S. -v- D. P. P. & Ors, [2008] IEHC 427 (2008)

Docket Number:2007 657 P
Party Name:S., D. P. P. & Ors
Judge:Murphy J.

THE HIGH COURT2007 657 PBETWEENZ.S.PLAINTIFFANDTHE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERALDEFENDANTSJudgment of Mr. Justice Roderick Murphy delivered on the 19th day of December, 2008.1. Background to the proceedings The facts which follow are agreed between the parties.The plaintiff has been returned for trial before the Circuit Criminal Court. On 20th August 2004 he was charged with unlawful carnal knowledge of a female under the age of 17 years contrary to s. 2 of the Criminal Law Amendment Act 1935 ("the 1935 Act"), as amended by s. 13 of the Criminal Law Act 1997 ("the 1997 Act").The provision has since been repealed and replaced by the Criminal Law (Sexual Offences) Act 2006, though the plaintiff was charged before its repeal.The complainant was at the time of the alleged offence aged 16 and was an employee of the plaintiff. At all material times during his arrest and questioning the plaintiff maintained that he had not engaged in any sexual contact with her. However, he now seeks to challenge the constitutionality of s. 2(1) of the 1935 Act on the basis that if he did have intercourse with her, he honestly and reasonably believed her to have attained the age of consent. He submits that s. 2(1) precludes him from invoking such a defence at trial.2. PrematurityThe defendants assert that the plaintiff cannot maintain this challenge on the ground that it is premature. Although the plaintiff asserts that he reserves the right to invoke a defence of mistake as to age at trial, this differs widely from an assertion that he will plead that defence. In those circumstances it is impossible to say what form the plaintiff's defence would take at trial, and so for the court to entertain these proceedings would violate the general principle that the court should only pronounce on the constitutionality of a statutory provision where it is necessary to do so.The defendants suggested the proceedings raised questions of statutory interpretation which were properly for the determination of the Circuit Court judge at trial. Reliance was placed on Kennedy v. D.P.P. (Unreported, High Court, 11th January, 2007) where MacMenamin J. refused to consider the constitutionality of s. 4 of the Prevention of Corruption Act 2001 on the ground that the challenge was premature. The section created a presumption unfavourable to persons accused under the Act, but that presumption had not yet been invoked against the applicant and it might not prove necessary to invoke it. The court could not say how the evidence might evolve at trial. The applicant had not engaged with the evidence nor had he identified the nature of his defence or which facts might be in issue. The trial judge had yet to rule on the proper interpretation of key phrases in the section. MacMenamin J. noted (at p. 36):"The applicant assumes (and his case requires one to accept in advance) that the prosecution will establish that both elements identified are in place so as to give rise to the presumption of corruption."The plaintiff relied on Curtis v. Attorney General [1985] I.R. 458. There the plaintiff had been charged with offences under s. 186 of the Customs Consolidation Act 1876, as amended by s. 34 of the Finance Act 1963. The latter provided that, in the event of a dispute as to the value of the goods, the District judge would determine the value. That ruling could not be appealed. The defendant argued the plaintiff lacked the requisite locus standi to maintain the constitutional challenge because he had suffered no prejudice: the District judge might agree with the plaintiff's valuation. In response to this submission, Carroll J. noted (at 462):"I am satisfied that the plaintiff has the necessary interest to bring this suit. While the determination by the District Court…might be in his favour, he is nevertheless in imminent danger of a determination affecting his rights. It is not necessary that a determination adversely affecting rights must first be made before a constitutional challenge can be started. It is sufficient if there is a reasonable apprehension of such determination: see Cahill v. Sutton [1980] I.R. 269, at page 286."Curtis was approved by the Supreme Court in Osmanovic v. D.P.P. [2006] 3 I.R. 504. In that case, like the plaintiff in Curtis, the applicants had been charged with offences contrary to s. 186 of the 1876 Act as amended. They contended that the amendment effected by s. 89(b) of the Finance Act 1997, was unconstitutional by reason of the penalty system it provided for. The applicants in the first case had pleaded not guilty and had been sent forward for trial. In the second case the applicant had appeared in the District Court, but no further step had been taken. The respondents argued both cases were moot in that the applicants had not yet been charged or convicted. Indeed, in the second case they had not even been returned for trial or indicated how they would plead. Accordingly, the constitutionality of the sentencing provisions did not arise.Noting that the High Court had considered both applications somewhat premature, Geoghegan J. (with whose judgment on the issue of locus standi the other members of the Court agreed) took a different view, saying (at para. 19):"I do not accept that locus standi is such a narrow concept or that the views of the trial judge conformed with the principles of this court set out in Cahill v. Sutton [1980] I.R. 269. I appreciate that prematurity and locus standi are not quite the same thing. In each of these three cases, however, I am of the opinion that if the applicants' complaints based on the Constitution could be arguably justified, they are perfectly entitled to air them at this stage. In each case, prosecutions have at least been instituted."He continued (at para. 20):"In expressing the views which I have done, I would prefer to rely on general principle supported by the case which seems to me to be most relevant, that of Curtis v. The Attorney General, a decision of Carroll J. in the High Court. The P.G. v. Ireland and C.C. v. Ireland cases are distinguishable in that there was a very special reason which is set out in the judgments as to why this court was prepared to consider the validity of a proposed defence ahead of a trial."The "special reason" to which Geoghegan J. referred appears from the judgments in C.C. v. Ireland [2006] 4 I.R. 1. In that case the plaintiff instituted judicial review proceedings concerning the proper construction of s. 1(1) of the 1935 Act. The respondents suggested such proceedings were inappropriate because their purpose was to establish the existence in law of a defence to a charge still to be tried and that issue should properly be determined by the trial judge. Geoghegan J. (with whose judgment Hardiman and McCracken JJ. agreed) observed (at para. 95):"I am bound to say that I am in great sympathy with this argument. Having regard, however, to the events which have occurred since leave was granted to institute the judicial review proceedings in each case, I am quite satisfied that it would be unjust and wrong in principle for this court not to make its own decision on the issue and simply to leave the matter for the trial judge. The High Court Judge has decided against each of the applicants on the issue relating to mistake of age. In these circumstances it is virtually inconceivable that the Circuit Court Judge who would be conducting the trial would permit himself or herself to express a different view even if this court were to categorise the views of the High Court Judge as obiter dicta."Fennelly J. (with whose judgment Hardiman and McCracken JJ. also agreed) was of the same view, saying (at para. 132):"By pursuing the route of judicial review, the applicant has sought to have rulings made in advance of his trial as to the interpretation of the applicable statutory provisions. This is not a procedure which the court should approve. The forum for ruling on the law applicable in criminal cases is the court of trial."He continued (at paras. 133-134):"I am compelled, however, to agree that, exceptionally, in view of the course events have taken, this court must consider the correctness of the substantive rulings which have, in fact, been made by the High Court Judge….It is…quite inappropriate and a usurpation of the function of the court of trial for an accused person - or the prosecution, for that matter - to seek advance rulings from the High Court as to how any legal provisions should be interpreted in the course of a pending trial. It happens that the present case concerns a trial pending in the Circuit Criminal Court. Judicial review is not available at all in respect of a trial pending in the Central Criminal Court (the High Court). The proper forum for the determination of legal matters arising in the course of trial is the trial court itself, subject to appeal to the Court of Criminal Appeal. The trial judge has, however, ruled on those matters. He has delivered a considered judgment on the interpretation of the relevant sections. As Geoghegan J. says in his judgment, the Circuit Criminal Court may feel bound by the views of Smyth J. They may also be considered binding, rightly or wrongly, not only in this but in other cases. It may be a long time before this court has an opportunity to consider the substance of the matter. In the ordinary way, decisions of the High Court are open to appeal to this court. In these exceptional circumstances, I am satisfied that the court must entertain the appeal."In my view the same considerations apply in this case. The wording of s. 2(1) of the 1935 Act is the same as that of s. 1(1). Their legislative history is also the same and they are contained within the same Act. In addition, the Supreme Court has indicated, albeit obiter, that s. 2 is also repugnant to the Constitution, both in C.C. and in G.E. v. D.P.P. (Unreported, Supreme Court, 30th October, 2008). In the latter case the applicant...

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