Grealis & Corbett v DPP

• Jurisdiction: Ireland
• Judge: Keane C.J.,Mrs. Justice Denham,Hardiman J.
• Judgment Date: 31 May 2001
• Neutral Citation: [2001] IESC 50
• Court: Supreme Court
• Docket Number: [S.C. No. 262 of 1999]
• Date: 31 May 2001

GREALIS v. DPP; CORBETT v. DPP

Between:

Padraic Grealis

Applicant

and

The Director of Public Prosecutions, Ireland and AttorneyGeneral

Between:

Emmett Corbett

Applicant

and

The Directior of Public Prosecutions

Respondent

and

The Attorney General

Notice Party

[2001] IESC 50

Keane C.J.

Denham J.

Murray J.

Murray J.

Hardiman J.

257 & 262/99

THE SUPREME COURT

Synopsis

CONSTITUTIONAL LAW

Statutory interpretation

Prohibition - Retrospective legislation - Construction of penal statutes - Offence of assault - Separation of powers - Applicant charged with assault contrary to common law and section 47 of the Offences Against the Person Act, 1861 - Common law offence of assault and assault contrary to section 47 of 1861 Act subsequently abolished by Non-Fatal Offences Against the Person Act, 1997 - Whether 1997 Act contained saving provisions for abolished offences - Whether saving provisions of Interpretation Act, 1937 and Interpretation (Amendment) Act, 1997 applied to abolished offences - Whether prosecutions for offences could continue - Whether courts being asked to perform legislative function - Offences Against the Person Act, 1861 section 47 - Interpretation Act, 1937 section 21 - Non-Fatal Offences Against the Person Act, 1997 section 28 - Interpretation (Amendment) Act, 1997 - Bunreacht na hÉireann, 1937 articles 15, 34 and 40 (257 & 262/1999 - Supreme Court - 31/5/01) - [2001] 3 IR 144 - [2002] 1 ILRM 241

Grealis v DPP

CRIMINAL LAW

Statutory interpretation

Retrospective legislation - Judicial review - Prohibition -Construction of penal statutes - Offence of assault - Separation of powers - Applicant charged with assault contrary to common law and s.47 of the Offences Against the Person Act, 1861 - Common law offence of assault and assault contrary to s.47 of 1861 Act subsequently abolished by Non-Fatal Offences Against the Person Act, 1997 - Whether 1997 Act contained saving provisions for abolished offences - Whether saving provisions of Interpretation Act 1937 and Interpretation (Amendment) Act 1997 applied to abolished offences - Whether prosecutions for offences could continue - Whether courts being asked to perform legislative function - Offences Against the Person Act, 1861 section 47 - Interpretation Act, 1937 section 21 - Non-Fatal Offences Against the Person Act, 1997 section 28 - Interpretation (Amendment) Act, 1997 - Bunreacht na hÉireann 1937, articles 15, 34 and 40 (257 & 262/1999 - Supreme Court - 31/5/01) - [2001] 3 IR 144 - [2002] 1 ILRM 241

Grealis v DPP

The proceedings involved two cases where prosecutions had been brought in respect of offences which had subsequently been abolished. The offences in question were those assault contrary to the common law and assault contrary to the Offences Against The Person Act, 1861. Orders of prohibition had been sought to prevent the prosecutions from proceeding. In Grealis O'Donovan J in the High Court had held that the prosecution for assault contrary to common law could not be proceeded with, but the prosecution for assault contrary to s.47 of the Offences Against the Person Act, 1861 was saved by the provisions of the Interpretation Act 1937. In Corbett Mrs. Justice McGuinness refused the order of prohibition sought holding that the prosecution of the offence alleged against the applicant was governed by the Interpretation (Amendment) Act, 1997 and that the provisions of that Act did not offend against the Constitution. In the Supreme Court the Chief Justice, Mr Justice Keane, held that common sense dictated that where a common law offence was repealed by statute, in the absence of any saving provision, it ceased to exist for all purposes and no prosecution could take place after the repealing statute had taken effect. The appeal of the DPP in Grealis in relation to the common law offence should be dismissed. However the cross appeal by the applicant against the finding that the prosecution in respect of the statutory offence could proceed should be dismissed. In Corbett the appeal of the applicant should be allowed. Mrs. Justice Denham (with Murray J agreeing) was satisfied that an offence of assault contrary to section 47 of the Offences Against the Person Act, 1861 was a common law offence and thus a prosecution in respect of either offence could not be brought. In Grealis the appeal of the DPP regarding the order of prohibition would be dismissed and the cross-appeal of the applicant would be allowed and an order prohibiting the prosecution of the offence of assault contrary to section 47 would be issued. In Corbett the appeal of the applicant should be allowed. Mr. Justice Hardiman (with Murphy J agreeing) agreed with the judgment of the Chief Justice in all respects save that he would allow the cross-appeal of the applicant in Grealis in respect of the prosecution of the statutory offence.

Citations:

OFFENCES AGAINST THE PERSON ACT 1861 S47

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S10

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S28(1)

GREALIS V CORBETT UNREP SUPREME 31.5.2001

DPP V KAVANAGH UNREP BARR 26.10.1997 1998/15/5591

INTERPRETATION (AMDT) ACT 1997 S1

INTERPRETATION ACT 1937 S21

QUINLIVAN V GOVENOR OF PORTLAOISE PRISON 1998 2 IR 113

MULLINS V HARNETT 1998 2 ILRM 304

O, STATE V O'BRIEN 1971 IR 42

CONSTITUTION ART 34.3.2

CONSTITUTION ART 40.1

MILLERS CASE 1764 1 WIPL 450

R V MACKENZIE 1820 RUSS & RY 429

KAY V GOODWIN 1830 6 BING 576

R V SWANN 1849 4 COX CC 108

THE GENERAL PICKNEY (YEATON V USA) 1809 9 US 281

COMMONWEALTH V COOLEY 1830 HF & H 36

UNITED STATES V TYNEN 11 WALL 88

MASSEY V UNITED STATES 291 US 608

INTERPRETATION (AMDT) ACT 1997 S1(4)

BUCKLEY V AG 1950 IR 67

EAST DONEGAL CO-OPERATIVE LIVESTOCK MARTS LTD V AG 1970 IR 317

DPP V EF UNREP SUPREME 24.2.1994 1997/2/557

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S31

INTERPRETATION ACT 1937 S21(1)

INTERPRETATION ACT 1889 S38(1)

UNITED STATES V CHAMBERS 291 US 217

BENNION ON STATUTORY INTERPRETATION 3RD ED 233

CONSTITUTION ART 40

HAMILTON V HAMILTON 1982 IR 466

ATHLUMNEY, RE 1898 2 QB 547

SINN FEIN FUNDS CASE 1950 IR 67

MAHER V AG 1973 IR 140

COSTELLO V DPP 1984 IR 436

INTERPRETATION (AMDT) ACT 1997 S1(1)(c)

INTERPRETATION (AMDT) ACT 1997 S1(2)

INTERPRETATION (AMDT) ACT 1997 S1(3)

COURTS (NO 2) ACT 1988

SHELLY V MAHON 1990 1 IR 36

PINE VALLEY DEVELOPMENTS V MIN FOR THE ENVIRONMENT 1987 IR 23

PINE VALLEY DEVELOPMENTS LTD, STATE V DUBLIN CO COUNCIL 1984 IR 407

CRIMINAL JUSTICE ACT 1951

PEOPLE V MURRAY 1977 IR 416

DPP V MCBRIDE 1996 1 IR 426

R V SAVAGE; R V PARMENTER 1991 4 AER 698

INLAND REVENUE COMMISSIONERS V O'MAHONY 1952 AC 401

CRIMINAL JUSTICE ACT 1951 S11(2)

CRIMINAL JUSTICE ACT 1994 S10(2)

INTERPRETATION (AMDT) ACT 1997

CRIMINAL JUSTICE ACT 1951 S11

GREALIS V DPP & AG 2000 1 ILRM 358

OFFENCES AGAINST THE PERSON ACT 1861 S36

OFFENCES AGAINST THE PERSON ACT 1861 S37

OFFENCES AGAINST THE PERSON ACT 1861 S38

OFFENCES AGAINST THE PERSON ACT 1861 S39

OFFENCES AGAINST THE PERSON ACT 1861 S40

OFFENCES AGAINST THE PERSON ACT 1861 S41

OFFENCES AGAINST THE PERSON ACT 1861 S42

OFFENCES AGAINST THE PERSON ACT 1861 S43

OFFENCES AGAINST THE PERSON ACT 1861 S44

OFFENCES AGAINST THE PERSON ACT 1861 S45

OFFENCES AGAINST THE PERSON ACT 1861 S46

GRIEW COMMON ASSAULT AND THE STATUTE BOOK 1983 CLR 710

REPORT ON NON-FATAL OFFENCES AGAINST THE PERSON 1994 LRC 45

HOWARD V COMMISSIONERS OF PUBLIC WORKS (CPW) 1994 IR 101

DIRECT UNITED STATES CABLE CO V ANGLO AMERICAN TELEGRAPH CO 1877 2 AC 394

CRAIES ON STATUTE LAW 7TH ED (1971) 65

DOOLAN V DPP 1992 2 IR 399

INTERPRETATION (AMDT) ACT 1997 S2

COUGHLAN V PATWELL 1993 1 IR 31 1992 ILRM 808

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S32

BLACKSTONES COMMENTARIES ON THE LAW OF ENGLAND 6TH ED (1775) BOOK III 120

OFFENCES AGAINST THE PERSON ACT 1861 S47

CHARLTON OFFENCES AGAINST THE PERSON 1992 196

ROAD TRAFFIC ACT 1961 S53

WARD, AG V THORNTON 1964 IR 458

AG V WALL UNREP BUTLER 9.6.69

DPP V MURRAY 1977 IR 360

CRIMINAL JUSTICE ACT 1964 S3(1)

CRIMINAL JUSTICE ACT 1964 S3(2)

CRIMINAL JUSTICE ACT 1964 S3(3)

CRIMINAL JUSTICE ACT 1964 S3(5)

CONSTITUTION ART 15.5

1 31st day of May 2001byKeane C.J.

Keane C.J.

Introduction

2 The factual background to these two cases is as follows. In the first (hereafter "Grealis"), three summonses were issued by the District Court against the applicant, the first two dated the 11th September 1997 and the third dated the 12th September 1997. The first recited a complaint that the applicant did

"assault one Margaret Sweeney contrary to commonlaw"

3 on the 4th May 1997 at Hotel Westport, Westport, Co. Mayo. The second was in identical terms, the names of the person allegedly assaulted in that instance being Francis Sweeney. In the third, the complaint recited was that the applicant

"on the 11th May 1997 at Mulranny, Co. Mayo in the (district court area of Newport) did unlawfully assault one Christopher McGinty, of Dooriel, Ballycroy, Westport, Co. Mayo thereby occasioning him actual bodily harm ... contrary to s. 47 Offences Against the Person Act,1861."

4 In the second case (hereafter "Corbett"), a summons was issued on the 6th August 1997 alleging that the applicant on the 3rd February 1997 at William Street, Cork

"did assault one Brian Cashman, contrary to common lawand"

5 s. 47 of the Offences Against the Person Act, 1861 as amendedby

6 s. 10 Criminal Justice ( Public Order) Act, 1994."

7 On the 19th May 1997 the Non-Fatal Offences against the Person Act 1997(hereafter "the 1997 Act") was enacted by the Oireachtas. Section 28(1) provided that:

"The following common law offences are herebyabolished-"

(a) assault and battery,

(b) assault occasioning actual bodily harm,

(c) kidnapping,

(d) false imprisonment."

8 This provision came into force on the 19th August 1997. In both Grealis and Corbett, accordingly, it was not in force on the dates on which the alleged offences were...