Supreme Court dismisses appeal declaring sexual offence statute unconstitutional due to lack of mens rea defence.

THE SUPREME COURT

[Appeal No: 70/09]

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

Macken J.

Between/

Z.S.

Plaintiff/Appellant

and

The Director of Public Prosecutions, Ireland,

and the Attorney General

Defendants/Respondents

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

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 19th 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.

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”.

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

4. The parties agreed a statement of facts in the High Court. The complainant was born on the 9th 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 10th

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

23rd 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 23rd 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

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

6. On the 19th 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 that provision which

differs from that which prevailed in respect of s. 2 in its original form.

Accordingly, the court concludes that s. 2, in its amended form, must be interpreted in such a way as to render

knowledge as to age a relevant consideration. This may mean that knowledge as to age is to be regarded as an element

of the offence, or that a defence of honest or of reasonable mistake as to age may be invoked. The court accepts the

submission of the defendants that that question should be determined by the trial court. As the Supreme Court indicated

in C.C., any of the three formulations identified above, and perhaps others, would “pass constitutional muster”, so that

once it has been determined that the provision is not of a strict liability nature, the question of what the provision

requires is one of statutory interpretation rather than constitutional law. The duty of the trial court, therefore, is to give

to the provision whatever interpretation is consistent with the Constitution and flows from an application of the ordinary

rules of statutory interpretation, including the unrebutted presumption at common law that some mental element should

be inferred.

[…]

This court has already determined that s. 2, as amended, is consistent with the Constitution. For the reasons noted

above, the basis relied upon in C.C. as excluding the mental element is not present here. Accordingly, it is legitimate and

indeed necessary for the trial court to infer a particular mental element under s. 2 as to the age of the complainant by

applying the ordinary rules of statutory interpretation.”

Appeal

7. The appellant filed a notice of appeal on the 4th March, 2009.

Trial in the Circuit Court

8. Since the judgment of the High Court, the appellant has been tried for the offence, having been refused an application for a stay.

The trial commenced before His Honour Judge McCartan on the 7th April, 2011, and ended on the 13th April, 2011, without the jury

reaching a verdict. The defence claimed that the appellant did not know the age of the complainant but that he believed she was 18

years of age. The complainant said her date of birth was on her C.V., and that she said she was only 16 during the alleged attack.

The appellant gave evidence that no date of birth appeared on the C.V.; the appellant said he believed her to be 18 because she had

said she had two years work experience. The appellant gave evidence that the complainant made the approaches to him and that

there was no sexual intercourse. In his charge to the jury, Judge McCartan directed that the defence could rely on an honest belief

about the complainant’s age. The jury did not reach a verdict.

Re-trial

9. The re-trial of the appellant is due to commence on the 24th January, 2012.

Issue

10. Thus at the core of this case is whether the defence of mistake of age is open to the appellant.

Amendment

11. Section 2(1) of the Criminal Law Amendment Act, 1935, provided for the offence of unlawful carnal knowledge of a girl between

the ages of 15 and 17 years of age.

It stated:-

“Any person who unlawfully and carnally knows any girl who is of or over the age of fifteen years and under the age of

seventeen years shall be guilty of a misdemeanour and shall be liable, in the case of a first conviction of such

misdemeanour, to penal servitude for any term not exceeding five years nor less than three years or to imprisonment for

any term not exceeding two years or, in the case of a second or any subsequent conviction of such misdemeanour, to

any term of penal servitude not exceeding ten years nor less than three years or to imprisonment for any term not

exceeding two years.”

12. Section 13 of the Criminal Law Act, 1997, referred to as “the Act of 1997”, amended this section. Paragraph 7 of the First

Schedule states:

“The Criminal law Amendment Act, 1935, shall be amended as follows: in section 2(1) and 2(2) (defilement of girl between

fifteen and seventeen years of age), “of or over the age of fifteen years and” shall be deleted.”

13. Consequently, the offence, as amended, is:

“Any person who unlawfully and carnally knows any girl who is under the age of seventeen years shall be guilty of a

misdemeanour and shall be liable …”

Re-enactment

14. The issue then arises as to whether the Act of 1997 was such a re-enactment as to give the status of having been passed since

the coming into force of the Constitution, and thus having the presumption of validity, and to which constitutional principles of

construction of post 1937 legislation would apply.

15. In Electricity Supply Board v. Gormley [1985] 1 I.R. 129 at p. 147 Finlay C.J. stated:-

“The first issue of law which arose on this aspect of the case was whether s. 53 of the Act of 1927, by virtue of the

amendment thereof by s. 46 of the Act of 1945, and s. 98 of the Act of 1927, by virtue of the amendment thereof by s. 5

of the Act of 1941, should be deemed to have been enacted or re-enacted by the Oireachtas since the coming into force

of the Constitution and thus attract a presumption of validity having regard to the provisions of the Constitution.

Where Acts passed since the coming into force of the Constitution expressly re-enact pre-Constitution statutes, this

Court has decided on a number of occasions that such re-enactment gives to them the status of having been passed

since the coming into force of the Constitution, thus applying the presumption to them. It is equally clear that the mere

fact of an amendment of a pre-Constitution statute contained in a statute passed after the coming into force of the

Constitution does not of itself give to that pre-Constitution statute a presumption of validity.

With regard to s. 53 of the Act of 1927, however, and the amendment made in it by s. 46 of the Act of 1945, the view of

the Court is that the nature and terms of that amendment, which extends and expands the nature of the works to which

s. 53 originally applied, and the terms of amendment, which not only made that extension but deemed the meaning of

“electric line” in s. 53 of the Act of 1927 to have always had this extended or expanded meaning, effectively re-enacted

s. 53 as part of a post-Constitution statute.

Similar considerations apply to the amendment of s. 98 of the Act of 1927 contained in s. 5 of the Act of 1941 which,

though less extensive than that contained in s. 46 of the 1945 Act, expressly extends the powers of the Board contained

in s. 98 to a new event or category of case, namely, its requirement to make a survey only, as distinct from the placing

of a line.”

16. The first issue of law in this case is whether s. 2(1) of the Act of 1935, as amended, should be deemed to have been enacted or

re-enacted by the Oireachtas since the coming into force of the Constitution and thus attract a presumption of validity having regard

to the provisions of the Constitution. The analysis of Finlay C.J. above is relevant to this case and I adopt and apply it.

17. The re-enactment of s. 2(1) of the Act of 1935, by the amendment of the Act of 1997, relates to the age of the complainant.

This has important consequences and addresses the nature of the offence.

18. The importance of the age of a complainant was referred to by Geoghegan J. in C.C. v. Ireland 4 I.R. 1 at p. 41, where he

stated:-

“The Oireachtas of Saorstát Éireann when enacting the Act of 1935 was clearly intending to revise the offences under

the Act of 1885 and to do this in a number of ways. It was clearly intended that what might be described as “the young

girl offence” was to be altered to cover girls under fifteen years of age rather than under thirteen years of age. It is

equally clear that the intention was to alter what might be described as “the older girl offence” to over the age of fifteen

years but under the age of seventeen years instead of over the age of thirteen years and under the age of sixteen

years.”

These issues have been re-addressed and re-enacted in the Act of 1997.

19. The Act of 1997 was an effective re-enactment of the offence. It extended the previous offence to new victims. The amendment

in 1997 was a fundamental change to the offence, creating an offence relating to all females under 17 years of age. The amendment

extended and expanded the nature of the offence. It was an enactment with a substantive effect. Therefore, the effect of the Act

of 1997 was to vest it with the status of an offence in a post Constitution statute and thus it has the status of a post 1937

enactment.

20. As this Court has determined this appeal as a pre 1937 statutory offence, the issue of determining the case on the basis of s. 2

of the Act of 1935, as amended, constituting a post 1937 statutory offence is not one that I will undertake in all the circumstances.