Grealis v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Diarmuid B. O'Donovan
• Judgment Date: 18 October 1999
• Neutral Citation: [1999] IEHC 35
• Court: High Court
• Docket Number: No. 228 1998
• Date: 18 October 1999

[1999] IEHC 35

THE HIGH COURT

No. 228 1998

GREALIS v. DPP & ORS

JUDICIAL REVIEW

BETWEEN

PADRAIG GREALIS

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGEMENT of

Mr. Justice Diarmuid B. O'Donovan

delivered on the 18th, day of October 1999

1 This case comes before the Court on foot of an Order of the High Court dated the 15th day of June 1998 granting the Applicant leave to apply for Judicial Review by way of prohibition for an Order prohibiting the Respondents from taking any further steps in the bringing of a prosecution against the Applicant on foot of three summonses, namely;

2 (a) A summons dated the 11th of September 1997 returnable on the 3rd day of October 1997 to the sittings of the District Court, District No 3, the District Court area of Westport at Westport in the County of Mayo, alleging that the Applicant assaulted Margaret Sweeney contrary to common law subject to Section 11 (2) of the Criminal Justice Act1951, as amended by Section 10(2) of the Criminal Justice Act1994,

3 (b) A summons dated the 11th of September 1997 returnable on the 3rd day of October 1997 to the sittings of the District Court, District No 3, the District Court area of Westport at Westport in the County of Mayo, alleging that the Applicant assaulted Francis Sweeney contrary to common law subject to Section 11 (2) of the Criminal Justice Act1951, as amended by Section 10(2) of the Criminal Justice Act1994, and

4 (c) A summons dated the 12th day of September 1997, returnable on the 17th day of October 1997 to the sittings of the District Court, District No 3, the District Court area of Newport at Newport in the County of Mayo, alleging that the Applicant unlawfully assaulted Christopher McGinty contrary to Section 47 of the Offences Against the Person Act 1861.

5 By virtue of Section 28(1) of the Non-Fatal Offences Against the Person Act1997, which came into effect on the 19th day of August 1997, the Common Law Offences of Assault and Assault occasioning Actual Bodily Harm were abolished. The dates of the alleged commission of the offences, the subject matter of these proceedings, were respectively the 4th day of May 1997, the 4th day of May 1997 and the 11th day of May 1997 and the dates for the hearing of the said summonses were respectively the 3rd day of October 1997, the 3rd day of October 1997 and the 17th day of October 1997.

6 Counsel on behalf of the Applicant submitted that, in the circumstance that (a) the crimes of Assault and Assault occasioning Actual Bodily Harm contrary to Common Law were abolished on the 19th day of August 1997, (b) the crime of Assault occasioning Actual Bodily Harm, although alleged in the said summons dated the 12th day of September 1997 to be a statutory offence, is, in fact, a Common Law Offence and (c) there is no saving for offences charged after the 19th day of August 1997 (either in the provisions of the Non-Fatal Offences Against the Person Act1997, or by virtue of the Interpretation Act1937), no such offences could be prosecuted. In this regard, it was conceded on behalf of the Applicant that the point at issue in these proceedings appears to have been considered in detail by the Honourable Mrs. Justice McGuinness in the case of Quinlivan -v- The Governor of Portlaoise Prison, The Director of Public Prosecutions, Ireland and the Attorney General (1998 2 I.R. A-P 113) and by the Honourable Mr. Justice O'Higgins in the case of Michael Mullins -v- District Judge William Harnett, The Director of Public Prosecutions and the Attorney General (judgment delivered on the 1st day of April 1998) and that the decisions laid down in those two cases are persuasive authority, which I accept to be so. However, it was argued on behalf of the Applicant that the decisions in those two cases were incorrect. In this regard, a significant distinguishing feature between the circumstances of this case and those which obtained with regard to the cases of Quinlivan and Mullins is that, whereas the prosecutions against Messrs. Quinlivan and Mullins commenced prior to the 19th day of August 1997 (the date upon which the Non-Fatal Offences Against the Person Act1997came into effect) the prosecutions against this Applicant did not commence until after that date. Accordingly, as it appears to me that the decisions of the learned McGuinness J. and the learned O'Higgins J. in those two cases were based on the fact that the prosecutions against Messrs. Quinlivan and Mullins were in being at the time that the Interpretation (Amendment) Act1997came into effect, different considerations apply in this case and it is not, therefore, necessary for me to consider the propriety of those decisions.

7 At the outset, it seems to me that the first issue which I must determine is whether or not the offence of assault contrary to Section 47 of the Offences Against the Person Act 1861 alleged against the Applicant in the said summons dated the 12th of September 1997 is, as submitted on behalf of the Applicant, a common law offence and, thereby, included among the provisions of Section 28(1) of the Non-Fatal Offences Against the Person Act1997or whether, as submitted on behalf of the Respondents, it is a statutory offence and, therefore, excluded from those provisions. In this connection, I think that I need look no further than to the judgment of the Supreme Court delivered in the case of the State (at the prosecution of O) -v- Eveleen O'Brien ( 1971 I.R. at page42) which is a binding authority and in which it was held that the offence of Assault occassioning Actual Bodily Harm is a statutory offence. Accordingly, I must conclude that the offence of assault contrary to Section 47 of the Offences Against the Person Act 1861 alleged against the Applicant in the said summons dated the 12th of September 1997 does not come within the provisions of Section 28(1) of the Non-Fatal Offences Against the Person Act1997. That as it may be, however, is equally clear, by virtue of the provisions of Section 31 of the said Act of 1997 and the schedule thereto, that the offence of assault occasioning Actual Bodily Harm contrary to the provisions Section 47 of the Offences Against the Person Act 1861 was abolished with effect from the 19th of August 1997.

8 Arising from the foregoing, Counsel for the Applicant submitted that, since the Non-Fatal Offences Against the Person Act1997contains no saving provisions in respect of offences abolished by that Act which are charged after the Act came into effect on the 19th of August 1997, the offences alleged against the Applicant in the said summonses respectively dated the 11th day of September 1997, the 11th day of September 1997 and the 12th day of September 1997 can no longer be prosecuted. In this connection, it is a fact that the said Act of 1997 contains no such saving provisions; a fact which the Special Criminal Court in a judgment delivered on the 29th day of October 1997 in a case of the People -v- Kavanaghdescribed as "surprising and most unfortunate"; a view with which I concur. However, Counsel for the Respondents has submitted that, in that connection, regard must be had for the provisions of the Interpretation Act1937and, in particular, Section 21 thereof which provides (inter alia) as follows:-

9 2 "21(1) where an act of the Oireachtas repeals the whole or a portion of a previous statute, then, unless the contrary intention appears, such repeal shall not;

10 (a) revive anything not in force or not existing immediately before such repeal takes effect, or

11 (b) effect the previous operation of a statute or portion of a statute so repealed or anything duly done or suffered thereunder, or

12 (c) effect any right, privilege, obligation or liability acquired, accrued or incurred under the statute or portion of a statute so repealed or

13 (d) effect any penalty, forfeiture or punishment incurred in respect of any offence against or contravention of the statute or portion of a statute so repealed which was committed before such repeal, or

14 (e) prejudice or effect any legal proceedings, civil or criminal, pending at the time of such repeal in respect of any such rights, privilege, obligation, liability, offence or contravention as aforesaid.

15 (2) Where an act of the Oireachtas...