of Garda officers conducting
and prosecuting the inquiry and
names of witnesses, (5) Will the
plaintiff be given an opportunity to
admit or deny the facts, or to
challenge the members of the Court
of Inquiry?
The plaintiff's solicitor received a
reply from the Commissioner on 15
April, to the effect that he was not
obliged to supply any information,
but he did name the officers of the
Board of Inquiry, as well as the
prosecutor, and stated that the
plaintiff could be legally represented.
On 21 April a Plenary Summons was
issued on behalf of the plaintiff in the