O'B v Pattwell

• Jurisdiction: Ireland
• Judge: O'Flaherty J.
• Judgment Date: 28 June 1994
• Neutral Citation: 1994 WJSC-SC 3766
• Court: Supreme Court
• Docket Number: 324/92
• Date: 28 June 1994

1994 WJSC-SC 3766

THE SUPREME COURT

O'Flaherty J.

Egan J.

Denham J.

324/92

O'B v. PATTWELL

BETWEEN

O'B.

Applicant/Appellant

AND

JUDGE MICHAEL PATTWELL AND THE DIRECTOR OF PUBLICPROSECUTIONS

Respondents

Citations:

O'B V PATTWELL UNREP O'HANLON 9/9/1992

CRIMINAL PROCEDURE ACT 1967

CRIMINAL LAW (RAPE) ACT 1981 S10

CRIMINAL LAW (AMDT) ACT 1935 S1(1)

CRIMINAL PROCEDURE ACT 1967 S6(1)(a)

OFFENCES AGAINST THE PERSON ACT 1861 S61

INTERPRETATION ACT 1937 S14

AG, PEOPLE V DERMODY 1956 IR 307

AG, PEOPLE V COUGHLAN 1 FREWEN 325

CRIMINAL LAW (AMDT) ACT 1935 S3

R V RUSSEN 1 EAST PC 439

R V AUDLEY 1 HALE PC 629

CRIMINAL LAW (RAPE) ACT 1981 S2(1)

AG V RYAN 91 ILTR 164

CRIMINAL PROCEDURE ACT 1967 S8(2)

O'SHEA V DPP & AG 1988 IR 655

CRIMINAL PROCEDURE ACT 1967 S18

CRIMINAL PROCEDURE ACT 1967 S6

CRIMINAL PROCEDURE ACT 1967 S7(4)

CRIMINAL PROCEDURE ACT 1967 S13

Synopsis:

CRIMINAL LAW

Indictment

Counts - Charges - Joinder - Propriety - Rape - Unlawful carnal knowledge of girl contrary to statute - Separate offences - (324/92 - Supreme Court - 28/6/94)

|O'B. v. Pattwell|

CRIMINAL LAW

Return for trial

Preliminary examination - District Court - Powers - Additional charge - Insertion - Multiple charges - Rape at common law and unlawful carnal knowledge of girl contrary to statute - Same incident - Submission that return contained unlawful similar charges - Criminal Law Amendment Act, 1935, s. 1 - Interpretation Act, 1937, s. 14 - Criminal Procedure Act, 1967, ss. 8, 18 - Criminal Law (Rape) (Amendment) Act, 1990, s. 8 - (324/92 - Supreme Court - 28/6/94)

|O'B. v. Pattwell|

WORDS AND PHRASES

"Same offence"

Prosecution - Charges - Co-existence - Propriety - Rape at common law and unlawful carnal knowledge of girl contrary to statute - Same incident - Submission that return for trial contained unlawful similar charges - (324/92 - Supreme Court - 28/6/94)

|O'B. v. Pattwell|

1 Judgment of O'Flaherty J.delivered the28th day of June, 1994. [NEM DISS]

2 This is an appeal from the judgment and order of the High Court (O'Hanlon J.) of the 9th September, 1992 in procedings in which theapplicantchallenged the validity of the order of Judge Pattwell made in apparent exercise of his powers under the Criminal Procedure Act, 1967 sending the applicant forward for trial to the Central Criminal Court on fourcharges.

3 I gratefully adopt the summary of the background facts and the course that the case took in the High Court from the learned High Court judge'sjudgment.

4 The first charge was one of indecent assault contrary to common law and section 10 of the Criminal Law (Rape) Act, 1981. The second was one of unlawful carnal knowledge of a girl under the age of 15 years, contrary to section 1(1) of the Criminal Law (Amendment) Act, 1935. The third was one of unlawful carnal knowledge of a named female forcibly and against her will contrary to common law. These were the charges contained in the written statement of charges served on the applicant prior to the preliminary hearing in the District Court, in compliance with the provisions of section 6(1)(a) of the Criminal Procedure Act, 1967.

5 In the course of the preliminary hearing before the first-named respondent, the said respondent decided that there was a sufficient case to put the applicant on trial for the said three offences. He also concluded that there was a sufficient case to put the applicant on trial for the further offence of buggery committed against the same female contrary to section 61 of the Offences Against the Person Act, 1861. He made an order in relation to all four charges that the applicant be sent forward for trial on the said offences to the Central CriminalCourt.

6 The applicant sought an order of certiorari to quash the said return for trial claiming-

7 (1) that in relation to the second and third charges it was not permissible to send the applicant forward for trial on both the said charges and that the prosecution had to be put to its election as to which of the said charges was to be presented against theapplicant;

8 (2) that, in relation to the fourth charge, the first-named respondent had no jurisdiction to add that charge to the charges which had already been brought against the applicant unless he did so in substitution for one of the charges which had already been brought against the applicant.

9 Counsel for the applicant, Mr. Durcan S.C., in support of the first ground, relied on the provisions of section 14 of the Interpretation Act, 1937 and on the decisions of the Court of Criminal Appeal in the cases of The People (Attorney General) .v. Dermody (1956) IR 307, and The People (Attorney General) .v. Coughlan (2nd February 1968, Frewen, Vol. 1p. 325).

10 He also submitted that since on a charge of rape it was permissible under section 3 of the 1935 Act to find an accused guilty of an offence under section 1(i) of the same Act that that went to show that since the power was given by the legislature so to convict then it followed that it was not permissible toinclude an express count in the indictment in addition to a count of rape. I can dispose of this latter submission shortly. Just because a particular statute provides for the conviction of an offence as an alternative to a particular count laid in the indictment does not make it wrong to include an express count in the indictment. Indeed, in most cases it will be the right thing to do to make clear to a jury what charges they have to consider. It will be clear to a jury what the charges are if they are all set forth in express terms as separate counts in an indictment instead of requiring a jury to make a possible finding of an offence the precise ingredients of which are not set forth in the indictment.

11 To deal with the rest of counsel's submission on this first point, section 14 of the Interpretation Act, 1937 reads asfollows:-

12 2 "14. - Where any act, whether of commission or omission, constitutes an offence under two or more statutes or under a statute and at common law, the offender shall, unless the contraryintention appears, be liable to be prosecuted and punished under either or any of those statutes or at common law, but shall not be liable to be punished twice for the same offence."

13 In Dermody's case the appellant was convicted on two counts of rape of a girl under 14 years of age, two of unlawful carnal knowledge of the same girl and two of attempted carnal knowledge. Each set of three counts of rape, of carnal knowledge and of attempted carnal knowledge related to one incident only. He was sentenced to three years' penal servitude in respect of each count, the sentences to runconcurrently.

14 It was held by the Court of Criminal Appeal that in view of the provisions of section 14 of the Interpretation Act, 1937, the appellant could not properly be charged both with rape and with unlawful carnal knowledge in respect of the same incident and that if the jury accepted that the appellant was guilty of the substantive offence of rape or of unlawful carnal knowledge, it wasnot properly open to them to convict the appellant of attempted carnal knowledge in respect of the same incident.

15 The convictions on the charges of rape and attempted carnal knowledge were, accordingly, struck out by the Court of Criminal Appeal;

16 Maguire, C.J. delivering the judgment of the Court, dealt with this aspect of the appeal as follows (at p. 313):

17 Although not raised by the appellant either at the trial or here, the Court thought it right to draw attention to the form of the indictment and also to the...