The Gazette 1977

JANUARY/ILLRUARY UJ77

GAZETTE

Damages for £1,162 "awarded for costs of remedying detailed defects and for inconvenience'hi carrying out repairs to dwelling house. The defendants undertook to build for the plaintiff the dwellinghouse now known as 101, Georgian Villas, Castleknock for £12,250. The plaintiff claims damages for the costs of remedying defects in his house, and for diminution in the value of the house because of the defendant's alleged failure to construct the adjoining house to a high standard of construction and design, as well as for inconvenience and anxiety. The only plans seen by the plaintiff before entering the contract were a "Sales Specification" and a "House Type 7A", which, showing individual rooms, gave a total floor space to the house of 1,400 square feet. Subsequently the plaintiff obtained from the Planning Dept. of Dublin Co r p o r a t i on a " B u i l d e r 's Specification", which detailed the houses to be built in the Georgian Village by a sub-contractor named Belcourt Housing Estate Ltd., which was not a contract document The principles in Brown v. Norton (1954) I.R.34 as to the house being reasonably fit for immediate occupation when completed were to apply. Clause 12 of the contract excluded any liability of the defendants for structural defects in workmanship and materials not being in accordance with the specifications, and the plaintiff insisted upon the addition of this clause—"Provided that nothing in this contract is to deprive the purchaser of his guaranteed common law rights". Thus the defendants arc deprived of any defence under the printed clause in rcspect of any defect attributable to a breach of contract on their part. As a result of delays in erection the plaintiff did not enter into occupation of the house until 25th November, 1971. 11 houses were then completed, but the standard of workmanship by the sub-contractors was very poor. On 8th December, 1971, the plaintiff and other dissatisfied purchasers were informed that Guinness & Mahon had taken control of the defendant company, and intended to carry out all necessary remedial works. A list of defects was sent to the plaintiff by the architects, who represented all the purchasers of the estate, on 14th December, 1971. The various defects

prohibit the Gardai from further questioning, although it removes the penalty in the event of the person detained refusing to answer such further or repeated questions. In this case however all the material statements tendered in evidence were not made as a result of any form of request of an account of the accused's movement, but, as found by the Special Criminal Court, after a proper caution duly ad- ministered to the accused. The mere fact that on repeated occasions the accused was requested to give an ac- count of his movements by different Gardai did not constitute illegal ac- tion towards him, nor the deprivation of any right on his part; this was therefore a lawful detention. (3) Even if the admissibility of Doyle's statement be accepted, this did not constitute an admission of participation in the crime of murder. In the statement, Doyle admitted that he had stolen the white Cortina car in Kilfinane on 6th June, 1975, at the request of a friend in Cork; he then concealed the car in Limerick, and drove it to Cork on the night of 8th June, 1975. On 9th June, Doyle took the existing number plates off the car, and, and having thrown them in the river, substituted false number plates. He then parked the car in Evergreen Road, and went to meet his friend. While driving around, his compa- nions were discussing the feasibility of getting at White; Doyle thought he was going to be wounded or beaten up. This Court is satisfied that, after the knowledge which Doyle acquired on his journey towards Evergreen Road as to the iniquitous purpose for which the car was required, he took active steps to assist in implementing that purpose, and that Doyle knew that the crime which was to be com- mitted was one which would cause serious injury to White. Having regard to the authorities, it is clear that in such circumstances Doyle is guilty of murder. The ap- plication for leave to appeal on behalf of Doyle is accordingly refused. People (Director of Public Prosecutions) v. Madden, O'Donnell, Lynch and Doyle.-Court of Criminal Appeal (The Chief Justice, The Presi- dent of the High Court and Gannon J.) per O'Higgins C. J.-unreported- 16th November, 1976

pie evidence upon which the Special Criminal Court could make the findings of fact which it did. Although it would be possible for a protracted period of detention, coupled with persistent interrogation or interviews by the Gardai, to con- stitute oppression even without physical violence, in this case there was direct evidence as to Doyle's morale and mental capacity namely that it was good, alert, and normal. Consequently this Court cannot up- set the finding of the Special Criminal Court, when they ruled Doyle's state- ment admissible. (2) It was contended that irrespective of the findings of fact made by the Special Criminal Court, the failure by the Garda to provide for Doyle any legal adviser at the time of making the statement, when he asked for one, was a deprivation of his con- stitutional rights. The Court is satisfied that a person held in deten- tion by the Garda, whether under the Offences against the State Acts or not, has got a right to reasonable ac- cess to his legal advisers, and that a refusal upon request to give such reasonable access would render his de t en t i on i l l e ga l. The test is one of reasonable means having regard to the circumstances of each individual case. This does not mean that there is any obligation on a Garda to ofTer a detained person the assistance of a legal adviser without request. The Special Criminal Court found as a fact that Doyle did not at any time request the presence of a legal adviser. Under S.52 of the Offences against the State Act, 1939, a Garda may de- mand from any person in custody un- der the Act an account of his movements, and information relating to the commission of any suspected crime under the Act. Any person who refuses to give an account of his movements, or of such truthful infor- mation, is guilty of ar. offence, and is liable to be sentenced to 6 months imprisonment. Apart from S.52, any person detained by the Gardai, whether under the Offences against the State Acts or otherwise, is entitled in law to refuse to give an account of his movements, or to give the infor- mation requested, and is not liable to a penalty if such information is false or misleading. The confining of an obligation un- der S.52 to the giving of a single ac- count of his movements, provided it is complete and true, does not