DPP v Brown

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne,Ms. Justice Iseult O'Malley
• Judgment Date: 21 December 2018
• Neutral Citation: [2018] IESC 67
• Court: Supreme Court
• Docket Number: [Supreme Court Record No. S:AP:IE:2017:000046],[S.C. No. 46 of 2017]
• Date: 21 December 2018

[2018] IESC 67

THE SUPREME COURT

Dunne J.

O'Malley Iseult J.

McKechnie J.

MacMenamin J.

Dunne J.

O'Malley Iseult J.

Finlay Geoghegan J.

[Supreme Court Record No. S:AP:IE:2017:000046]

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

PROSECUTOR/RESPONDENT

AND

GERARD BROWN

ACCUSED/APPELLANT

Conviction – Assault causing harm – Non-Fatal Offences Against the Person Act 1997 s. 3 – Appellant seeking to appeal against conviction – Whether s. 2 and s. 3 of the Non-Fatal Offences Against the Person Act 1997 are separate or distinct offences

Facts: The appellant, Mr Brown, was tried at Portlaoise Circuit Criminal Court in respect of one count on indictment, namely "that on the 20/05/2014 at Midlands Prison Dublin Road Portlaoise in the County of Laois, in the said District of Portlaoise he did assault one Stephen Cooper causing him harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997". Following a three day trial, Mr Brown was found guilty by unanimous verdict on the 6th November, 2015 of the offence of assault causing harm and was sentenced to three years imprisonment consecutive to his current sentence. The Court of Appeal rejected the appeal against conviction brought by Mr Brown and an application was thereafter made for leave to appeal to the Supreme Court on the basis that the judgment of the Court of Appeal raised a number of issues of general public importance. Leave to appeal was granted to Mr Brown in respect of the following issues: "(1) The interpretation of s. 2 and s. 3 of the Non-Fatal Offences Against the Person Act 1997. (2) Whether the concept of consent as provided for in s. 2(1)(a)(b) of the Non-Fatal Offences Against the Person Act 1997 is removed from s. 3(1) of the same Act. (3) The interpretation and scope of 'assault' as defined in s. 2 of the Non-Offences Against the Person Act 1997. (4) Whether s. 2 and s. 3 of the Non-Fatal Offences Against the Person Act 1997 are separate or distinct offences. (5) To what extent can the courts dictate public policy contrary to the express intentions of the legislature."

Held by the Court that: 1) assault as used in s. 2 and s. 3 of the 1997 Act has the same meaning; 2) the concept of consent provided for in s. 2(1)(a)(b) of the 1997 Act was not removed from s. 3(1) of the Act and ss. 2 and 3 of the Act are separate and distinct offences but insofar as they both use the word "assault", that word has the same meaning in both sections; 3) the question as to whether or not courts can dictate public policy contrary to the express intentions of the legislature did not arise. For those reasons the Court could not agree with the conclusion of the Court of Appeal to the effect that absence of consent is not a necessary ingredient in a s. 3 assault. The Court noted that In this case, the trial judge did not allow the issue of consent to go to the jury; the basis of the ruling may have been erroneous but the nature of the consent in this case was such that it was unlawful and therefore, there was no effectual consent.

The Court held that the conviction could stand and that it would dismiss the appeal. O'Malley Iseult J. and McKechnie J. also handed down judgments.

Appeal dismissed.

JUDGMENT of Ms. Justice Dunne delivered the 21st day of December 2018

Introduction

1 The accused/appellant, Gerard Brown, was tried at Portlaoise Circuit Criminal Court in respect of one count on indictment, namely ‘that on the 20/05/2014 at Midlands Prison Dublin Road Portlaoise in the County of Laois, in the said District of Portlaoise he did assault one Stephen Cooper causing him harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997’. Following a three day trial, Mr. Brown was found guilty by unanimous verdict on the 6th November, 2015 of the offence of assault causing harm and was sentenced to three years imprisonment consecutive to his current sentence.

2 Mr. Cooper (hereinafter referred to as ‘the injured party’), previously a member of An Garda Síochána, gave evidence that he was a prisoner in the Midlands Prison on the 20th May, 2014, having been convicted of offences contrary to s. 15 of the Misuse of Drugs Act, 1977 (as amended), fraud, and perverting the course of justice.

3 The injured party (who was on protection in prison) gave evidence that on the morning of the 20th May, 2014, he was being escorted to the prison gym by a prison officer at approximately 10am. The injured party gave evidence that he was attacked by Mr. Brown on the 20th May, 2014 in the Midlands Prison whereby Mr. Brown struck him two to three times on the top of the head causing him injury.

4 The injured party formally identified the accused from a photograph during the trial process. During cross-examination it was put to the injured party that he asked Mr. Brown to attack him in order to facilitate a transfer to another prison. The injured party expressly denied that he asked Mr. Brown to attack him and denied that he consented to the assault.

5 In his evidence, Mr. Brown accepted that he was a prisoner with a number of previous convictions and that he had hit the injured party on the top of the head with a mug in a sock. He gave evidence that he had a cordial rapport with the injured party and spoke to the injured party regularly through the bars on their respective landings. He gave evidence that the injured party informed him that he was refused a transfer to Shelton Abbey open prison. Mr. Brown gave evidence that he said to the injured party that the only way he was going to get out of Portlaoise Prison place was ‘if there is a serious threat on you, a serious threat on your life or if you are seriously assaulted’.

6 Mr. Brown gave evidence that he spoke to the injured party and alleged that the injured party suggested that he pretend to attack him when he was going to the gym. Mr. Brown gave evidence that the injured party stated ‘Don't hold back’ in terms of the assault and ‘Just make sure there is blood’. In return the injured party stated that he would give Mr. Brown sensitive documentation and information together with €1,000 in cash.

7 At the close of the prosecution case, counsel on behalf of Mr. Brown made an application that the trial judge should allow the defence of consent go to the jury, arguing that insofar as s. 3 of the Non-Fatal Offences Against the Person Act 1997 (the Act of 1997) builds on s. 2 of the said Act, the criteria under s. 2 must be satisfied in order for the crime of ‘assault causing harm’ to be established pursuant to section 3. Counsel for the DPP argued that s. 3 of the Act of 1997 is a standalone offence in which the element of consent was not relevant and that to conclude otherwise would be contrary to public policy. Following the submissions, the learned trial judge refused to allow the defence of consent to go to the jury.

8 The learned trial judge ruled that ss. 2 and 3 of the Act of 1997 are standalone offences. He further ruled that if the definition of assault in s. 2 was to be carried over to s. 3, this would have been clearly provided for in the statute. He further ruled that the injured party could not have consented to the imposition of an injury on him by the applicant on the grounds of public policy and furthermore, that on the grounds of public policy, the courts could not permit the defence of consent to apply as to do so would enforce the purported agreement between Mr. Brown and the injured party. Finally he indicated that he was satisfied that the term ‘assault’ as used in s. 3 of the Act of 1997 derives from the definition which it enjoyed at the time that the Act of 1997 was enacted.

9 Mr. Brown then appealed against his conviction to the Court of Appeal on a number of grounds, namely:

‘(i) The learned trial judge erred and misdirected the jury in law with regard to the interpretation of s. 2 and s. 3 of the Non Fatal Offences against the Persons Act 1997, in particular, the learned trial judge erred in distinguishing “assault' for the purpose of a s. 3 offence from “assault' as defined by s. 2 of the Non Fatal Offences against the Persons Act 1997;

(ii) the learned trial judge erred and misdirected the jury in law by interpreting s. 3 of the Non Fatal Offences against the Persons Act 1997 - so as to remove the concept of consent therefrom, and in so doing, the learned trial judge conducted the trial of the accused other than in due course of law in breach of Art. 38.1 of Bunreacht na hÉireann and in breach of obligations under Art. 6 of the European Convention on Human Rights;

(iii) the learned trial judge erred in law in holding that an agreement or consent to the physical application of force, was vitiated or removed as an element of the offence to be established by the prosecution, for reasons that it was contrary to public policy, for a dishonest purpose, tainted by unlawfulness and incapable of enforcement, whilst expressly acknowledging its applicability or the existence of the defence in other circumstances;

(iv) The learned trial judge erred in law in refusing an application on behalf of the appellant for an accomplice warning to be given to the jury.’

The Court of Appeal rejected the appeal against conviction brought by Mr. Brown and an application was thereafter made for leave to appeal to this Court on the basis that the judgment of the Court of Appeal raised a number of issues of general public importance. Leave to appeal to this Court was granted to Mr. Brown in respect of the following issues:

‘(1) The interpretation of s. 2 and s. 3 of the Non-Fatal Offences Against the Person Act 1997.

(2) Whether the concept of consent as provided for in s. 2(1)(a)(b) of the Non-Fatal Offences Against the Person Act 1997 is removed from s. 3(1) of the same Act.

(3) The interpretation and scope of “assault' as defined in s. 2 of the Non-Offences Against the Person Act 1997.

(4) Whether s. 2...