Z.S. v DPP and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Roderick Murphy
• Judgment Date: 19 December 2008
• Neutral Citation: [2008] IEHC 427
• Docket Number: [657P/2007]
• Court: High Court
• Date: 19 December 2008

S (Z) v DPP & Ors

BETWEEN

Z. S.

PLAINTIFF

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

[2008] IEHC 427

[657P/2007]

THE HIGH COURT

CONSTITUTIONAL LAW

Statute

Pre 1937 statute - Legislation amended after 1937 - Presumption of constitutionality - Double construction rule - Jus tertii - Criminal law - Sexual offences - Defence of mistake as to age - Consistency of similar offence previously undermined - Whether challenge premature - Whether construction of offence properly for trial court - Whether post-constitution amendment gave rise to presumption of constitutionality - CC v Ireland [2006] IESC 33 [2006] 4 IR 1, GE v DPP [2008] IESC 61 (Unrep, SC, 30/10/2008), Chadwick v Fingal County Council [2007] IESC 49 [2008] 3 IR 66, Re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 and ESB v Gormley [1985] IR 129 applied; Curtis v AG [1985] IR 458, Osmanovic v DPP [2006] IESC 50 [2006] 3 IR 504, Byrne v Grey [1988] IR 31, Cahill v Sutton [1980] IR 269, Norris v AG [1984] IR 36, A v Governor of Arbour Hill Prison [2006] IESC 45 [2006] 4 IR 88, Blanchfield v Hartnett [2002] 3 IR 207, McNulty v DPP [2006] IEHC 74 (Unrep, Murphy J, 15/3/2006), Re Equal Status Bill 1997 [1997] 2 IR 387, State (Sheerin) v Kennedy [1966] IR 379, McDonald v Bord na gCon [1965] IR 217, Croke v Smith (No 2) [1998] 1 IR 101, Re Health (Amendment) (No 2) Bill 2004 [2005] IESC 7 [2005] 1 IR 188, East Donegal Co-operative Livestock Mart Ltd v Attorney General [1970] IR 317, O'Brien v Keogh [1972] IR 144, In re Haughey [1971] IR 217, McMahon v Leahy [1984] IR 525 and Haughey v Moriarty [1999] 3 IR 1 considered; Kennedy v DPP [2007] IEHC 3 (Unrep, MacMenamin J, 11/1/2007) and Re Employment Equality Bill 1996 [1997] 2 IR 321 distinguished - Criminal Law Act 1997 (No 14), s 13 - Criminal Law Amendment Act 1935 (No 6), ss 1 and 2 - Constitution of Ireland 1937, arts 34.4.5 and 40.3.2 - Declaration that legislation inconsistent with Constitution refused (2007/657P - Murphy J - 19/12/2008) [2008] IEHC 427

S(Z) v Director of Public Proscutions

CRIMINAL LAW (AMDT) ACT 1935 S2

CRIMINAL LAW ACT 1997 S13

CRIMINAL LAW (AMDT) ACT 1935 S2(1)

KENNEDY v DPP UNREP MACMENAMIN 11.01.2007 2007/32/6613 2007 IEHC 3

PREVENTION OF CORRUPTION ACT 2001 S4

CURTIS v AG 1985 IR 458

CUSTOMS CONSOLIDATION ACT 1876 S186 (UK)

FINANCE ACT 1963 S34

OSMANOVIC v DPP 2006 3 IR 504

FINANCE ACT 1997 S89(b)

C C v IRELAND 2006 4 IR 1

CRIMINAL LAW AMENDMENT ACT 1935 S1(1)

E(G) v DPP UNREP SUPREME 30.10.2008 2008 IESC 61

CRIMINAL LAW AMENDMENT ACT 1935 S1(1)

BLANCHFIELD v HARTNETT 2002 3 IR 207

BYRNE v GREY 1988 IR 31

MCNULTY v DPP UNREP MURPHY 15.3.2006 2006/36/7769 2006 IEHC 74

BANKERS BOOKS EVIDENCE ACT 1879 S7

CAHILL v SUTTON 1980 IR 269

STATUTE OF LIMITATIONS 1957 S11(2)(b)

NORRIS v AG 1984 IR 36

OFFENCES AGAINST THE PERSON ACT 1861 S61

OFFENCES AGAINST THE PERSON ACT 1861 S62

A v GOVERNOR OF ARBOUR HILL PRISON 2006 4 IR 88

SHEERIN STATE v KENNEDY 1966 IR 379

HAUGHEY v MORIARTY 1999 3 IR 1

CHADWICK v FINGAL CO COUNCIL UNREP SUPREME 6.11.2007 2007/9/1732

ESB v GORMLEY 1985 IR 129

ELECTRICITY SUPPLY ACT 1927 S53

ELECTRICITY SUPPLY (AMDT) ACT 1945 S46

ELECTRICITY SUPPLY ACT 1927 S98

ELECTRICITY SUPPLY (AMDT) ACT 1941 S5

CRIMINAL LAW ACT 1997 S13

EQUAL STATUS BILL 1997 IN RE 1997 2 IR 387

EMPLOYMENT EQUALITY BILL 1996 IN RE 1997 2 IR 321

MCDONALD v BORD NA gCON 1965 IR 217

CROKE v SMITH (NO 2) 1998 1 IR 101

MENTAL TREATMENT ACT 1945 S172

HEALTH (AMDT) (NO 2) BILL 2004 IN RE 2005 1 IR 105

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD v AG 1970 IR 317 341

O'BRIEN v KEOGH 1972 IR 144 155

HAUGHEY IN RE 1971 IR 217

COMMITTEE OF PUBLIC ACCOUNTS OF DAIL EIREANN (PRIVILEGE AND PROCEDURE) ACT 1970 S3(4)

MCMAHON v LEAHY 1984 IR 525

CONSTITUTION ART 34.4.5

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 IN RE 2000 2 IR 360 372

Judgment of

Mr Justice Roderick Murphy

1 delivered on the 19th day of DECEMBER 2008.

2 The facts which follow are agreed between the parties.

3 The plaintiff has been returned for trial before the Circuit Criminal Court. On 20^th 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").

4 The provision has since been repealed and replaced by the Criminal Law (Sexual Offences) Act, 2006, though the plaintiff was charged before its repeal.

5 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.

6 The 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.

7 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 onKennedy v. DPP (Unreported, High Court, 11^th 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."

8 The plaintiff relied onCurtis v. Attorney General [1985] IR 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: seeCahill v. Sutton [1980] I.R. 269, at page 286."

9 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.

10 Noting that the High Court had considered both applications somewhat premature, Geoghegan J (with whose judgment on the issue oflocus standi the other members of the Court agreed) took a different view, saying (at para. 19):

"I do not accept thatlocus 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."

11 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 ofCurtis v. The Attorney General, a decision of Carroll J. in the High Court. Th...