Hardiman J

No abuse of process by prosecution in bringing corruption charges.

By Ciaran Joyce BL in Denham CJ, Hardiman J, Ireland Supreme Court, Uncategorized No Comments Tags: ,

Cosgrave v.  DPP [2012] IESC 24

(Supreme Court, Denham CJ (with her Murray J and Fennelly J), Hardiman J (dissenting), 26 April 2012)

Supreme Court dismisses appeal from High Court, and affirms refusal of prohibition of criminal trial on grounds that that prosecution were entitled to await the prosecution and conviction of their key witness before proceeding with trial of appellant.

Denham CJ: Abuse of process – prohibiting a criminal trial proceeding  – real risk of an unfair trial – judicial reviewed in High Court  – appeal to Supreme Court –  corrupt payments  – Carrickmines re-zoning – Flood/Mahon tribunal – former County Councillor –  inducements or rewards for voting in a particular way on motions before Dublin City Council and Dun More

English national could not be surrendered to France for investigation or trial of murder allegedly committed in Ireland.

By Mark Tottenham BL in Denham CJ, Fennelly J, Hardiman J, Murray J, O'Donnell J No Comments Tags: ,

Minister for Justice v. Bailey [2012] IESC 16
(Supreme Court, Denham CJ, Murray J, Hardiman J, Fennelly J, O’Donnell J (all concurring), 1 March 2012)

Supreme Court allows appeal from High Court, and refuses order to surrender English national to France for investigation or trial of alleged murder of French person in Ireland.

Denham CJ (Full text.): European arrest warrant – appeal from order of surrender in High Court (Peart J) – application for surrender to France on charge of murder allegedly committed in Ireland – whether surrender More

Carbon allowances could be “bidded in” to bid for supply of electricity.

By Mark Tottenham BL in Denham CJ, Hardiman J No Comments Tags: ,

Viridian Power Ltd v. Commission for Energy Regulation [2012] IESC 13
(Supreme Court, Hardiman J (with him Murray J, Macken J), Denham CJ (dissenting), McKechnie J (dissenting), 23 February 2012)

Supreme Court allows appeal from High Court, and quashes directive from Commission for Energy Regulation prohibiting carbon emissions levy from being “bidded in” to bid for supply of electricity.

Hardiman J (Full text.): Judicial review – electricity generation – carbon allowances – appeal from High Court (Clarke J) – emission trading allowances (“carbon allowances”) – European Communities (Greenhouse Gas Emission More

Abolition of offence of buggery in 1993 prevented prosecution of alleged offence in 1970.

By Mark Tottenham BL in Denham CJ, Fennelly J, Hardiman J No Comments Tags: , , ,

DPP v. Judge Mary Devins [2012] IESC 7
(Supreme Court, Denham J, Hardiman J (with them, Macken J), Fennelly J (dissenting) (with him, Murray J), 8 February 2012)

Supreme Court allows appeal from decision of High Court, and holds that notice party was not liable for prosecution for alleged buggery of a child in 1970.

Denham CJ (Full text.): Judicial review – decision by District Court judge to make no order in relation to charge of buggery – repeal of ss 61 and 62, Offences Against the Person Act 1861 – buggery – whether a statutory offence – More

Arrest for drink driving held lawful despite failure to invoke statute.

By Mark Tottenham BL in Hardiman J No Comments Tags: , ,

DPP v. Ennis [2011] IESC 46
(Supreme Court, Hardiman J (nem diss), 6 December 2011)

Supreme Court holds, in answer to case stated from Circuit Court (Judge O’Sullivan), that: a) an arrest for drink driving might be lawful in the absence of the statute being invoked; b) an evidential burden on the accused might be discharged by reliance on prosecution evidence; and c) that if a statutory presumption is rebutted, a statement relying on said presumption was without evidential value. (Full text.)

Drink driving – case stated from Circuit Court (on rehearing from District Court) – s 49, Road Traffic Act 1961 (as amended) – whether accused lawfully arrested – whether accused specifically informed that he was being arrested More

Cleary v. DPP – SC – Judicial review, application to restrain trial, autrefois acquit

By Mark Tottenham BL in Hardiman J, O'Donnell J No Comments Tags:

Cleary v. DPP [2011] IESC 43
(Supreme Court, Hardiman J, O’Donnell J (diss), McKechnie J, 23 November 2011)

Supreme Court allows appeal from High Court (ó Néill J), and grants order restraining further prosecution of applicant on charge of assault causing harm. (Link.)

Hardiman J (McKechnie J conc)(Full text): Judicial review – appeal from dismissal – trial for assault causing harm – consent by DPP to summary disposal of charge – summary jurisdiction accepted by District Court judge – failure of prosecution to attend District Court hearing – subsequent charge More

McLaughlin v. Aviva – SC – Discovery, privilege claimed by Gardaí

By Mark Tottenham BL in Denham CJ, Hardiman J, O'Donnell J No Comments Tags: , , ,

McLaughlin v. Aviva Insurance (Europe) PLC [2011] IESC 42
(Supreme Court, Denham CJ, Hardiman J (diss), O’Donnell J, 15 November 2011)

Supreme Court allows appeal from High Court (Kelly J) and holds that Gardaí were entitled to claim privilege over CCTV footage sought by plaintiff in civil proceedings, notwithstanding that footage was plaintiff’s own property handed to Gardaí as part of criminal investigation.

Denham CJ (Full text.) Non-party discovery – privilege – claim against insurer for failing to indemnify in relation to fire – allegation that plaintiff responsible for fire – CCTV footage handed by plaintiff to Garda for investigation – privilege claimed by Garda over footage – ongoing criminal More

DPP v. Brian Wall – CCA – Misuse of drugs, sentencing, undue leniency

By Mark Tottenham BL in Hardiman J, Hardiman J, Ireland Court of Criminal Appeal No Comments Tags: ,

DPP v. Brian Wall [2011] IECCA 45 (29 July 2011)

Court of Criminal Appeal (Hardiman J, judgment of court) dismisses appeal by state from decision by Circuit Court judge to impose a suspended sentence for serious drug-dealing conviction. (Full text.)

Criminal law – sentencing – whether sentence unduly lenient – s 15A Misuse of Drugs Act 1977 – plea of guilty – sentence of six years – sentence suspended in its entirety – circumstances of offender – positive probation report – onus of proving that sentence unduly lenient – mitigating factors – financial motivation in dealing in drugs – admission of offender to other offenses – deference by appeal court to view of sentencing judge – whether any error in principle on the part of the sentencing judge.

DPP v Rory Lernihan [2007] IECCA 21
Director of Public Prosecutions v. Byrne [1995] 1 I.L.R.M. 279
DPP v McGinty [2007] 1 I.R. 633
DPP v. Renald (Unreported, Court of Criminal Appeal, 23rdNovember, 2001)
People (DPP) v Botha [2004] 2 I.R. 375
DPP v Alexiou [2003] 3 I.R. 513
DPP v McCormack [2000] 4 I.R. 356
“A Damocles’ sword guaranteed Irish: The Suspended sentence in the Republic of Ireland” (1982) 17(2) Irish Jurist 221
People AG v McClure [1945] I.R. 275
O’Malley, Sentencing Law and Practice, 2nd Edition, (Dublin, 2006), para. 22.09
DPP v Duffy (Unreported, Court of Criminal Appeal, 21st December, 2001)
DPP v Galligan(Unreported, Court of Criminal Appeal, 23rd July, 2003)
The People (D.P.P.) v. Patrick Long [2006] IECCA 49
DPP v. Robert Henry (Ex tempore, Court of Criminal Appeal, 15th May, 2002)
People (DPP) v. Redmond [2001] 3 I.R. 390
R v. Bratzer(2001) NSCA 166
R v. Comier (1975) 9 N.S.R. (2d) 687
R v. Shropshire [1995] 4 S.C.R. 227
R. v. C.A.M. [1996] 1 S.C.R. 500

Suspended sentence upheld for drugs offence.

By Mark Tottenham BL in Hardiman J, Hardiman J, Ireland Court of Criminal Appeal No Comments Tags: ,

DPP v. Brian Wall [2011] IECCA 45 (29 July 2011)

Court of Criminal Appeal (Hardiman J, judgment of court) dismisses appeal by state from decision by Circuit Court judge to impose a suspended sentence for serious drug-dealing conviction. (Full text.)

Criminal law – sentencing – whether sentence unduly lenient – s 15A Misuse of Drugs Act 1977 – plea of guilty – sentence of six years – sentence suspended in its entirety – circumstances of offender – positive probation report – onus of proving that sentence unduly lenient – mitigating factors – financial motivation in dealing in drugs – admission of offender to other offenses – deference by appeal court to view of sentencing judge – whether any error in principle on the part of the sentencing judge.

DPP v Rory Lernihan [2007] IECCA 21
Director of Public Prosecutions v. Byrne [1995] 1 I.L.R.M. 279
DPP v McGinty [2007] 1 I.R. 633
DPP v. Renald (Unreported, Court of Criminal Appeal, 23rdNovember, 2001)
People (DPP) v Botha [2004] 2 I.R. 375
DPP v Alexiou [2003] 3 I.R. 513
DPP v McCormack [2000] 4 I.R. 356
“A Damocles’ sword guaranteed Irish: The Suspended sentence in the Republic of Ireland” (1982) 17(2) Irish Jurist 221
People AG v McClure [1945] I.R. 275
O’Malley, Sentencing Law and Practice, 2nd Edition, (Dublin, 2006), para. 22.09
DPP v Duffy (Unreported, Court of Criminal Appeal, 21st December, 2001)
DPP v Galligan(Unreported, Court of Criminal Appeal, 23rd July, 2003)
The People (D.P.P.) v. Patrick Long [2006] IECCA 49
DPP v. Robert Henry (Ex tempore, Court of Criminal Appeal, 15th May, 2002)
People (DPP) v. Redmond [2001] 3 I.R. 390
R v. Bratzer(2001) NSCA 166
R v. Comier (1975) 9 N.S.R. (2d) 687
R v. Shropshire [1995] 4 S.C.R. 227
R. v. C.A.M. [1996] 1 S.C.R. 500

Byrne v. Judge Sean O’Leary – SC – Judicial review, report into affairs of company, conduct of interview by inspectors

By Mark Tottenham BL in Hardiman J No Comments Tags: ,

Byrne v. Judge Sean O’Leary [2011] IESC 38 (10 October 2011)

Supreme Court (Hardiman J, nem diss) allows appeal from High Court (Gilligan J), and grants judicial review of report by inspectors into affairs of company on grounds that interview of applicant did not comply with order appointing inspectors. (Full text.)

Judicial review – appeal from High Court decision to refuse relief – report of inspectors – appointment of respondents as inspectors under ss 8 and 17 of the Companies Act 1990 – affairs of Ansbacher Cayman Ltd – appointment of two further inspectors following resignation of original inspector – wording of High Court order appointing additional inspectors – requirement to conduct interview again if one inspector absent and “veracity” of evidence in doubt – absence of two inspectors during interviews with applicant – whether veracity of applicant’s evidence could be questioned without all inspectors being present during interview – definition of “veracity” – whether subjective or objective – whether veracity of the evidence or veracity (i.e. habitual truthfulness) of the witness – whether conclusion adverse to the applicant required a hearing by all inspectors.

A.G. v. Casey [1963] I.R.33

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