Judgments: key cases in brief

Arguments regarding legality of seizure of drugs parcel should have proceeded to trial. DPP vs Lawel (2014) IECCA 33 (Court of Criminal Appeal, MacMenamin J, October 29th, 2014) The Court of Criminal Appeal quashes a Circuit Court decision to dismiss a misuse of drugs prosecution on a summary application prior to trial, on the grounds that the ruling, with regard to the legality of the seizure of a parcel containing drugs, required a balancing process such as could only be conducted at a trial of the charges.

– Ciarán Joyce BL

A cheque theft conviction is affirmed where there was sufficient evidence before jury to convict. DPP vs Hawkins (2014) IECCA 36 (Court of Criminal Appeal, Charleton J,

October 29th, 2014) The Court of Criminal Appeal dismisses an appeal against a Circuit Court conviction for theft of cheques having a value of

€2.8 million, on grounds that a) there was sufficient evidence upon which the jury could have convicted the appellant; b) that disclosure had been properly facilitated; c) that the trial judge had been correct not to exclude witnesses from court during the testimony of other witnesses; d) that the chain of evidence had been properly proven; and e) that the charges had captured the relevant offences.

– Ciarán Joyce BL

A point of law concerning alibi evidence and the identification of the accused did not require clarification from Supreme Court DPP vs McNulty (2014) IECCA 34 (Court of Criminal Appeal, MacMenamin J,

October 29th, 2014) The Court of Criminal Appeal refuses to certify leave to appeal to the Supreme Court on a point of law as to whether a trial judge had correctly directed a jury in relation to the rejection of alibi evidence and the burden of proof on the prosecution concerning the identification of the accused, who was convicted of assault causing harm, on grounds that the proposed point of law was not of exceptional public importance and did not require clarification in the public interest.

– Ciarán Joyce BL

A post-release supervision order on a person convicted of sexual assault

is amended to reflect the intention of court. DPP vs GK (2014) IECCA 35 (Court of Criminal Appeal, Dunne J, October 29th, 2014) The Court of Criminal Appeal, on an application by the Director of Public Prosecutions: a) refuses to impose conditions in respect of a post-release supervision order on a person convicted in 2008 of aggravated sexual assault, which conditions had not been expressly set out in a previous judgment, but b) amends the order to confirm that the offender should be under the supervision of a probation and welfare officer for

10 years from the date of his release.

– Ciarán Joyce BL

The Financial Services Ombudsman erred in rejecting a complaint against a bank for increasing its variable interest rate. Millar vs Financial Services Ombudsman (2014) IEHC (High Court, Hogan J,

October 30th, 2014) The High Court: a) allows an appeal from the decision of the Financial Services Ombudsman (FSO) to reject a complaint against a bank for increasing the variable interest rate paid by the complainants in alleged breach of the relevant loan agreement, on grounds that the FSO had erred in finding that the relevant contractual term was clear in its meaning and failed to have regard to the factual background against which the contract was entered into; and b), remits the matter to the FSO for further consideration.

– Conor O’Higgins BL

An agreement for a lease was “as good as” a lease for the purposes of a claim against the guarantor. North Quay Developments Ltd vs Carty (2014) IEHC 444 (High Court, Hogan J,

October 15th, 2014) The High Court grants a summary judgment in the sum of of

€156,888 against the director of a company who executed a guarantee in respect of a proposed lease to be granted to the company by the owner of a retail premises, and where the company entered into occupation, but where the lease was never released from escrow, on grounds that an agreement for a lease was “as good as” a lease and the guarantor was accordingly bound by it.

– James Cross BL

A floating charge was not enforceable due to the failure to comply with a condition precedent in the loan agreement. Maloney vs Danske Bank A/S (2014) IEHC 441 (High Court, Cregan J,

October 6th, 2014) The High Court, on application by a liquidator of a company, rules that a floating charge was not enforceable against the company because there had been a failure to provide personal asset statements of guarantors, which was expressly stated to be a condition precedent to the loan agreement with the respondent bank

and that the agreement had thereby lapsed.

– James Cross BL

The full text of each judgment can be found on: courts.ie. These reports are provided by Stare Decisis Hibernia: staredecisishibernia.com