Indecent assault conviction upheld as offence survived 1997 Act repeal due to separate statutory history.

[2001] IESC 68

THE SUPREME COURT

72/00

Keane C.J.

Denham J.

Murphy J.

Murray J.

Hardiman J.

IN THE MATTER OF AN INQUIRY UNDER ARTICLE 40.4 (ii) OF THE CONSTITUTION

Between:

S.O.C

Applicant

and

THE GOVERNOR OF CURRAGH PRISON

Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS and HIS HONOUR JUDGE HAUGH

Notice Parties

JUDGMENT of Mr. Justice Hardiman delivered the 13th day of July, 2001.

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:-

“That you did on a date unknown in the year 1989 indecently assault one L.M., a female child under the age of fifteen years

contrary to common law as provided for in Section 10 Criminal Law (Rape) Act, 1981”.

The Applicant was sentenced to 3½ years in prison.

2. 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.

The issue.

3. The Applicant says that the proceedings commenced against him by Summons, and his subsequent conviction in those

proceedings, are invalid for the following reasons:-

(a) The proper description of the offence wherewith he was charged had, long before the date of conviction, been altered to

“sexual assault” by the Criminal Law (Rape) (Amendment) Act, 1990, Section 2.

(b) The offence of assault and therefore, of necessity, of indecent and/or sexual assault, was abolished by the Non-Fatal

Offences against the Person Act, 1997, Section 22(1)(a).

(c) The Interpretation (Amendment) Act, 1997 was enacted on the 4th November, 1997 in an attempt to remedy the failure of

the repealing statute to make any transitional provisions. The Applicant contends that it does not in fact have that effect and

that if does it is repugnant to the Constitution and invalid because it purports retroactively to impose criminal penalties.

Clearly, the third point will only arise if the second is resolved in favour of the Applicant.

Was the offence misdescribed?

4. Section 2 of the Criminal Law (Rape) (Amendment) Act, 1990 came into force on the 21st January, 1991. It provides as follows:-

(1) “The offence of indecent assault upon any male person and the offence of indecent assault upon any female person shall be

known as sexual assault”.

5. In DPP v. EF (Supreme Court unreported 24th February, 1994) Egan J., giving the judgment of the Court, referred to Section 2 of

the 1990 Act and said:-

“It is clear from the foregoing that the offence of indecent assault remains but as and from the 21st January, 1991 it became known

as sexual assault. It still remains a common law offence for which punishment is provided by statute. In regard to indecent assaults

which occurred prior to the 21st January, 1991 I see no possible objection to them being referred to in indictments as ‘indecent

assaults’. An indictment in this regard should refer to the offence as ‘indecent assault contrary to common law’ and while there is no

necessity to include the words ‘and as provided for by Section 10 of the Criminal Law (Rape) Act, 1981’ , it might be helpful as

pointing out where the punishment provision is to be found.”

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.

Was the offence repealed?

7. Section 28 of the Non-Fatal against the Persons Act, 1997 provides as follows:-

“The following common law offences are hereby abolished-

(a) Assault and battery,

(b) Assault occasioning actual bodily harm,

(c) Kidnapping,

(d) False imprisonment.

8. The Appellant contends that since the offence of indecent assault is merely a special instance of common assault, and not a

separate common law offence, it was thereby repealed by the Act of 1997.

9. Because it is a common law offence, it is not saved by the Provisions of Interpretation Act, 1937, which applied to statutory

offences only. This point accordingly raises the basic question whether the expression “assault and battery” includes indecent

assault, now known as sexual assault.

10. 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.

11. If this is so it follows that that offence was not repealed by Section 28 of the 1997 Act.

12. 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.

13. 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.

14. 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:-

“It is quite clear that the 1997 Act adopted many of the recommendations contained in the Law Reform Commission report on Non-

Fatal Offences against the Person. That report forms the backdrop to the legislation. But it is equally clear that that report was not

really with sexual offences”.

15. 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.

16. 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.

17. In view of this finding it is unnecessary to consider the effect of the Interpretation (Amendment) Act, 1997.

Conclusion.

18. I would dismiss the appeal and affirm the Order of the learned High Court Judge.