S O'C v Governor of Curragh Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 13 July 2001
• Neutral Citation: [2001] IESC 68
• Date: 13 July 2001
• Court: Supreme Court
• Docket Number: [S.C.

O'C (S) v. GOVERNOR OF CURRAGH PRISON

IN THE MATTER OF AN INQUIRY UNDER ARTICLE 40.4(ii) OF THE CONSTITUTION

Between:

S.O.C

Applicant

and

THE GOVERNOR OF CURRAGH PRISON

Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS and HIS HONOUR JUDGE HAUGH

Notice Parties

[2001] IESC 68

Keane C.J.

Denham J.

Murphy J.

Murray J.

Hardiman J.

72/00

THE SUPREME COURT

Synopsis

Criminal Law

Criminal; indecent assault; appellant had been convicted of indecent assault; whether the offence of indecent assault had been misdescribed either in the summons or in the form of conviction of appellant in light of statutory provision changing name of offence from "indecent" to "sexual" assault; whether such offence had been abolished by statutory provision abolishing offence of "assault"; s. 2, Criminal Law (Rape) (Amendment) Act, 1990; s. 28, Non-Fatal Offences against the Person Act, 1997.

Held: Appeal dismissed.

O'C v. DPP - Supreme Court: Hardiman [nem diss] Keane Denham Murphy Murray - 13/07/2001 - [2002] 1 IR 66

The applicant was serving a sentence having pleaded guilty to an offence of indecent assault. Section 28 of the Non-Fatal Offences Against the Person Act, 1997 abolished the common law offence of assault and battery. Counsel for the applicant claimed that indecent or sexual assault was not an offence in its own right but was an instance of common law assault. It was argued that there was no saving provision in the legislation which preserved prosecutions in respect of indecent or sexual assault and that the continued imprisonment of the accused was unlawful. Geoghegan J held that the Non-Fatal Offences Against the Person Act, 1997 only dealt with non-fatal offences and did not deal with sexual offences. The offence of indecent or sexual assault had not been abolished by the Non-Fatal Offences Against the Person Act, 1997 and consequently the applicant was lawfully detained. On appeal Mr. Justice Hardiman held that there was nothing to suggest the offence of indecent assault had been abolished by section 28 of the Non-Fatal Offences Against the Person Act, 1997. The appeal would be dismissed.

Citations:

CRIMINAL LAW (RAPE) ACT 1981 S10

CONSTITUTION ART 40.4(ii)

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S22(1)(a)

INTERPRETATION (AMDT) ACT 1997

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2(1)

DPP V F (E) UNREP SUPREME 24.2.1994 1994/2/557

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S28

OFFENCES AGAINST THE PERSON ACT 1861 S52

CRIMINAL LAW (RAPE) ACT 1981 S10

DPP V MCDONAGH 1996 2 ILRM 469

1 Mr. Justice Hardiman delivered the 13th day of July, 2001. [nem diss]

2 The Applicant was convicted of indecent assault, after a two day trial, on the 1st April, 1998. The precise form of the charge against him was as follows:-

"That you did on a date unknown in the year 1989 indecently assault one L.M., a female child under the age of fifteen years contrary to common law as provided for in Section 10 Criminal Law (Rape) Act, 1981."

3 The Applicant was sentenced to 3½ years in prison.

4 In November 1998 the Applicant challenged his detention pursuant to Article 40.4(ii). He was unsuccessful in these proceedings and appealed. In the course of this appeal he raised for the first time the point at the centre of the present proceedings. The Supreme Court, however, took the view that it could not consider this point because it had not been raised in the High Court. Accordingly, it dismissed the appeal but observed that "It is, of course, still open to him (to raise the relevant point) by way of appropriate proceedings to be commenced in the High Court". The Applicant did so shortly afterwards.

The issue.

5 The Applicant says that the proceedings commenced against him by Summons, and his subsequent conviction in those proceedings, are invalid for the following reasons:-

6 (a) The proper description of the offence wherewith he was charged had, long before the date of conviction, been altered to "sexual assault" by the Criminal Law (Rape) (Amendment) Act, 1990, Section 2.

7 (b) The offence of assault and therefore, of necessity, of indecent and/or sexual assault, was abolished by the Non-Fatal Offences against the Person Act, 1997, Section 22(1)(a).

8 (c) The Interpretation (Amendment) Act, 1997was enacted on the 4th November, 1997 in an attempt to remedy the failure of the repealing statute to make any transitional provisions. The Applicant contends that it does not in fact have that effect and that if does it is repugnant to the Constitution and invalid because it purports retroactively to impose criminal penalties.

9 Clearly, the third point will only arise if the second is resolved in favour of the Applicant.

Was the offence misdescribed?

10 Section 2 of the Criminal Law (Rape) (Amendment) Act, 1990came into force on the 21st January, 1991. It provides as follows:-

11 (1) "The offence of indecent assault upon any male person and the offence of indecent assault upon any female person shall be known as sexual assault".

12 In DPP v. EF (Supreme Court unreported 24th February, 1994) Egan J., giving the judgment of the Court, referred to Section 2 of the 1990 Act and said:-

"It is clear from the foregoing that the offence of indecent assault remains but as and from the 21st January, 1991 it became known as sexual assault. It still remains a common law offence for which punishment is provided by statute. In regard to indecent...