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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> O'C. (S.) v. Governor of Curragh Prison [2001] IESC 68 (13 July 2001) URL: http://www.bailii.org/ie/cases/IESC/2001/68.html Cite as: [2001] IESC 68, [2002] 1 IR 66 |
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1. The
Applicant was convicted of indecent assault, after a two day trial, on the 1st
April, 1998. The precise form of the charge against him was as follows:-
3. In
November 1998 the Applicant challenged his detention pursuant to Article
40.4(ii). He was unsuccessful in these proceedings and appealed. In the
course of this appeal he raised for the first time the point at the centre of
the present proceedings. The Supreme Court, however, took the view that it
could not consider this point because it had not been raised in the High Court.
Accordingly, it dismissed the appeal but observed that
“It
is, of course, still open to him (to raise the relevant point) by way of
appropriate proceedings to be commenced in the High Court”.
The
Applicant did so shortly afterwards.
4. The
Applicant says that the proceedings commenced against him by Summons, and his
subsequent conviction in those proceedings, are invalid for the following
reasons:-
6. Accordingly
it seems clear that the effect of Section 2 of the Act, 1990 was simply to
change the name of the offence while leaving its nature and constituents
unaltered. Obviously the legislature might have approached this matter
otherwise by constituting a new offence but it has chosen simply to alter the
name. There is no reason not to follow the decision in
EF
and accordingly I would hold that the offence was not misdescribed either in
the Summons or in the form of conviction.
8. It
is clear from the judgment of Egan J. in
EF,
that he regarded indecent assault as a common law offence in itself: see the
first two sentences of the passage already cited.
10. I
believe that this view is confirmed by a consideration of the terms, context
and structure of the 1997 Act. There is nothing on the face of the Act to
suggest that it was designed to have any effect on the law relating to sexual
offences, which had been the subject of extensive statutory provision in the
years preceding 1997. The original statutory provision providing a penalty
for indecent assault, Section 52 of the Offence against the Person Act, 1861,
had been repealed and replaced by Section 6 of the 1935 Criminal Law Amendment
Act. This was in turn repealed and replaced by Section 10 of the Criminal Law
(Rape) Act, 1981, and that provision was repealed and replaced by Section 2 of
the Act of 1990, cited above. Accordingly I would agree with the submission
advanced on behalf of the first-named Notice Party that the offence of
indecent/sexual assault has
“travelled
in a compartment entirely separate from the common law offences with which the
1997 Act is concerned”
at least since 1935.
11. Moreover,
the assault offences abolished by Section 28 are replaced by new statutory
offences created in earlier sections of the 1997 Act. However, that Act does
not create any statutory offence similar in nature to indecent assault or
sexual assault, or indeed any offence of a sexual nature at all.
12. The
learned trial judge in this case, on the authority of
DPP
v. McDonagh
[1996] 2 ILRM 469, considered the legislative history, including
“pre
parliamentary material”,
relating to the Act of 1997. He said:-
13. I
would respectfully agree with that summary. The report focussed on the
repealing and replacing of the greater part of the Offences against the Person
Act, 1861 with new statutory offences.
14. I
would therefore conclude that the Act of 1997 did not have the effect of
abolishing the Offence of Indecent Assault and that it was not intended to do so.
15. In
view of this finding it is unnecessary to consider the effect of the
Interpretation (Amendment) Act, 1997.