C.C. v Ireland, Attorney General, and DPP v P.G. v Ireland, Attorney General, and DPP

JudgeMr. Justice Geoghegan,MR JUSTICE FENNELLY,Denham J.
Judgment Date12 July 2005
Neutral Citation[2005] IESC 48
CourtSupreme Court
Docket NumberAppeal No. 357/04
Date12 July 2005

[2005] IESC 48


Denham J

Hardiman J

Geoghegan J

Fennelly J

McCracken J

Appeal No. 357/04
Appeal No. 358/04
C (C) & G (P) v IRELAND & ORS


Ireland, the Attorney General, and The Director of Public Prosecutions




Ireland, the Attorney General, and The Director of Public Prosecutions

Attorney General (Shaughnessy) v Ryan (Cormack) 1960 IR 181 1960 95 ILTR 197

B (A minor) v Director of Public Prosecutions 2000 2 AC 428 2000 2 WLR 452 2000 1 All ER 833

BC Motor Vehicle Act, In Re 1985 2 SCR 486

Brend v Wood 1946 62 TLR 462

Browne v Ireland 2003 3 IR 205

Curtis v The Attorney General 1985 IR 458 1986 ILRM 428

DPP v Special Criminal Court 1999 1 IR 60 1998 2 ILRM 493

Doolan v Director of Public Prosecutions 1992 2 IR 399 1993 ILRM 387

The Employment Equality Bill 1996 1997 2 IR 321

HM Advocate v Watson 23 SLR 267

Howard v Commissioners of Public Works 1994 1 IR 101 1993 ILRM 665

Kenlin v Gardiner 1967 2 QB 510 1967 2 WLR 129 1966 3 AER 931

Maguire v Shannon Regional Fisheries Board 1994 3 IR 580

Michael M v Superior Court of Sonoma County 1981 450 US 464

Montana v Egelhoff 518 US 37

O'Brien v O'Halloran 2001 1 IR 556

O'C (S) v Governor of Curragh Prison 2002 1 IR 66

People v Hernandez (1964) 39 Cal Rep 361

DPP v F (E) Unrep Supreme Court 24.2.1994 1994/2/557

The People v Murray 1977 IR 360 1976 111 ILTR 65

DPP v Redmond 2001 3 IR 390

DPP v S (M) 2003 1 IR 606

DPP v Y (N) 2002 4 IR 309

Queen v Peters 1956 VLR 73

Proudman v Dayman 1941 67 CLR 536

R v Beale 1865 LR 1 CCR 10

Reg v Booth 1872 12 Cox CC 231

R v City of Sault Sainte Marie 1978 2 SCR 1299 1978 85 DLR 161

R v Forbes 1865 10 Cox CC 362

R v Forde 1923 2 KB 400

R v Galvin (No 1) 1961 VR 733

R v Galvin (No 2) 1961 VR 740

R v Hess; R v Nguyen 1990 2 SCR 906

R v Howes 1860 3 E & E 382

Regina v K 2001 UKHL 41 2002 1 AC 462 2001 3 WLR 471 2001 3 AER 897

R v McLeod 1954 111 Can CC 106

R v Mark 1961 Crim LR 173

R v Maughan 1934 24 Cr App R 130

R v Maxwell 1909 2 Cr App R 26

Reg v Mycock 1871 12 Cox CC 28

Reg v Olifier 1866 10 Cox CC 402

R v Prince 1875 LR 2 CCR 154 1874-80 All ER Rep 1881 1875 13 Cox CC 138

R v Reynhoudt 1962 107 CLR 381 1962 ALR 483

Reg v Robins 1844 1 C&K 456

R v Spurge 1961 2 QB 205 1961 3 WLR 23 1961 2 All ER 688 59 LCR 323

R v Tolson 1889 23 Q BD 168

R v Vaillancourt 1987 2 SCR 636

Sherras v De Rutzen 1895 1 QB 918 11 TLR 462

Shannon Regional Fisheries v Cavan County Council 1996 3 IR 267

State (Healy) v O'Donoghue 1976 IR 325

Sweet v Parsley 1970 AC 132 1969 2 WLR 470 1969 1 All ER 347

Thomas v The King 1937 59 CLR 279

Transport Salaried Staffs' Association and Others v Córas Iompair Éireann 1965 IR 180

U.S. v Wilson 159 F 3d 280

Wisconsin v Jadowski 2004 WI 68


Sexual assault

Defences - Mens rea - Defence of mistake - Common law offence - Whether defence excluded - Whether mistake genuine - Whether mistake reasonable - Whether objective test - Appeal in relation to sexual assault allowed (357 & 358/2004 - SC - 12/7/2005) [2005] IESC 48 - C (C) v Ireland


Unlawful carnal knowledge

Defences - Mens rea - Requirement of mens rea not expressly stated in statute - Availability of defence - Whether offence of unlawful carnal knowledge one of strict liability - Whether knowledge or reasonable belief as to age of complainant constitutes defence - Whether defence of mistake open to accused - Whether defence of consent of complainant open to accused - Criminal Law (Amendment) Act 1935 (No 6), ss 1(1) and 14 - Criminal Law (Rape) (Amendment) Act 1990 (No 32), s 2 - Appeal dismissed (357 & 358/2004 - SC - 12/7/2005) [2005] IESC 48 - C (C) v Ireland


Judgment delivered on the 12th day of July, 2005 by Denham J.


1. Three cases were heard together in the High Court and, judgment was delivered by Smyth J. on the 6th day of June, 2004, where, for the reasons given, the declarations sought by J. M., C. C., and P. G., were refused. Against that order and judgment C. C., and P. G., have appealed to this court.


2. J. M., has appealed the costs order only, which issue will be addressed at a later stage. C. C. and P. G. proceeded before this Court on substantive issues.


3. I shall consider first the appeal of C. C., and then the case of P. G..

The Application of C. C.

4. The applicants are each awaiting trial in the Dublin Circuit (Criminal) Court, having been charged with sexual offences against the same complainant.


5. C. C. is charged with four offences, namely:


(i) That on the 20th day of July, 2001, he had unlawful carnal knowledge of a female under the age of 15 years contrary to s.1 (1) of the Criminal Law (Amendment) Act, 1935;


(ii) That on the 2nd day of August, 2001, he had unlawful carnal knowledge of a female under the age of 15 years, contrary to s. 1(1) of the Criminal Law (Amendment) Act, 1935;


(iii) That on the 10th day of August, 2001, he had unlawful carnal knowledge of a female under the age of 15 years contrary to s.1 (1) of the Criminal Law (Amendment) Act, 1935; and,


(iv) That on the 16th day of August, 2001, he had unlawful carnal knowledge of a female under the age of 15 years contrary to s.1 (1) of the Criminal Law (Amendment) Act, 1935.


6. The complainant was approximately 13 years 10/11 months at the time of the alleged offences, having been born on the 3rd day of September, 1987.


7. C. C. made a statement to the Garda Síochána in which he stated that he had consensual sexual intercourse with the complainant. It was submitted that there were grounds upon which he could have believed reasonably that the complainant was over 15 years of age. He instructed his solicitor that he had believed that the complainant was over 15 years of age. On behalf of C. C. it was submitted that his reasonable belief in the age of the complainant would form part of his defence if it were not for the apparent prohibition in law of such a defence.


8. The reliefs sought by C. C. on this application for judicial review include:


(a) A declaration that knowledge, reasonable belief as to the age of the complainant, on the part of the applicant, is a defence.


(b) A declaration that the exclusion of the defence of mistake as to age is repugnant to the Constitution, that if the offence created in s.1 (1) of the Criminal Law (Amendment) Act, 1935is an offence of strict liability it is inconsistent with the Constitution.

9. Out of time

The learned High Court judge held that the applicants" application for judicial review was out of time and had not been made promptly. However, he determined that the issues in the instant case were far too important to permit the judicial review application to be decided on a time point only unless some serious prejudice has or is likely to be caused. He held that prejudice in this context is not confined to the parties but is to be considered in the context of a fair and efficient justice system to the whole community. Further, he relied on the public policy that proceedings relating to public domain law should take place promptly, except where good reason is furnished. In all the circumstances, including the delivering of a fair and just legal system, the learned trial judge permitted the applications for judicial review proceed. On this preliminary issue I am in agreement with Geoghegan J. that as the indictment had not been served in either case neither applicant was out of time to seek leave for judicial review.

10. The propriety of an application for judicial review

Submissions were made that the proceedings were a moot, that the trial had not yet taken place, that the Court would have to deal with hypothetical facts, and that thus the matter was inappropriate for judicial review.

11. Locus Standi

The applicants have locus standi to seek judicial review, they are in imminent danger of a criminal trial which affects them: Curtis v The Attorney General [1985] I.R 458.However, that being established, it is necessary then to consider whether the remedy of judicial review is appropriate given that the application is made in relation to a criminal process.


12. In all the circumstances of this case, including the fact that the learned trial judge had given a judgment on the merits of the case, this Court was in a position where it had no real choice and I am satisfied that it had to proceed to consider the substantive issues.


13. However, I would add a few words on the situation. These three cases are at their preliminary stages. The High Court found that the relevant law, from decided cases, to guide the Court, was as follows:


2 "1. The overwhelming responsibility reposed by the law and the Constitution on the trial judge is to ensure the fairness of the trial. An exceptionally important aspect of this function is to adjudicate on the evidence which should be placed before the jury...


2. The Circuit Court did not have jurisdiction to hear and determine an application to the effect that a statute enacted prior to the coming into force of the Constitution was inconsistent with the Constitution. ( The People (Director of Public Prosecutions) -v- M.S. [2003] 1 I.R 606).


3. Judicial review was an available remedy in principle which permitted challenges to decisions made in the course of a criminal trial, but only in the most exceptional circumstances. ( DPP v Special Criminal Court [1999] 1 I.R 60)".


The learned trial judge considered whether these cases should fall into the category of exceptional cases. He raised the question:

"If every case in criminal law prior to trial in the Circuit Court raised a question of the...

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