Carlisle v Orr

• Jurisdiction: Ireland
• Judgment Date: 19 June 1917
• Date: 19 June 1917
• Docket Number: (1917. No. 2999.)
• Court: Court of Appeal (Ireland)

Carlisle

and

Orr (1).

K. B. Div.

Appeal.

(1917. No. 2999.)

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1917.

Cause of Action — Alleged felony — No Prosecution — Infant plaintiff.

In an action by an infant plaintiff, suing by her next friend, the statement of claim averred that “the defendant assaulted and beat the plaintiff, who then was an infant, under the age of sixteen years, and then and there had carnal knowledge of her.” The defendant moved to stay proceedings on the ground that the only cause of action disclosed by the statement of claim was a felony, for which the defendant had not been prosecuted.

Held, by the Court of Appeal (affirming the King's Bench Division), that the statement of claim did not unequivocally or necessarily charge a felony, and that the Court, in the exercise of its discretion, ought not to stay proceedings.

Smith v. Selwyn, [1914] 3 K. B. 98, distinguished.

Notice of Motion on the part of the defendant for an order that all proceedings in the action be stayed on the ground that the proceedings were an abuse of the process of the Court, and that the only cause of action disclosed by the statement of claim was in respect of an alleged felony for which the defendant had not been prosecuted.

The statement of claim, which was delivered on the 17th of April, 1917, was as follows:—

“1. In July, 1912, at No. 7 Crumlin Road, in the county of the City of Belfast, the defendant assaulted and beat the plaintiff, who then was an infant under the age of sixteen years, and then and there had carnal knowledge of her.

“2. In consequence the plaintiff suffered great physical pain and mental distress, and incurred expense for medical attendance, and the plaintiff claims £1,000 damages.”

The defendant, in an affidavit, submitted that the allegations in the statement of claim meant that he had been guilty of a felony, and stated that no prosecution of any kind was ever

brought against him in respect thereof. The plaintiff in her affidavit stated that she was advised, and believed that the assault complained of constituted a misdemeanour, and that therefore a criminal prosecution was not an essential preliminary to her bringing the action, and further, that the time within which criminal proceedings should have been instituted had long since expired. She stated that at the time of the said assault she was an infant under the age of sixteen years, and that it was not until recently that she became aware of her right of action against the defendant.

D. M. Wilson K.C. and Wm. Beattie, for the defendant.

J. Williamson K.C. and Wm. Lowry, for the plaintiff.

The arguments were similar to those in the Court of Appeal.

D. M. Wilson K.C. and Wm. Beattie, for the defendant.

J. Williamson K.C. and Wm. Lowry, for the plaintiff.

Gibson J.:—

The motion is based on two propositions: (1) that the claim imports absence of consent and should be construed as charging rape; (2) that on the pleading so construed the defendant is entitled to have the action stayed till a prosecution is brought and disposed of, the principle of law being that a party injured by a felonious act cannot obtain civil redress till public justice is satisfied. In the old cases the felonious character of the conduct founding the action was disclosed by the evidence at the trial, when it became, as was then held, the duty of the judge to non-suit, the action having been prematurely brought. This, the logical course, but difficult in application, is now supposed to be displaced by substituting a motion to stay in the interest of the defendant. As the defendant could not plead his own felony as a defence, such motion must necessarily be founded on the pleading or on evidence given by the plaintiff, whether by affidavit before the trial, or at the trial itself. Such motion treats the action as rightly brought but suspended in operation. Though some misdemeanours, for example under the Whiteboy Act, 1 & 2 Wm. IV, c. 44, involved punishment for life, the suspension of the civil remedy was confined to felony, whether because felony was a capital offence, or because it caused forfeiture (now removed), which Blackstone thought was the true criterion of felony, or because the trespass was drowned in the felony. In Crosby v. Leng (1), even after acquittal, the point was relied on as a ground of non-suit. The ancient law is discussed in Pollock and Maitland, ed. 1895, at pp. 465 and 509. The rule had the result that if the felon was convicted, his death by execution killed any right of personal action, and in other actions the property off which a judgment could be levied was swept away by forfeiture. The victim's civil rights could only receive pecuniary effect by giving a non-felonious character to the transaction, or by a verdict of acquittal. Public policy of encouraging prosecution would thus seem to be prejudiced rather than forwarded by making the criminal charge precede the civil. The real foundation for the rule was probably the interest of the King in forfeiture, as to which an exception was made in larceny to the limited extent of restitution of specific stolen property, ordered by statute to be given to the prosecutor by way of reward for performance of his duty. The venerable rule still survives, though the original reasons for it have long since disappeared.

The motion is based on Smith v. Selwyn (2), where the Court construed the claim as charging felony, and held that an application to stay was competent and proper. The pleading before us does not aver consent or absence of consent. It appears directed rather to a misdemeanour under sect. 5 of the Act of 1885, 48 & 49 Vict. c. 69, than to the felony of rape. It is said by Mr. Wilson that a claim founded on assault and carnal knowledge necessarily connotes absence of consent. I agree with this, apart from statute. Where a consensual act causes a breach of the peace, as in a prize fight or duel, consent is of no avail, but injury thence arising cannot support a civil action by a particeps criminis, not only from the principle volenti non fit injuria, but from the act consented to being criminal. Here consent was made impossible by statute. The assault may not be the less an assault because there was a prohibited consent. The girl was within the Children Act, 1908, and belonged to a protected class, to which Browning v. Morris (3) and Kearley v. Thomson (4) may apply. It would be

improper to pronounce a positive opinion on this question of the effect of consent in the present action, as the point must be decided later on before the judge at the trial and the Court in banc. Sect. 5 only gives conditional protection; the person charged can rely on consent where he believed on reasonable grounds that the girl was of the age of sixteen. The claim is consistent with acts constituting criminal misdemeanour, and the motion fails.

Construing it as charging felonious intercourse, and recollecting that, under sect. 9, on an indictment for rape the accused (subject to the time limit) might be convicted of misdemeanour, I think the motion must also be refused. The plaintiff's age makes it impossible to attribute to her default in performing the public duty. Default is considered the ground for applying the rule by Cockburn C.J. in Wells v. Abrahams (1), by Lord Parker in Admiralty Commissioners v. SS. “Amerika” (2), and by Swinfen-Eady L.J. in Smith v. Selwyn (3), where he quotes Lush J.:—A young person within the protection of the Children Act can hardly be supposed to be guilty of such a breach of duty. At this distance of time, the Attorney-General, who prosecutes in cases of this type, would not direct any prosecution. Smith v. Selwyn (4)dealt with wholly different facts.

Taking it that a motion to stay is now the appropriate procedure, such motion before the trial must depend on the pleadings or facts admitted by the plaintiff; for defendant could not set up his own felony as a ground for suspending the action. It seems curious that,, though neither conviction nor acquittal, as res inter alios acta, legally affects the civil trial, and though the defendant's motive is not solicitude for the claims of public justice but self-interest, such motion should be competent. In the cases before Wells v. Abrahams (1), either the judge at the trial (as in Crosby v. Leng) (5) made the point, or defendant's counsel raised the objection after trial on a new trial motion. The question was decided as matter of law by the judge and the Court. The allowance of the objection disposed of the action as having been

prematurely brought. The idea never occurred to the Court in those days that the action could be treated as properly brought, but that it could be suspended by an interlocutory motion by defendant—a motion not then subject to appeal—though probably, if the plaintiff had been so unwise as to charge felony in his pleading, the writ might have been set aside as an abuse of legal process. A motion which depends on the way the pleading is framed has little to recommend it on the grounds of public policy. The plaintiff need not describe the assault in the terms of felony; the pleading could be amended, and the distinctions between felony and misdemeanour on which the rule was based no longer exist. The Court, in applying this age-worn rule which still abides with us, should only act in a clear case where public justice manifestly requires the plaintiff to prosecute or bring the matter before the public prosecutor. Before a personal action can be suspended, depending as it does on the continued lives of the plaintiff and defendant, the Court should consider all the circumstances—the age of the plaintiff, the nature and surroundings of the alleged felony, whether there was a duty to prosecute, and whether such a prosecution was reasonably likely to have any result. It...