Doolan v DPP

JurisdictionIreland
JudgeO'Hanlon J.,
Judgment Date01 January 1993
Neutral Citation1992 WJSC-HC 3455
CourtHigh Court
Docket Number[1991 No. 147JR],Record No. 147/1991
Date01 January 1993

1992 WJSC-HC 3455

THE HIGH COURT

Record No. 147/1991
DOOLAN v. DPP
Judicial Review
BETWEEN/
MAURICE DOOLAN
APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

Citations:

CRIMINAL LAW (RAPE) ACT 1981 S10

OFFENCES AGAINST THE PERSON ACT 1861 S52

CRIMINAL LAW (AMDT) ACT 1935 S6

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2

SEXUAL OFFENCES ACT 1956 S14 (UK)

SEXUAL OFFENCES ACT 1956 S15 (UK)

BLACKSTONES COMMENTARIES ON THE LAW OF ENGLAND VOL 4 CH 15

OFFENCES AGAINST THE STATE ACT 1861 S36

OFFENCES AGAINST THE STATE ACT 1861 S38

OFFENCES AGAINST THE STATE ACT 1861 S42

OFFENCES AGAINST THE STATE ACT 1861 S43

FOLEY, STATE V CARROLL 1980 IR 150

MCCARTHY, STATE V GOVERNOR OF MOUNTJOY UNREP SUPREME 20.10.67

O, STATE V O'BRIEN 1971 IR 42

R V BOSTOCK 1893 17 COX CC 700

INTERPRETATION ACT 1937 S14

R V PLUMMER 1902 2 KB 339

AG V FITZGERALD & ORS 1964 IR 458

OFFENCES AGAINST THE PERSON ACT 1837 S11

R V BENNETT 1866 4 F & F 1105

R V MCGAHERN 3 CAR & KIR 320

Synopsis:

CRIMINAL LAW

Offence

Creation - Dispute - Common law - Statute law - Indecent assault - Term habitually used in enactments specifying penalties for persons convicted of such offence - Absence of express statutory creation of offence - Whether offence known to common law - Criminal Law (Rape) Act, 1981, s. 10 - (1991/147 JR - O'Hanlon J. - 15/9/92) - [1992] 2 I.R. 399 - [1993] ILRM 387

|Doolan v. Director of Public Prosecutions|

WORDS AND PHRASES

"Indecent assault"

Offence - Creation - Dispute - Common law - Statute law - Term habitually used in enactments specifying penalties for persons convicted of such offence - Absence of express statutory creation of offence - Whether offence known to common law - (1991/147 JR - O'Hanlon J. - 15/9/92) - [1992] 2 I.R. 399 - [1993] ILRM 387

|Doolan v. Director of Public Prosecutions|

1

Judgment delivered by O'Hanlon J., the 15th day of September, 1992.

2

The Applicant, Maurice Doolan, was indicted before His Honour Judge Michael Moriarty in the Dublin Circuit Court on the 11th June, 1991, on two charges, the first being a charge of indecent assault on a named female on the 24th June, 1990, "contrary to Common Law as provided for in Section 10 Criminal Law (Rape) Act, 1981. Contrary form of the Statute in such case made and provided".

3

The second count in the indictment charged him with assault against the said person on the said date "contrary to Common Law and contrary to form of the Statute in such case made and provided".

4

Before being arraigned, his Counsel, Mr. Mackey, challenged the validity of the indictment, contending that there was no offence known to the law as that of "indecent assault" and that accordingly the first count should be struck out of the indictment. As there was a good deal of pressure on the criminal list that day, with large numbers of jurors called for service, it was not opportune to embark on a lengthy argument at that stage. On the suggestion of Counsel for the Director of Public Prosecutions the learned trial Judge indicated that the Applicant would initially be arraigned only on the charge referred to in Count No. 2 (which referred to the charge of common assault). without prejudice to the argument to be advanced at a later stage seeking to quash Count No. 1.

5

Mr. Mackey then indicted that his client proposed to plead guilty to the charge in Count No. 2; on the trial Judge enquiring from Counsel for the State whether that was acceptable to the Director of Public Prosecutions he was informed that it was not, but the arraignment on that charge went ahead and the Applicant pleaded guilty.

6

Thereafter a legal argument took place concerning the validity of Count No. 1 and on the following day, 12th June, 1991, Judge Moriarty gave his decision, ruling against the submission put forward on behalf of the Applicant. Application was then made on behalf of the Applicant to the High Court for the purpose of seeking leave to apply for judicial review of the decision of the learned Circuit Court Judge, and in particular to seek an order of prohibition to prevent any continuance of the criminal proceedings against the Applicant in relation to the charge referred to in Count No. 1 of the said indictment.

7

On the 12th June, 1991, an Order was made by Mr. Justice Morris in the High Court giving leave to apply for this relief on the ground relied on by the Applicant, that the said Count No. 1 in the Indictment disclosed no offence known to the law either under the Common Law or Statute. By a further Order of the High Court (Mr. Justice Lardner) made on the 29th July, 1991, leave was granted to the Applicant to amend the grounds on which relief was sought by the addition thereto of the further plea that, "In the alternative, Count 1 of the indictment herein charges the simple offence of assault, albeit of a higher category to that charged in Count 2 and the Court having accepted a plea to the said Count 2 the Director of Public Prosecutions is precluded from proceeding pursuant to the said Count 1 of the Indictment."

8

In support of the contention that the offence of "Indecent Assault" was unknown to the law - either Common Law or Statute Law - Mr. Mackey relied on the fact that no such offence was referred to under that particular title in earlier texts from which the content of the Common Law may be gleaned, and this appears to be generally correct. Insofar as the matter has since been dealt with by Statute Law he pointed out that the Offences Against the Person Act, 1861, sec.52, does not spell out that it shall be a felony or a misdemeanour to commit an indecent assault against a female, nor purport to create a new criminal offence, but merely specifies the penalty that may be imposed on any person "convicted of any indecent assault upon any female".

9

Similar provisions are to be found in the Criminal Law (Amendment) Act, 1935, sec. 6, and in the Criminal Law (Rape) Act, 1981, sec.10, which provided as follows -

"10.- (1) If a person is convicted on indictment of any indecent assault upon a female he shall be liable to imprisonment for a term not exceeding 10 years."

10

Sec. 6 of the Act of 1935 was thereby repealed.

11

Sec. 10 of the Act of 1981 has in turn, been repealed by the Criminal Law (Rape) (Amendment) Act, 1990, which contained a new provision in sec.2 dealing with the offence of indecent assault in the following terms -

12

2 "2.- (1) The offence of indecent assault upon any male person and the offence of indecent assault upon any female person shall be known as sexual assault.

13

(2) A person guilty of sexual assault shall be liable on conviction on indictment to imprisonment for a term not exceeding 5 years.

14

(3) Sexual assault shall be a felony."

15

When the matter came to be dealt with in the English Sexual Offences Act, 1956, it was specifically provided by sec.14 of the Act that an indecent assault upon a female (of any age) is a misdemeanour, with a similar provision in sec.15 in relation to indecent assault upon a male, and separate penalties are provided for each offence.

16

For the Applicant it is submitted that in the absence of evidence to be derived from the history of criminal law here and in England that a specific offence of indecent assault was known to the Common Law, and in the absence of any express provision in the Offences Against the Person Act, 1861, or any subsequent legislation applicable in this jurisdiction and dealing with the topic of sexual offences, (with the possible exception of the Act of 1990 referred to above), creating a statutory offence of indecent assault, then it must be considered that the offence was unknown to the law at the time when the offences charged against the Applicant are...

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