J. Q. -V- Presiding Judge of Dublin Circuit Court & Ors, [2007] IEHC 155 (2007)

Docket Number:2006 615 JR
Party Name:J. Q., Presiding Judge of Dublin Circuit Court & Ors
Judge:O''Neill J.

Neutral Citation Number: [2007] 1EHC 155THE HIGH COURT[2006] No. 615 J.R.BETWEENJ.Q.APPLICANT ANDTHE PRESIDING JUDGE OF THE DUBLIN CIRCUIT CRIMINAL COURT, THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE COMMISSIONER OF AN GARDA SÍOCHÁNARESPONDENTSJUDGMENT of O'Neill J. delivered the 15th day of May, 2007.In these proceedings the applicant seeks by way of judicial review an order of certiorari quashing the order of conviction made by the first named respondent at the Dublin Circuit Criminal Court on 20th July, 2004 whereby the applicant was convicted of the offence of unlawfully and carnally knowing one S.H. on 24th October, 2002 contrary to s. 1(1) of the Criminal Law (Amendment) Act, 1935. In addition the applicant seeks a declaration that the sentence of four years imprisonment imposed upon him on 15th December, 2005 in respect of this offence is null and void; a further declaration that the applicant is not subject to the requirements of Part II of the Sex Offenders Act, 2001, and also an order of mandamus directing the third named respondent to amend the criminal record of the applicant so as to remove from it the aforesaid conviction.The applicant's statement of grounds in respect of which leave to apply for judicial review was granted by Peart J. on 29th May, 2006, set forth two grounds for seeking the aforesaid relief.These two grounds are as follows:-"1. The relief at D(1) - (5) is sought on the ground that:(a) On 23rd May, 2006 in proceedings entitled C.C. v. The Director of Public Prosecutions Ireland and the Attorney General (Record No. 357/04, by order of the Supreme Court, s. 1(1) of the Criminal Law (Amendment) Act, 1935 was declared inconsistent with the provisions of the Constitution of Ireland and accordingly the offence with which the applicant was convicted is unknown to law.2. The relief that D(6) is sought on the ground that:(a) the applicant was imprisoned on remand in the criminal proceedings the subject matter of this application on 29th June, 2005 and was sentenced (without leaving custody) to four years imprisonment on 15th December, 2005 and remains there to date and so was unlawfully detained in breach of his constitutional right to liberty in that he was at times deprived of his liberty solely on foot of criminal proceedings for the sole offence of unlawful carnal knowledge contrary to s. 1(1) of the Criminal Law (Amendment) Act, 1935, the said statutory provision being null and void and of no effect". Also for hearing before me in these proceedings is a notice of motion in which the applicant inter alia seeks an order amending the grounds set out at E in the statement of grounds of the applicant by the addition of the following two grounds at Section E:-"(1) A: The applicant honestly believed, at the time of the sexual intercourse with the injured party, Ms. S.J.H., which intercourse is the subject matter of the within proceedings that the said Ms. H. was 17 years of age.(1) B: The applicant was professionally legally advised on the basis of the law as it then stood prior to his plea of guilty on 20th July, 2004 that there was no defence at law open to him in the criminal proceedings the subject matter of the within judicial review proceedings, as he was admitting intercourse in the conduct of the offence alleged against him. The applicant pleaded guilty as a direct result of the said legal advice". The background to this matter is as follows.On 24th October, 2004 one Ms. H. (hereinafter referred to as the "complainant") was 14 years old and the applicant had sexual intercourse with her. At the time the applicant was 23 years of age. The following day the complainant made a complaint to An Garda Síochána alleging that the applicant had sexual intercourse with her against her will. The applicant was arrested and in the course of interview with members of An Garda Síochána and in a statement, admitted having had sexual intercourse with the complainant but claimed that it was his honest, though admittedly mistaken belief, that the applicant was 17 years of age.In due course the applicant was charged with the offence of unlawful carnal knowledge with the complainant contrary to s. 1(1) of the Criminal Law (Amendment) Act, 1935.At paras. 18, 19 and 20 of an affidavit sworn by the applicant on 23rd November, 2006 for the purposes of grounding the notice of motion for an order giving leave to amend the statement of grounds, the applicant avers as follows:-18. "I say that I had a consultation with my then solicitors, Frank Buttimer and Co. of C. prior to the month of July 2004 in respect of the charge the subject matter of these proceedings. Junior and senior counsel also attended that consultation. It was explained to me by my solicitor in the presence of counsel that admitting intercourse with the alleged injured party, which I did, that there was no defence in law open to me. I was advised that my honest belief as to her age was of no legal relevance to the question of pleading guilty or not guilty. As a result, my honest belief as to her age, was not really discussed as it was not considered relevant. 19. I pleaded guilty as a result of that legal advice which I received, which was, there was no defence open to me.20. Even in mitigation in sentence my honest belief was not considered highly relevant given that I had also admitted that I thought the injured party looked 14 or 15 years of age." The applicant was to be tried on one count namely that of unlawful carnal knowledge as aforesaid on 20th July, 2004. On that occasion the applicant pleaded guilty to that one count in the indictment. The applicant gave no intimation in advance of his trial of an intention to plead guilty.The applicant's case was then adjourned to the 20th January, 2005 for sentence. The applicant failed to attend court on this adjourned date and a bench warrant was issued for his arrest. The applicant was arrested near his home in C. on 29th June, 2005 on foot of this bench warrant and was lodged in custody, without bail, until 15th December, 2005 when the adjourned sentencing hearing took place. On this occasion the applicant was sentenced to four years imprisonment to date from 29th June, 2005, the date of his arrest as aforesaid. Leave to appeal that sentence was refused.No application for leave to appeal within the time prescribed was made to the Court of Criminal Appeal.On 23rd May, 2006 the Supreme Court in its judgments delivered that day in the case of C.C. v. The Director of Public Prosecutions Ireland and the Attorney General (Record No. 357/04), declared s. 1(1) of the Criminal Law (Amendment), Act 1935 to be inconsistent with the Constitution of Ireland. On 29th May, 2006 (six days later) the applicant made to this court (Peart J.) the ex parte application for leave to apply for judicial review which was granted by order of this court (Peart J.) on that date. On foot of leave granted the applicant issued his notice of motion seeking the aforesaid relief and this notice of motion was returned to this court on 21st June, 2006.In the meantime on 2nd June, 2006 the Supreme Court gave its decision in the case of A. v. The Governor of Arbour Hill Prison (Record No. 2006 No. 694 SS) but reserved reasons for its judgment to a later date. The decision of the Supreme Court in the A. case was to hold that the detention of A. pursuant to a conviction under s. 1(1) of the Criminal Law (Amendment) Act, 1935 was not unlawful. In due course on 10th July, 2006 the Supreme Court delivered its reasoned judgments in this case.These judicial review proceedings had been adjourned from 21st June, 2006 to 19th July, 2006 to await the judgments in the A. case. On 19th July, 2006 these...

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