The Gazette 1961 - 64

Mr. Justice Kingsmill-Moore in his judgment said that the plaintiffs, faced with this difference in opinion among their workmen, had adopted a course which seemed to him not only legal, but unexceptional on any ethical standard, and entirely commendable. He was of opinion that Mr. Justice Budd (who had given the High Court judgment) had been correct in holding that the picketing was illegal unless it had been conducted in furtherance of a trade dispute. The first step in the constitutional argument of the plaintiffs was to show that the Constitution guaranteed the right of a citizen not to join an association or union if he did not wish. The Constitution did not give a guarantee in express terms that a citizen should not be coerced into joining a union, but he thought that it did so by necessary implication. Moreover, he thought that the right to form associations or unions was the only intelligible way there was of expressing an explicit right to abstain from joining such association or union. The Constitution implicitly guarantees the right of a person not to be coerced. He would dismiss the appeal. Mr. Justice C) Dalaigh agreed with the judgment of Mr. Justice Kingsmill-Moore. Mr. Justice Haugh said he was of opinion that the appeal should be disallowed and that the injunction should stand. Contract—mistake—non estfactum. (Cty. Ct.~) In Kirsh v. Finger (September 25, 1961) K. sued F. for rent due under a hiring agreement. F. pleaded that he had signed the agreement in the mistaken belief, induced by K.'s misrepresentation, that it was a hire-purchase agreement. Judge Baxter held, inter alia, that F.'s mistake was as to the contents and not the nature of the document (following Howatson v. Webb (1908) i Ch. i) and that the defence of non est factum therefore failed. Criminal law—corroboration—accomplice. In the People (Att. Gen.) v. Shaw (1960) I.R. 168, where the accused was convicted on four out of eleven counts in an indictment, the Court of Criminal Appeal held that where there is evidence capable of being regarded as being corroborative of an accomplice's evidence and some but not all the counts in the indictment, the trial judge should in dicate to the jury the counts on which there is no evidence capable of being regarded as corroborative. Further, on a count of receiving a typewriter, the jury were entitled to treat evidence that the accused sold it within a few days of its being stolen as corrobora­

tion of the evidence of the accomplice. The Court's decision was given by Maguire C. J. Davitt P., and McLoughlin J. ; the trial judge was Teevan J. Criminal law—confession. In the People (Att. Gen.) v. Ainscough (1960) I.R. 136, the evidence against the accused, who was charged with shopbreaking and larceny and was unrepresented, consisted almost entirely of a state ment which he was alleged to have made to a detective officer. On being informed by the trial judge of his right to do so, the accused, during the absence of the jury, challenged the statement on the ground that it had been procured by an inducement held out by the detective officer. The trial judge ruled that the statement was admissible but on the return of the jury did not inform the accused of his right to challenge the statement on cross-examination on the ground on which he had challenged it during the jury's absence. On an application by the accused for leave to appeal, the Court of Criminal Appeal in Eire held that the failure of the accused to cross-examine the detective officer in the presence of the jury as to the manner of the taking of the statement may have misled the jury as to the weight to be attached to the objection to the admission of the statement. A new trial was ordered. The court's decision was given by Maguire C. J. Davitt P., and McLoughlin J.; the trial judge was Dixon J. Insanity — automatism—whether question for jury. The issue of automatism should only be left to the jury where the defence has laid a proper foundation for so doing by producing positive evidence of it; if, however, the defence succeeds in laying such a foundation then the onus is on the prosecution to prove intent. But where the alleged automatism is based solely on a defect of reason from disease of the mind within the M'Naughton Rules, and that cause is rejected by the jury, there is no room for the alternative defence of automatism. Per Lord Denning : " The old notion that only the defence can raise a defence of insanity is now gone. The prosecution are entitled to raise it and it is their duty to do so rather than allow a dangerous person to be at large." Per Lord Denning, further : " It seems to me that any mental disorder (including epilepsy or cerebral tumour) which has manifested itself in violence and is prone to recur is a disease of the mind for the purpose of the M'Naughten Rules." The appellant was convicted ofmurder in Northern Ireland in spite of three defences, namely that at the time of the killing he was in a state of automatism because suffering an attack of psycho-motor epilepsy, 74