THE SUPREME COURT
Record No. 327/98
Hamilton, C.J.
Barrington, J.
Lynch, J.

IN THE MATTER OF AN INQUIRY UNDER
ARTICLE 40 SECTION 4(2) OF THE CONSTITUTION
BETWEEN
STEPHEN O’CONNOR
APPLICANT/APPELLANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE GOVERNOR OF CURRAGH PRISON
RESPONDENTS
JUDGMENT delivered the 3rd day of December 1999 by Lynch J.
	This is an Appeal from an Order of the High Court (Geoghegan J.) made on the 18th of November 1998 refusing an application by the Applicant/Appellant for an Order under Article 40 section 4(2) of the Constitution for his release from prison.
	The matter has had a very long history and owing to the absence of information in the Appellant’s papers as to the reason for the length of time that has elapsed this Court had to make its own enquiries through the Court Office to ascertain facts which explained the delay which has occurred.
	The Applicant was served with a District Court Summons requiring him to attend in Court at Bray in the County of Wicklow on the 19th of March 1993 to answer a charge that he did:
	“on a date unknown in the year 1989 indecently assault one (L.M.) a female child under the age of 15 years contrary to common law as provided for in section 10 Criminal Law (Rape) Act 1981.”

	The Applicant included in his papers a copy of an Order of the High Court (Flood J.) made on the 29th October 1993  giving leave to the Applicant to apply by way of judicial review for an Order to prohibit his trial on the foregoing charge and to stay the further prosecution thereof pending the determination of the said application.  The Applicant duly served a motion seeking the foregoing relief and a statement of opposition was served and filed on behalf of the Director of Public Prosecutions on the 4th of July 1994.  No information appears from the Appellant’s papers as to what happened the foregoing judicial review proceedings at the substantive trial thereof.  This Court obtained from the Supreme Court Office a copy of an Order of the Supreme Court (O’Flaherty, J., Barrington, J. and Keane, J.) made on the 24th of January 1997 as follows:-
	“The motion on the part of the Applicant pursuant to Notice of Appeal dated the 20th day of December 1994 by way of appeal from the judgment and Order of the High Court (Mr Justice Barr) given and made on the 17th day of November 1994 (whereby the application by the Applicant by way of judicial review for an Order of Prohibition and other reliefs was refused) on the grounds and as set forth in the said Notice of Appeal coming on for hearing before this Court this day.
	 Whereupon and on reading the said Notice of Appeal the said Order of the High Court the documents referred to therein the judgment in the High Court, the submissions herein and on hearing Counsel for the Applicant and Counsel for the Respondents.
	
	IT IS ORDERED AND ADJUDGED that the Appeal herein be dismissed and that the said judgment and Order of the High Court do stand affirmed accordingly.”

	It will be seen from that Order of the Supreme Court that the substantive proceedings by way of judicial review for an Order of Prohibition came before the High Court (Barr J.) on the 17th of November 1994 and were refused but the Appellant herein appealed to the Supreme Court which affirmed the Order of the High Court on the 24th of January 1997.  The judgment of the Supreme Court was delivered ex tempore by O’Flaherty J. (the other members of the Court concurring) and concludes as follows:-
	“I must say that I regard this application both as sought in the first instance, as well as on appeal, as being totally merit less.  I would dismiss the Appeal.”

	Thereafter the charge against the Appellant of indecent assault took its normal course.  A Book of Evidence was served:  the Appellant was returned for trial to Wicklow Circuit Court: and an indictment was laid to which the Appellant pleaded not guilty.  Following a trial of a few days before a Circuit Court Judge and jury at Wicklow Circuit Court the Appellant was found guilty of the said offence on the 1st of April 1998 and was ultimately sentenced to 3½ years imprisonment.  In November 1998 the Appellant commenced these proceedings for an enquiry as to the lawfulness or otherwise of his detention pursuant to Article 40 Section 4 of the Constitution.  The Applicant commenced such proceedings by way of an Notice dated the 3rd of November 1998 in which he set out as the grounds upon which he sought relief under Article 40 as follows:-
	“1.	That the indictment on which I stood trial and the subsequent conviction were bad in law.   Thereby depriving me of my right under Article 38 of the Constitution.
	 2.	That the sentence I received was bad in law.   Thereby depriving me of my rights under Article 40 Section 4 of the Constitution of Ireland.”

	The Appellant supported his application for relief under Article 40 of the Constitution by an affidavit sworn also on the 3rd of November 1998.  In paragraph 7 of that affidavit the Appellant says as follows:-
	“I say that the said summons and subsequent indictment were bad in law and deprived me of my rights under Article 38 of the Constitution for the following reasons:
		‘that Section 10 of the Criminal Law (Rape) Act 1981 was repealed by Section 21 and schedule of the Criminal Law (Rape) (Amendment) Act 1990’.
		A.	that the Summons containing the offence provided for in Section 10 of the Criminal Law (Rape) Act 1981 was served two years after Section 10 of the Criminal Law (Rape) Act 1981 was repealed.
		B.	That the indictment was preferred against me seven years after the repeal of Section 10 of the Criminal Law (Rape) Act 1981.
		C.	That I was convicted on the said indictment and remanded for a Victim Impact Report under the provisions of Section 5 (1) of the Criminal Justice Act 1993.
		D.	That on the 22nd of June 1998 I was sentenced to 3½ years imprisonment under Section 5(1) of the Criminal Justice Act 1993 for an offence within the meaning of the Criminal Evidence Act 1992 as stated in Section 5(2)(A) of the Criminal Justice Act 1993.
		E.	I say that Section 2(1) of the Criminal Evidence Act 1992 related to offences within the meaning of the Criminal Law (Rape) (Amendment) Act 1990.
		F.	I beg to refer to the Committal Warrant marked with the letter C.  I have endorsed my name prior to the swearing hereof.
		G.	I say as shown in the said Committal Warrant it is for an offence of indecent assault contrary to common law as provided for in Section 10 of the Criminal Law (Rape) Act 1981.
		H.	I say that I was deprived of my rights under Article 40(4) of the Constitution for the following reasons.
		I.	I was convicted for an offence that was not provided for by Section 10 of the Criminal Law (Rape) Act 1981 due to Section 10 having being repealed.
		J.	That I was sentenced under the provisions of Section 5(1) of the Criminal Justice Act 1993.
		K.	That I am detained in prison on a committal warrant for the offence of indecent assault contrary to common law as provided for in Section 10 of the Criminal Law (Rape) Act 1981.”  

	The Appellant’s main point before the High Court appears to have been a submission that the offence of indecent assault contrary to Section 10 of the Criminal Law (Rape) Act 1981 was repealed by the Criminal Law (Rape) (Amendment) Act 1990 and was thereby replaced by a new offence of sexual assault.  Consequently the Appellant submitted in the High Court that he was tried and convicted in March/April 1998 of an offence which no longer existed and he should therefore be released pursuant to Article 40 Section 4 of the constitution.
	Having regard to the submissions of Mr Forde, Senior Counsel, which were made to this Court on behalf of the Appellant on the 9th of July 1999 I think it is necessary to quote in full the Counsel’s note of the ex tempore judgment of Geoghegan J. delivered on the 18th of November 1998 which is as follows:-
	“The background to this application is that by Summons dated 8th of February 1993 the Applicant was charged with having on a date unknown in 1989 indecently assaulted a female child under 15 years of age contrary to common law as provided for in Section 10 of the Criminal Law (Rape) Act 1981.  He was charged with the same offence by Count 2 of an indictment proferred against him in 1997.  On the 1st of April 1998 he was convicted on this charge in the Wicklow Circuit Criminal Court.  On the 22nd of June 1998 he received a sentence of 3½ years imprisonment in respect of this offence.  The Respondent’s certificate dated the 18th of November 1998 justifying the Applicant’s detention exhibits all of the committal and transfer warrants pertaining to the Applicant’s detention in respect of this offence.
	
	  The Applicant claims that he is in unlawful detention on two grounds.  His first ground is based on the repeal of Section 10 of the Criminal Law (Rape) Act 1981 by Section 21 and the schedule to the Criminal Law (Rape) (Amendment) Act 1990.  He claims that he was convicted for an offence that was abolished prior to the proceedings against him coming into being.
	
	  In this regard, Counsel for the Respondent referred me to Section 21(2) of the Interpretation Act 1937.  I am satisfied that subsection and in particular the reference to the word ‘instituted’ is sufficient to meet the Applicant’s case.  By virtue of this provision the D.P.P. was entitled to prosecute an offence under the Criminal Law (Rape) Act 1981 even though the Criminal Law (Rape) (Amendment) Act 1990 had come into force at the time the summons was served and the indictment proferred against the Applicant.  In any case the offence of indecent assault is a common law offence that was merely renamed by the 1990 Act.  Since the 1990 Act (and indeed the 1981 Act itself) created no new offence the Applicant has at all times being prosecuted for and tried and convicted of the same offence.
	
	  The Applicant’s second ground is that his remand for the preparation of a Victim Impact Report between the time of his conviction and his sentence under Section 5(1) of the Criminal Justice Act 1993 was unlawful.  This is based upon the assertion that in order for him to have been remanded under that Section 5(2)(A) of the 1993 Act he had to have been convicted of an offence within the meaning of the Criminal Evidence Act 1992.  Since the 1992 Act makes no reference to the 1981 Act the remand and therefore his continuing detention is unlawful.
	
	  I am satisfied that, notwithstanding the provisions of the 1993 Act, the trial judge had an inherent jurisdiction to remand the Applicant in custody for preparation of a Victim Impact Report.  The practice of remands for the preparation of reports of this nature had already been established  prior to the enactment of the 1993 Act which merely put that practice on a statutory footing.  I therefore reject the Applicant’s submission under this heading.  Whilst this conclusion absolves me from having to consider the argument that the 1992 Act made no reference to the Act under which he was convicted, I would add that the common law nature of the offence of which he was convicted means that the Applicant was in fact tried and convicted of an offence under the 1992 Act.”

	It is clear from the foregoing judgment that the two points relied upon and argued  before the High Court related first to the repeal of Section 10 of the 1981 Act by the 1990 Act and secondly to the adjournment of sentence pending the obtaining of a Victim Impact Report. From that judgment of the High Court the Appellant has appealed to this Court and has set out the grounds of his appeal in a document dated the 6th of December 1998.  It is helpful to quote these grounds in full in order to make quite clear the issues which were brought or sought to be brought before the Supreme Court.
	“The grounds for the said Appeal are as follows:-
	1.	That the learned trial judge erred in law and in fact in holding that the provisions of Section 5(1) of the Criminal Justice Act 1993 as defined in Section 2(1) of the Criminal Evidence Act 1992 for an offence contrary to Section 2 of the Criminal Law (Rape) (Amendment) Act 1990 extended to an offence of indecent assault contrary to common law as provided for in Section 10 of the Criminal Law (Rape) Act 1981.
	
	2.	That the learned trial judge erred in law and in fact in holding that the Appellant was not sentenced under both the provisions of Section 10 of the Criminal Law (Rape) Act 1981 and Section 5(1) of the Criminal Justice Act 1993.
	
	3.	That the Sentencing Court erred in law and in fact by remanding the Appellant for a Victim Impact Report pursuant to Section 5(1) of the Criminal Justice Act 1993 for the offence of indecent assault for which punishment was provided for in Section 10 of the Criminal Law (Rape) Act 1981.
	
	4.	That the Appellant was granted an Order of Prohibition and leave to apply for an Order of Certiorari (Exhibit A) to quash the indictment by way of judicial review before the Honourable Mr Justice Flood on the 29th October 1993 and upon the Originating Notice of Motion together with the statement grounding the said application and verifying affidavit being filed (Exhibit B) and copies duly served on the Registrar for and on behalf of the learned Circuit Court and the Chief State Solicitor for and on behalf of the Director of Public Prosecutions within the time specified by the said Order.
	
	5.	The Respondent on being notified of the provisions of Order 84 rule 22(4) of the Rules of the Superior Courts S.I. No 15 of 1986 did fail to comply with the said Order of the Honourable Mr Justice Flood in as much that no statement of grounds of opposition and an Affidavit verifying such grounds was filed or served within the 21 days period laid down in the said Order of Mr Justice Flood after filing and service of the Notice of Motion by the Applicant.
	
	6.	The Statement of Opposition pursuant to Order 84, Rule 22(4) (Exhibit D) was not filed till the 4th of June 1994 some eight months after the originating Notice of Motion was filed and served on the 2nd November 1993.
	
	7.	The verifying Affidavit of Philip Moynihan (Exhibit D) made on behalf of the Director of Public Prosecutions is shown by the official stamp to have been filed in the Central Office of the High Court on the 4th June 1994.  On page 2 of the said Affidavit it is shown that the said Philip Moynihan did not swear or sign the Affidavit until the 4th of July 1994 that being one month after it was filed and stamped by the Central Office.”

	When the Appeal was argued before this Court on the 9th of July 1999 (having been previously adjourned in order to get information as to what had happened to the judicial review proceedings) the argument put forward by Mr Forde on behalf of the Appellant was that Section 28 of the Non-Fatal Offences Against the Person Act 1997 had prior to the trial of the Appellant in Wicklow Circuit Criminal Court “abolished” the offence of indecent assault whether known by that name or by the name of sexual assault pursuant to Section 2 of the Criminal Law (Rape) (Amendment) Act 1990.
	It seems to be clear that no such case was made by the Appellant in his judicial review proceedings in the High Court before Flood J. in October 1993 or before Barr J. in November 1994 nor in the Supreme Court in January 1997.  It is crystal clear that no such case was made in these proceedings for relief under Article 40 Section 4 of the Constitution in any of the documentation in the High Court nor at the hearing before Geoghegan J. nor does the Notice of Appeal to this Court make any mention thereof.  The attempt to raise this point for the first time in this Court is to misconceive the function of the Supreme Court which is a Court of Appeal and not, save in a very few limited exceptions such as a reference under Article 26 of the Constitution, a Court of First Instance.  I would therefore decline to deal with this argument put forward for the first time in the Supreme Court by Mr Forde, Senior Counsel on behalf of the Appellant.
	So far as the grounds of appeal in the Notice of Appeal are concerned they were not argued before us at all and in any event having regard to the decision of the Supreme Court in Director of Public Prosecutions v E.F. (judgment delivered the 24th of February 1994 by Egan J.) there is no substance in any of these grounds.
	Accordingly I would dismiss this Appeal.  If the Appellant wishes to make a case based on the effect (if any) of the Non-Fatal Offences Against the Person Act 1997 on the crime of indecent assault and/or sexual assault it is, of course, still open to him to do so by way of appropriate proceedings to be commenced in the High Court.

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