S (Z) v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly,Denham C.J.
• Judgment Date: 21 December 2011
• Neutral Citation: [2011] IESC 49
• Docket Number: [S.C. No. 70 of 2009]
• Court: Supreme Court
• Date: 21 December 2011

[2011] IESC 49

THE SUPREME COURT

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

Macken J.

[Appeal No: 70/09

[Appeal No: 70/2009]

S (Z) v DPP

Between/

Z.S.

Plaintiff/Appellant

and

The Director of Public Prosecutions, Ireland, and the Attorney General

Defendants/Respondents

CRIMINAL LAW AMDT ACT 1935 S2(1)

CRIMINAL LAW ACT 1997 S13

C (C) v IRELAND & ORS 2006 4 IR 1

CRIMINAL LAW AMDT ACT 1935 S2

CRIMINAL LAW ACT 19971997 SCHED 1 PARA 7

ELECTRICITY SUPPLY BOARD v GORMLEY 1985 IR 129

CRIMINAL LAW ACT 19971997 SCHED 1

CRIMINAL LAW AMDT ACT 1935 S1(1)

CRIMINAL LAW AMDT ACT 1935 S1

CRIMINAL LAW AMDT ACT 1935 S2(3)

SEXUAL OFFENCES (JURISDICTION) ACT 1996 S2(1)

PIGS MARKETING BOARD v DONNELLY (DUBLIN) LTD 1939 IR 413

MCDONALD v BORD NA GCON & AG 1965 IR 217

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

SHEERIN, STATE v KENNEDY & ORS 1966 IR 379

ELECTRICITY (SUPPLY) ACT 1927 S53

ELECTRICITY (SUPPLY) ACT 1927 S98

ELECTRICITY (SUPPLY) (AMDT) ACT 1945 S46

ELECTRICITY (SUPPLY) (AMDT) ACT 1941 S5

SEXUAL OFFENCES (JURISDICTION) ACT 1996 SCHED

CONSTITUTION ART 34.4.5

REPRESENTATIVES OF CHADWICK (DECEASED) & DAVIS-GOFF v FINGAL CO COUNCIL 2008 3 IR 66 2008 1 ILRM 481 2007/9/1732 2007 IESC 49

BUCKLEY & ORS (SINN FEIN) v AG & POWER 1950 IR 67

GOODMAN INTERNATIONAL & GOODMAN v JUSTICE HAMILTON (BEEF TRIBUNAL) & ORS 1992 2 IR 542 1992 ILRM 145

CURTIN v CLERK OF DAIL EIREANN & ORS 2006 2 IR 556 2006 2 ILRM 99 2006/13/2692 2006 IESC 14

NORRIS v AG 1984 IR 36

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S3

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S48

COURTS OF JUSTICE ACT 1924 S29

AG, PEOPLE v CONMEY 1975 IR 341

CONSTITUTION ART 40.3

CONSTITUTION ART 50.1

CONSTITUTIONAL LAW

Statute

Appeal against refusal of challenge to constitutionality of section creating strict liability offence - Offence of unlawful carnal knowledge - Absence of provision for defence of honest but mistaken belief as to age - Whether plaintiff entitled to declaration of unconstitutionality - Principle of presumption of constitutionality - Double construction rule - Whether defence of mistake of age open to appellant - Acts passed after Constitution re-enacting pre-Constitution statutes - Whether Act enjoyed benefit of presumption of constitutionality - Whether double construction rule should be applied - Meaning to be ascribed to section - CC v Ireland [2005] IESC 48, [2006] IESC 33, [2006] 4 IR 1; Electricity Supply Board v Gormley [1985] IR 129; Pigs Marketing Board v Donnelly (Dublin) Ltd [1939] IR 413; McDonald v Bord na gCon [1965] IR 217; East Donegal Co-Operative Livestock Mart Ltd v AG [1970] IR 317; State (Sheerin) v Kennedy [1966] IR 379; Representatives of Chadwick (Deceased) v Fingal County Council [2007] IESC 49, [2008] 3 IR 66; Buckley v Attorney General [1950] IR 67; Goodman International v Hamilton [1992] 2 IR 542; Curtin v Clerk of Dáil Éireann [2006] IESC 14, [2006] 2 IR 556; Norris v Attorney General [1984] IR 36 and People (Attorney General) v Conmey [1975] IR 341 considered - Criminal Law (Amendment) Act 1935, s 2 - Constitution of Ireland 1937, Art 34.4.5 - Appeal allowed; declaration that section inconsistent with Constitution granted (70/2009 - SC - 21/12/2011) [2011] IESC 49

S(Z) v Director of Public Prosecutions

Facts: The appellant sought to appeal a refusal of the High Court for a declaration that s. 2(1) Criminal Law Amendment Act 1935, as amended, was unconstitutional on the grounds that the statutory provision did not require proof of mens rea as to age or provide for a defence of honest mistake. He submitted that s. 2(1) created an offence of absolute liability and that he was prejudiced similar to C.C. v. Ireland [2006] 4 IR 1. The Court considered whether the presumption of constitutionality attached to the Act of 1935 through the operation of the Criminal Law Act 1997 by way of re-enactment. The High Court had held that the Act of 1935 enjoyed a presumption of constitutionality by reasons of its amended form.

Held by Denham J. (Murray, Hardiman, Fennelly, Macken JJ.) that the effect of the Act of 1997 was to vest the status of a offence in a post-Constitution statute and thus it had the status of a post- 1936 enactment. Fennelly J: the Oireachtas did not in 1997 purport to re-enact s. 2(1). It mistakenly assumed that it was still in force. It was a highly unusual and even unique situation. S. 2(1) of the Act of 1935 was inconsistent with the Constitution and did not survive the entry into force of the Constitution. The Court would allow the appeal and set aside a declaration that s. 2(1) was at all times inconsistent with the Constitution. Murray J.: s. 2(1) fell to be treated as a post-1937 statute. Article 34.4.5 of the Constitution excluded consideration of the constitutionality of s. 2(1).

Reporter: E.F.

1 Judgment delivered on the 21st day of December, 2011 , by Denham C.J.

2 Judgment of Murray J. delivered on the 21st day of December, 2011

3 JUDGMENT delivered by Mr. Justice Fennelly on the 21st day of December 2011.

4 Judgments delivered by Denham C.J., Murray J. & Fennelly J.

5 1. This is an appeal by Z.S., the plaintiff/appellant, hereinafter referred to as "the appellant", from the judgment and order of the High Court (Murphy J.) given on the 19 ^th December, 2008, refusing a declaration that the offence (with which the appellant is charged) contrary to s. 2(1) of the Criminal Law Amendment Act, 1935, as amended by s. 13 of the Criminal Law Act, 1997, is unconstitutional on the grounds that the statutory provision does not require proof of mens rea as to the age of the complainant, or provide for a defence of honest but mistaken belief as to age.

6 2. The appellant is charged with the offence of unlawful carnal knowledge of a girl under the age of 17 years contrary to s. 2(1) of the Criminal Law Amendment Act, 1935, as amended by s. 13 of the Criminal Law Act, 1997, referred to as "the Act of 1935, as amended".

7 3. The appellant is challenging the constitutionality of s. 2(1) of the Act of 1935, as amended. He submits that s. 2(1) creates an absolute liability offence so that the defence of mistake as to the age of the complainant is not open to him. Accordingly, the appellant contends that he is prejudiced and that he is entitled to a declaration of the unconstitutionality of s. 2(1) on the same reasoning as in C.C. v. Ireland [2006] 4 I.R. 1.

Background Facts

8 4. The parties agreed a statement of facts in the High Court. The complainant was born on the 9 ^th January, 1987. At the time of the incident complained of she was 16 years of age. The appellant was charged with the offence of unlawful carnal knowledge of a girl under the age of 17 years, contrary to s. 2(1) of the Act of 1935, as amended. The appellant was returned for trial on the 10 ^th February, 2006, to the Dublin Circuit Criminal Court. The prosecution case, inter alia, was that at the time of the alleged incident complained of, the appellant ran a shop and hired the complainant as a shop assistant. The incident complained of occurred on the 23 ^rd October, 2003, when the complainant was working for the appellant as a shop assistant. The complainant alleged that the appellant had raped her and she described an incident of sexual intercourse. Seminal staining was found on the inside of the complainant's jeans. A blood sample was taken from the appellant. A DNA match was found between the said sample and the semen staining. The appellant was arrested on the 23 ^rd February, 2004, and detained for the offence of rape. The appellant was interviewed and denied having sexual intercourse with the complainant. The appellant was returned for trial by the Dublin Circuit Criminal Court in February, 2006.

Civil Proceedings

9 5. The appellant brought proceedings in the High Court seeking a declaration that s. 2(1) of the Act of 1935, as amended, is invalid having regard to the provisions of the Constitution of Ireland, 1937. The appellant also sought an injunction restraining the Director of Public Prosecutions from prosecuting him on a specified Bill of Indictment pending in the Dublin Circuit Criminal Court, until determination of these proceedings.

The High Court

10 6. On the 19 ^th December, 2008, the High Court refused the relief sought. The High Court held that s. 2, of the Act of 1935, as amended, because of its amended form, enjoys a presumption of constitutionality, and thus the double construction rule may be applied, and as s. 2 is silent as to any mental element, the double construction rule applies so as to provide knowledge of age as a relevant consideration. The learned High Court judge held:-

"In addition, while the court is mindful of the decision in Chadwick to the effect that a long-established interpretation should not be departed from without good reason, the presumption of constitutionality and the double construction rule furnish ample reason for a new interpretation of s. 2. It is clear from the authorities referred to, in particular In re Haughey, that those principles can, subject to established limits, lead the court to adopt an interpretation of a post-Constitution statutory provision which is at variance with that which would flow from an application of the normal rules of statutory interpretation. Indeed, in Chadwick Fennelly J. expressly held (at paras. 36-37) that he would not depart from the traditional interpretation of the provision under consideration because, among other reasons, such an interpretation would not place the provision in conflict with Article 40.3.2° of the Constitution. The fact that s. 2, as amended, has acquired the status of a post-Constitution statute is therefore sufficient to justify a construction of...