The Gazette 1977

MAY-JUNE

GAZETTE

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

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

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