Z.S. v DPP, [2011] IESC 49 (2011)

Docket Number:70/09
Judge:Fennelly J.

THE SUPREME COURTAppeal No 70/2009Denham C.J.Murray J.Hardiman J.Fennelly J.Macken J.Between:Z. S.Plaintiff/Appellant-and-THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERALDefendants/RespondentsJUDGMENT delivered by Mr. Justice Fennelly on the 21st day of December 2011.1. The Criminal law (Amendment) Act, 1935 created the offences of what was then called unlawful carnal knowledge of girls below the age of 15 (section 1) and between the ages of 15 and 17 (section 2). The Criminal Law Act, 1997 provided that section 2 was to apply to cases of carnal knowledge of all girls under the age of 17. Section 1 of the Act of 1935 prescribed a maximum penalty of penal servitude for life; under section 2 the maximum penalty was five years for a first offence and ten years for a second or subsequent offence.2. In C.C. v Ireland and others [2006] 4 I.R. 1, the constitutionality of section 1 was challenged by reason of the absence of any provision permitting a defence on the ground that the accused reasonably or honestly mistook the age of the complainant. For ease of reference, this will be described as the “mistake defence.” This Court decided the issue in two stages. Firstly, the Court decided by a majority that section 1 of the Act of 1935 by necessary implication excluded any defence based on bona fide or reasonable mistake as to the age of the girl. In a second judgment delivered by Hardiman J, speaking for a unanimous Court, it was decided that the section was, consequently, inconsistent with the Constitution.3. The proceedings which have led to this appeal constitute the counterpart of C.C., so far as section 2 is concerned. The appellant has instituted an action by plenary summons in which he alleges that section 2 is invalid, having regard to a number of provisions of the Constitution, essentially for the same reason as persuaded the Court to strike down section 1. The appellant pleads that section 2 created “an absolute offence with no provision for the defence of reasonable mistake as to the age of the complainant.”4. There is, however, a difference which has to be considered by the Court. Section 2, unlike section 1, was the subject of amendment in 1997 in a way which would have the effect of extending its scope to offences involving all girls under the age of 17, not merely those aged between 15 and 17.5. Section 2(1) of the Act of 1935 provided as follows“Any person who unlawfully and carnally knows any girl who is of or over the age of fifteen years and under the age of seventeen years shall be guilty of a misdemeanour and shall be liable, in the case of a first conviction of such misdemeanour, to penal servitude for any term not exceeding five years nor less than three years or to imprisonment for any term not exceeding two years or, in the case of a second or any subsequent conviction of such misdemeanour, to any term of penal servitude not exceeding ten years nor less than three years or to imprisonment for any term not exceeding two years.”6. Section 13 combined with item number 7 of the First Schedule of the Criminal Law Act, 1997 amended that provision by deletion of the underlined words, “of or over the age of fifteen years and.” Thenceforth, the section purported to apply to cases of carnal knowledge of all girls under the age of 17.7. The implications of this amendment are central to the argument on the present appeal. Without that amendment, section 2 would share with section 1 the feature that a defence of honest mistake as to age is not allowed and, as was conceded on behalf of the State, it would suffer the same fate as section 1. If, on the other hand, the post-1937 amendment has the effect of conferring the presumption of constitutionality on section 2, a different result might be achieved. Thus, by application of the double-construction rule and, by implication of a requirement of mens rea, the prosecution would have to prove that the accused did not have an honest belief that the girl was over 17. The section could, if that argument were to be accepted, be rendered compatible with the Constitution.The facts8. The essential facts relating to the appellant are agreed. On 20th August 2004, the appellant was charged with the unlawful carnal knowledge of a female under the age of seventeen years of age contrary to the provisions of section 2 of the Act of 1935. The act with which he is charged is alleged to have occurred on 23rd October 2003. The complainant was born on 9th January 1987; thus, she was sixteen years of age at the date of the alleged offence.9. The appellant was returned for trial at Dublin Circuit Criminal Court on 10th February 2006.10. While the complainant alleges that the appellant had sexual intercourse with her, he denies this. Nonetheless, he has indicated his wish to be able to assert a defence to the effect that any sexual intercourse which took place occurred at a time when he had an honest and reasonable belief that the complainant was over the age of 17 years.11. By the date of hearing of the appeal, the appellant had been tried in the Circuit Criminal Court. The jury was unable to reach a verdict and the retrial of the appellant is pending.The proceedings12. The plenary summons in the present case was issued on 30th January 2007. The judgment of this Court in C.C. v Ireland declaring section 1 of the Act of 1935 to be inconsistent with the Constitution had been delivered on 23rd May 2006. Pleadings in the present action were closed in December 2007. The High Court (Murphy J) delivered judgment on 19th December 2008.13. Murphy J held, firstly, that the claim of the appellant was not premature: he rejected an argument advanced on the part of the defendants that the...

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