The Gazette 1977

GAZT I IH

JANUARY/FEBRUARY IV77

de t en t i on —(1 976) No . 4 39 SS-Finlay P.-14/12/76. The State (Ha r r i ng t on) v. Commissioner of Garda Siochana Legal Advice Detainee—Suspect being questioned in police station—Right to legal advice—Procurement of such advice—(1976 No. 439 SS-Finlay P. 14/12/76). The St a te (Ha r r i ng t on) v. Commissioner of Garda Siochana Murder Capital murder—Whether a new offence—Mens re a—Whether prosecution must prove that accused knew that deceased was a policeman acting in the course of his duty—Criminal Justice Act, 1964, s. 1—{137-8/1976—Supreme Court—9/12/76). The People (D.P.P.) v. Murray Arrest—Suspect thought to have committed offence—Release after expiration of statutory period of detention—Suspect arrested a second time in respect of the same q f f e n c e — S u s p e ct not charged—Whether second period of d e t e n t i on l aw f ul —H a b e as corpus—Emergency Powers Act, 1976, s.2—(1976 No. 443 SS-Finlay P.—12/11/76). The State (Hoey) v. Commissioner of Garda Siochana HUSBAND AND WIFE Infants Custody—Two sons and one daughter—14, 9 and 3 years—Mother remarrying after divorce in England—Mother pregnant—Children to c o n t i n ue in f a t h e r 's c u s t o d y - ( 1975 No . 2 44 Sp.-McWilliam J.-26/1/76). M. v. M. LANDLORD & TENANT New Tenancy Statutory right—Service of notice of i n t e n t i on to c l a im s u ch relief—Lessor's interest in premises terminating during term granted by him to l e s s ee —Cons equent t e rmi na t i on of i n t e r e st of EMERGENCY POWERS Police

CONTRACT Implied Term

l e s s e e —Le s s ee un awa re of termination of lessor's interest when serving notice—Failure of lessor to inform lessee of facts and to serve statutory notice on superior landlord—Notice of claim served by lessee on superior landlord—New tenancy directed by court—Term of new lease to be 21 years with rent review at end of seven years—(1976 No. 33—Gannon J.-31/5/76). Eamonn Andrews Productions Ltd. v. Gaiety Theatre (Dublin) Ltd. LICENSING ACTS on- licence—Application for certificate stating that portion of premises a restaurant for purpose of s. 13 of Intoxicating Liquor Act, 1927-No existing user as restaurant—Public bar in said portion—No jurisdiction to issue certificate—(1976 No. 238 SS-Finlay P.—29/11/76) Whelan v. Tobin LOCAL GOVERNMENT Planning Notice — Misleading advertisement - N o t i c e of a p p l i c a t i on for permission to erect three temporary prefabricated classrooms in secondary school—New access to school from cul -de - sac also intended—Permission to develop in va l id —(19 7 6 N o . 3 5 57 P.-McMahon J.—12/11/76). Keleghan v. Corby Scaffold-Plaintiff injured in fall from scaffold-Scaffold obtained by plaintiff's employers on hire from 3rd defendants—Plaintiffs employers acting as sub-contractors for 2nd defendants—Plaintiff recovering damages from his employers — Building (Safety, Health & Welfare) Regulations, 1559, reg. 29 - (1973 No. 2940P - Murnaghan J. - 1/12/76). Delaney v. Mather & Piatt Ltd. Forestry-Allowable expenses-Cost of purchasing and planting young trees to replace old woodland being a revenue expense and allowable- Cost of preparing waste land for planting being a capital expense-Cost of Restaurant P r em i s es wi th NEGLIGENCE Builder REVENUE Income Tax

Agency—Plaintiff sole distributing agent for defendant's goods—Implied term that plaintiff would not deal in g o o d s of d e f e n d a n t 's competitors—Termination of agency—Implied term that agency terminable by reasonable notice of t e rm i n a t i on —( 1 9 74 No. 3565p—Finlay P.-8/10/76). Irish Welding Ltd. v. Philips Set off—Implied exclusion of common law right of set off by provisions of building contract which were inconsistent with exercise of that right—(1976 No. 1124-Finlay P.—15/11/76). John Sisk & Sons Ltd. V. Lawter Products B.V. Terms Set off—Interim certificate issued to contractor by architect in course of p e r f o rma n ce of bu i l d i ng contract—Failure of employer to pay sum certified—Contractor's motion for summary judgment—Employer claiming right to set off unproved and unquantified counterclaims — Common law right of set off inconsistent with terms of building contract—Contractor entitled to summary judgment for amount certified—(1976) No. 1124-Finlay P.—15/11/76). John Sisk & Son Ltd. v. Lawter Products B.V. l aw charged—Trial—Whether charge triable summarily—No offence created by s.42 of Offences Against the Person Act, 1861-Section 11 of Cr i m i n al J u s t i ce Ac t, 1 9 51 — Summa ry t r i al au t ho r i s ed —(1976 No. 365 SS-Finlay P.-29/11/76). The Attorney General (O'Connor) v. O'Reilly. Detention Treatment of detainee—Conduct of police enquiry—Whether ill-treatment would invalidate lawfulness of Electrical (Ir.) Implied term CRIMINAL LAW Assault A s s a u l t at c ommon