Grealis -v- D.P.P. & ors & Corbett -v- D.P.P. & ors, [2001] IESC 50 (2001)

Docket Number:257 & 262/99 & 16/00
Party Name:Grealis, D.P.P. & ors & Corbett -v- D.P.P. & ors
Judge:Keane C.J. / Denham J. / Hardiman J.
 
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THE SUPREME COURTKeane C.J. 257 & 262/99

Denham J.

Murphy J.

Murray J.

Hardiman J.

Between;PADRAIC GREALIS Applicantand

THE DIRECTOR OF PUBLIC PROSECUTIONS IRELAND

and THE ATTORNEY GENERAL Respondents

Between:EMETT CORBETT Applicantand

THE DIRECTOR OF PUBLIC PROSECUTIONS Respondentand

THE ATTORNEY GENERAL Notice Party

JUDGMENT delivered the 31st day of May, 2001 by Hardiman J.

I agree with the judgment of the learned Chief Justice in these cases save in one respect. I have the misfortune to differ on the issue of whether assault occasioning actual bodily harm, as it existed prior to coming into effect of Sections 28 or 32 of the Non-Fatal Offences against the Person Act, 1997 was a statutory or a common law offence. This is the issue raised in Mr. Grealis's cross appeal. The resolution of this issue will decide whether or not he can be further prosecuted on the charge contained in the Summons issued against him on the 12th September, 1997.

Sections 28 and 31 of the Non-Fatal Offences against the Person Act, 1997.

Section 28 provides as follows:

"The following common law offences are hereby abolished -

(a) Assault and battery,

(b) Assault occasioning actual bodily harm,

(c) Kidnapping,

(d) False imprisonment.

It is clear from this that the draftsman of the Act and, one must presume, the Oireachtas, regarded the offence of assault occasioning actual bodily harm as a common law offence. This was so despite high judicial support, albeit obiter, for the contrary view in a case which is discussed below. However, the point is of limited significance since the statutory description of the offence would hardly bind the Court if it were clearly to be established to be wrong in law. It is of no significance outside the immediate context of this case because if the offence is indeed a statutory one it can only be so by virtue of Section 47 of the Offences against the person Act, 1861. That provision is in any event repealed by Section 31 of the 1997 Act.

Assault and battery at common law.

The wrongs known as assault and battery have been recognised at common law from a very remote time and both civil and criminal remedies have been provided for them. In Sir William Blackstone's Commentaries on the Law of England 6th Edition Dublin 1775 each is described separately, both as a crime and as a tort. By 1861, and probably much earlier in most usages, they had become largely assimilated under the name assault: see for example Section 47 of the 1861 Act, discussed below. However, somewhat confusingly, they also preserved a separate existence which is testified to in a small number of cases.

Blackstone Book III page 120 defined assault as "...... an attempt or offer to beat another without touching him". As to battery he said that it is:-

"...... the unlawful beating of another. The least touching of another's person, wilfully, or in anger, is a battery; for the law cannot the draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner."

From the same source it appears that aggravated forms of assault were not recognised at common law unless they reached the degree of wounding "which consists in giving another some dangerous hurt and is only an aggravated species of battery", or mayhem "which is an injury still more atrocious, and consists in violently depriving another of the use of a member proper for his defence in fight. This is a battery, attended with this aggravating circumstance, that thereby the party injured is for ever disabled from making so good a defence against future external injuries as he otherwise might have done".

It appears, therefore, that at common law any unlawful touching with consequences less serious than would amount to wounding or mayhem was described as battery. That term became assimilated over time, for most purposes, into the term "assault", certainly by the middle of the 19th century. This assimilation is manifest even in statutory provisions, as appears below.

The 1861 Act.

It is important to consider Section 47 of the Offence against the Person Act, 1861 in its statutory context. Sections 36 - 47 are all under the general heading "Assaults". Sections 36 - 41 provide penalties for assaults on specific persons or in specific circumstances or both. For example, assault on a Magistrate while he is preserving a wreck, or on a clergyman while he is going to or returning from the performance of his functions. They also provide in places for specific intents or a specific state of knowledge required for the offence to come within the Section.

Sections 43 - 46 relate to the exercise of summary jurisdiction. Thus, by Section 42, a summary jurisdiction is conferred on two justice of the peace to try a charge of assault or battery and a maximum sentence of two months is provided. Section 43 provides that two justices may inflict a penalty of up to six months imprisonment if the assault is on a woman or a boy under the age of 14. Section 44 provides that Magistrates who dismissed a charge in the exercise of this summary jurisdiction should issue a Certificate of Dismissal and the next section provides that such certificate is a bar to other proceedings arising out of the same incident. Section 46...

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