O'Brien v District Judge Patwell

JurisdictionIreland
JudgeO'Hanlon J.,
Judgment Date01 January 1993
Neutral Citation1992 WJSC-HC 3891
Docket NumberRecord No. 285 JR/1991
CourtHigh Court
Date01 January 1993
O'BRIEN v. PATWELL
JUDICIAL REVIEW

BETWEEN

DAVID O'BRIEN
APPLICANT

AND

DISTRICT JUSTICE MICHAEL PATTWELL AND THE DIRECTOR OF PUBLICPROSECUTIONS
RESPONDENTS

1992 WJSC-HC 3891

Record No. 285 JR/1991

THE HIGH COURT

Synopsis:

CRIMINAL LAW

Return for trial

Preliminary examination - District Court - Powers - Additional charge - Insertion - Multiple charges - Same incident - Whether return contained unlawful similar charges - Interpretation Act, 1937, s. 14 - Criminal Procedure Act, 1967, s.8 - (1991/285 JR - O'Hanlon J. - 9/9/92) - [1993] ILRM 614

|O'Brien v. Pattwell|

Citations:

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 S1

CRIMINAL LAW (AMDT) ACT 1935 S2

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S8

CRIMINAL PROCEDURE ACT 1967 S6

CRIMINAL PROCEDURE ACT 1967 S8

CRIMINAL PROCEDURE ACT 1967 S8(2)

O'SHEA V DPP & AG 1989 ILRM 309

1

Judgment delivered by O'Hanlon J.,the 9th day of September, 1992.

2

The Applicant in these judicial review proceedings challenges the validity of the Order of the first-named Respondent made in exercise of his powers under the Criminal Procedure Act, 1967, sending the Applicant forward for trial to the Central Criminal Court on four separate charges.

3

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 referred to in Fitzgibbon Street Charge Sheet 423/90; Fitzgibbon Street Charge Sheet 424/90, and Fitzgibbon Street Charge Sheet 425/90, respectively, and also contained in the written Statement of Charges served on the Applicant prior tothe preliminary hearing in the District Court, in compliance with the provisions of the Criminal Procedure Act, 1967, section 6 (1) (a).

4

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 said female contrary to section 61 of the Offences Against the Person Act, 1861, and he thereupon made an Order in relation to all four charges that the Applicant be sent forward for trial on the said offences to the Central Criminal Court.

5

The Applicant seeks an order of certiorari to quash the said return for trial claiming -

6

(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 the Applicant

7

(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 substitutioin for one of the charges which had already been brought against theApplicant.

8

Counsel for the Applicant, in support of the first ground put forward for seeking relief, relied on the provisions ofsection 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. Ml. Coughlan, (2nd February 1968, Frewen, Vol. 1, p. 325).

9

Section 14 of the Interpretation Act, 1937, reads as follows:-

"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 contrary intention 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."

10

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 threeyears" penal servitude in respect of each count, the sentences to run concurrently.

11

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 was not properly open to them to convictthe appellant of attempted carnal knowledge in respect of the sameincident.

12

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

13

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

14

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 inconsistency between the convictions on the first two counts and that on the third, and similarly between the convictions on the fourth and fifth counts and that on the sixth. As regards the form of the indictment, the provisions of section 14 of the interpretation Act, 1937, make it clear that an accused should not be charged with the same offence both at common law and under a statute. In our opinion, this applies here and one or other of the convictions on the first and second and fourth and fifth counts must go. Having regard to the identity of punishment it makes no matter which. The Court will set aside the two convictions of rape.

15

The matter arose for consideration again in Coughlan's case, when Haugh J., presiding in the Court of Criminal Appeal, commented as follows in a case where the Applicant had again been convicted of rape and of having unlawful carnal knowledge of a girl under the age of 15 years, and sentenced on both charges - both charges arising out of the same incident:

16

All the gounds in the notice of application for leave to appeal, save three, relate to the evidence of the prosecutrix. The first of these relates to the fact that the applicant was charged, convicted andsentenced on two counts arising out of the same act; the one charging a common law offence, the other statutory. Mr. Johnston, whose entire argument was most able and persuasive, relied on the decision of this Court in The People (at the suit of the Attorney General) v.Dermody, (1956) IR 307 in support of the proposition that, in view of Section 14 of the Interpretation Act, 1937, the applicant could not properly be charged with both rape and unlawful carnal knowledge in respect of the same incident. Alternatively, he says, the applicant could not have been convicted of both offences, and, in the further alternative, should not have been punished for both. The Court has considered the judgment in the case cited and the relevant statutory provision. It would appear that under the statute an offender cannot be punished twice for the same offence. It is, perhaps, open to argument whether rape and the offence of unlawful carnal knowledge created by Section 1 sub-section (1) of the Criminal Law (Amendment) Act, 1935are "the same offence" within the meaning of these words in Section 14 of the Interpretation Act, in view of the fact that the consent of the prosecutrix is a material element in the former offence whereas in the latter it...

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1 cases
  • O'B v Pattwell
    • Ireland
    • Supreme Court
    • 28 Junio 1994
    ...in s. 14 of the Act of 1937 was directed only against the possibility of double punishment in respect of the same incident (see [1993] ILRM 614). He also held that a district judge exercising his powers under the 1967 Act was not precluded from adding charges in addition to those already co......

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