Coleman and Others v Ireland and Others

JurisdictionIreland
CourtHigh Court
JudgeMR. JUSTICE T.C. SMYTH
Judgment Date06 Jul 2004
Neutral Citation[2004] IEHC 288
Docket NumberHC 288/04

[2004] IEHC 288

THE HIGH COURT

HC 288/04
Record No. 715JR/2002
Record No. 716JR/2002
Record No. 714JR/2002
COLEMAN & ORS v. IRELAND & ORS
DUBLIN
(JUDICIAL REVIEW)
Between/
CHRISTOPHER COLEMAN
Applicant
-and-
Between/
JOSEPH MOLLOY
Applicant
-and-
Between/
PAUL GRACE
Applicant
-and-
IRELAND AND THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS

Citations:

RSC O.84 r21

CRIMINAL LAW (AMDT) ACT 1935 S1(1)

RSC O.84 r20(7)

CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S3

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2

SEX OFFENDERS ACT 2001 S37

CONSTITUTION ART 40.1

RSC O.84 r20(1)

CRIMINAL LAW (AMDT) ACT 1935 S1

CRIMINAL LAW (AMDT) ACT 1885 S4

CRIMINAL LAW (AMDT) ACT 1885 S5

CRIMINAL LAW ACT 1997 SCH I

CONSTITUTION ART 15.2.1

CRIMINAL PROCEDURE ACT 1967 S4(B)(1)

CRIMINAL JUSTICE ACT 1999 S9

F (S) V IRELAND UNREP SUPREME 22.3.2002 2002/11/2693

RSC O.84 r21(1)

G V DPP 1994 1 IR 587

B V DPP 1997 3 IR 140

L (P) (LENEHAN) V DPP & BUTTIMORE UNREP HERBERT 16.4.2002 2002/15/3585

EIRE CONTINENTAL TRADING CO V CLONMEL FOODS LTD 1955 IR 170

EASTERN HEALTH BOARD V FARRELL 2000 1 ILRM 44

BLANCHFIELD V HARTNETT 2002 3 IR 207

DPP, PEOPLE V S (M) 2003 1 IR 606

DPP V SPECIAL CRIMINAL COURT 1999 1 IR 60

OFFENCES AGAINST THE PERSON ACT 1861 S50

OFFENCES AGAINST THE PERSON ACT 1861 S51

OFFENCES AGAINST THE PERSON ACT 1861 S52

CRIMINAL LAW (AMDT) ACT 1912 S4(2)

CRIMINAL LAW (AMDT) ACT 1912 S4(3)

CRIMINAL LAW (AMDT) ACT 1885 S5(2)

CRIMINAL LAW (AMDT) ACT 1935 S1(2)

CRIMINAL LAW (AMDT) ACT 1935 S4

R V K 2002 1 AC 462

AG, SHAUGHNESSY V RYAN CORMACK 1960 IR 181

CRIMIANL LAW (AMDT) ACT 1935 S2(2)

DPP V MURRAY 1977 IR 360

CRIMINAL JUSTICE ACT 1964 S1

CRIMINAL JUSTICE ACT 1964 S4

R V GALVIN (NO 20 1961 VR 740

R V PRINCE 1875 LR 2 CCR 154

OFFENCES AGAINST THE PERSON ACT 1861 S55

OFFENCES AGAINST THE PERSON ACT 1861 S48

GAMMON (HONG KONG) LTD V AG OF HONG KONG 1985 AC 1

MAGUIRE V SHANNON REGIONAL FISHERIES BOARD 1994 3 IR 580

BLACK CLAWSON INTL V PAPIERWEKE WALDHOF ASCHAFFENBERG AG 1975 AC 591

O'BRIEN V O'HALLORAN 2001 1 IR 556

B (A MINOR) V DPP 2002 2 AC 428

CRIMINAL LAW (AMDT) ACT 1935 S14

TUOHY V COURTNEY 1994 3 IR 1

CONSTITUTION ART 26 OF THE EMPLOYMENT EQUALITY BILL, RE 1996 1997 2 IR 321

SHANNON REGIONAL FISHERIES BOARD V CAVAN CO COUNCIL 1996 3 IR 267

R V CITY OF SAULT ST MARIE 1978 85 DLR 3D

Abstract:

Criminal law - Sexual offences Statutory interpretation - Unlawful carnal knowledge - Whether need for prosecution to prove absence of genuine belief by defendant as to age of complainant - Whether statutory provision unconstitutional - Whether absence of requirement of prosecution to prove mens rea unconstitutional - Criminal Law Amendment Act 1935, section 1(1) - Bunreacht na hÉireann.

Judicial review - Delay in bringing judicial review application - Whether applicants within time for bringing judicial review proceedings - Whether applicants should be precluded from bringing judicial review proceedings on basis of delay in instituting same - Rules of the Superior Courts 1986, O. 84, r. 20(1).

the applicants were given leave to seek, inter alia, by way of judicial review, declarations that the Criminal Law Amendment Act 1935 was unconstitutional and that they were entitled to an acquittal in the event of the third respondent further prosecuting various offences of unlawful carnal knowledge of a minor thereunder. They alleged that the Act of 1935 was unconstitutional in so far as it purported to remove the requirement that the prosecution prove mens rea on the part of an accused as to his knowledge of a girl’s age when charged with unlawful carnal knowledge. The respondents raised, as preliminary issues, the contention that the applicants had not applied for relief promptly or within the time set out in O. 84, r. 20(1) of the Rules of the Superior Courts 1986 and were precluded from obtaining relief thereby and that relief should not be granted prior to certain facts being established before the trial court, otherwise the High Court would be determining a moot.

Held by Smyth J in refusing the relief sought that, in considering the length of time to which the court should consider whether an application for judicial review had been made timeously, the date from which such time ran had to be first established and that time was to be calculated from the date of the decision of a District Court to return an accused for trial in the context of criminal proceedings. That, although the application for judicial review was out of time and had not been made promptly, the substantive issues were too important to be dismissed on the issue of time limits for applying for judicial review, unless serious prejudice was or was likely to be caused as a result thereof.

That the object of the Act of 1935, which was to protect young girls from themselves as much as from men, gave objective justification for a derogation of the necessity to prove mens rea in the offence of unlawful carnal knowledge and was not a disproportionate legislative response to the mischief being addressed by that Act.

That, in a case involving findings of fact and constitutional issues, the latter should not be embarked upon until there had been a determination of facts.

Obiter dicta: that the role of the courts in assessing the constitutionality of an act of the Oireachtas in which the legislature had engaged in a balancing exercise between the individual and the community, was not to impose its view of the correct or desirable balance in substitution for the views of the legislature, but to consider and determine objectively whether the balance set forth in impugned legislation was contrary to reason and fairness such as to constitute an unjust attack on an individual’s constitutional rights.

An applicant who swears an affidavit in support of judicial review proceedings, even if the subject of an order permitting cross-examination on affidavit, is not precluded from refusing to answer such questions as may possibly be self-incriminatory.

Reporter: P.C.

1

APPROVED JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON TUESDAY, 6TH JULY 2004

MR. JUSTICE SMYTH:

These applications have

been heard together because

2

they raise common issues as to:- (a) the date from which time is to be calculated for the purposes of 0. 84 r.21 of the Rules of the Superior Courts if a Judicial Review process is to be a precursor to a criminal trial, (b) the propriety or the application of the process of Judicial Review in advance of a criminal trial, (c) questions of statutory interpretation and (e) the constitutionality of statutes.

3

All three Applicants have been charged with sexual offences against the same female girl or young person at different times. The Applicants were sent forward for trial from the District Court on 10th June 2002 and all the cases were listed for arraignment on 15th and 29th July 2002. The applications for leave for Judicial Review were brought before the Court on 6th November 2002 when Murphy J. extended the time up to that date to apply for Judicial Review. As of that date, the trial had been fixed for 13th November 2002. No Applicant has been served with the indictment, although there is no express averment to this fact in the case of the Applicant Molloy.

The Case of Coleman.
4

This Applicant is charged on four counts of unlawful carnal knowledge of a female under the age of 15 years contrary to Section 1(1) of the Criminal Law (Amendment) Act 1935(hereinafter referred to as "the Act of 1935") on different dates at different places over the period 20th July 2001 to 16th August 2001.

5

In the affidavit of Mr. Ronald Lynham, the Applicant's Solicitor, it is averred "that it appears from the Book of Evidence upon which the prosecution is grounded that:-

6

(a) The Complainant in respect of the alleged offences was approximately 13 years 10/11 months old at the time of the alleged offences, having been born on 3rd September 1987, according to the date of birth recorded in her Mother's statement to the Gardaí;

7

(b) The Applicant made a statement to the Gardaí in which he stated he had consensual sexual intercourse with the Complainant.

8

(c) There are grounds upon which the Applicant could reasonably have believed that the Complainant was over 15 years of age".

9

This Applicant was granted leave to seek the following reliefs:-

10

(a) Judicial Review by way of a Declaration that the exclusion of the defence of mistake by the Applicant as to the age of the Complainant in the said prosecution is repugnant to the Constitution.

11

(b) Judicial Review by way of a Declaration that knowledge or in the alternative reasonable belief on the part of the Applicant that the Complainant was 15 years or over is a defence.

12

(c) An Order pursuant to 0. 84 r.20 (7) staying the said prosecution pending the determination of the proceedings herein.

13

Leave was granted on all six grounds set out in the “Statement of Grounds”.

The Case of Molloy.
14

This Applicant is charged with two counts relating to 10th August 2001 of unlawful carnal knowledge of a female under the age of 15 contrary to Section 1(1) of the Act of 1935 and (2) that he did commit an act of buggery with a person under the age of 17 contrary to Section 3 of the criminal Law (sexual Offences) Act 1993(hereinafter referred to as "the Act of 1993").

15

In the affidavit of Mr. Ronald Lynham, the Applicant's Solicitor, it is averred "that it appears from the Book of Evidence upon which the prosecution is grounded that:-

16

(a) The Complainant in respect of the alleged offence was 13 years, 11 months old at the time of the said alleged offence, having been born on 3rd September 1987 according to the date of birth recorded in her statement to the Gardaí;

17

(b) The Applicant made a statement to the Gardaí in which he stated that...

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