288 Coleman v. Ireland & Ors [2004] IEHC 288 (6 July 2004)

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    [2004] IEHC 288

    THE HIGH COURT
    DUBLIN
    (JUDICIAL REVIEW)

    Record No.2002/715JR

    Between/

    CHRISTOPHER COLEMAN

    Applicant

    -and-

    Between/

    Record No.2002/716JR

    JOSEPH MOLLOY

    Applicant

    -and-

    Between/

    Record No.2002/714JR

    PAUL GRACE

    Applicant

    -and-

    IRELAND AND THE ATTORNEY GENERAL
    AND THE DIRECTOR OF PUBLIC PROSECUTIONS
    APPROVED JUDGMENT OF MR. JUSTICE T.C. SMYTH
    DELIVERED ON TUESDAY, 6TH JULY 2004

    JUDGMENT DELIVERED BY MR. JUSTICE T.C. SMYTH ON
    TUESDAY. 6TH JUNE 2004
    MR. JUSTICE SMYTH:
    These applications have been heard together because they raise common issues as to:- (a) the date from which time is to be calculated for the purposes of 0.84 r.21 of the Rules of the Superior courts if a Judicial Review process is to be a precursor to a criminal trial, (b) the propriety or the application of the process of Judicial Review in advance of a criminal trial, (c) questions of statutory interpretation and (e) the constitutionality of statutes.
    All three Applicants have been charged with sexual offences against the same female girl or young person at different times. The Applicants were sent forward for trial from the District court on 10th June 2002 and all the cases were listed for arraignment on 15th and 29th July 2002. The applications for leave for Judicial Review were brought before the Court on 6th November 2002 when Murphy J. extended the time up to that date to apply for Judicial Review. As of that date, the trial had been fixed for 13th November 2002. No Applicant has been served with the indictment, although there is no express averment to this fact in the case of the Applicant Molloy.
    The Case of Coleman.
    This Applicant is charged on four counts of unlawful carnal knowledge of a female under the age of 15 years contrary to section 1(1) of the Criminal Law (Amendment) Act 1935 (hereinafter referred to as "the Act of 1935") on different dates at different places over the period 20th July 2001 to 16th August 2001.
    In the affidavit of Mr. Ronald Lynham, the Applicant's solicitor, it is averred "that it appears from the Book of Evidence upon which the prosecution is grounded that:
    (a) The complainant in respect of the alleged offences was approximately 13 years 10/11 months old at the time of the alleged offences, having been born on 3rd September 1987, according to the date of birth recorded in her mother's statement to the Gardaí;
    (b) The Applicant made a statement to the Gardaí in which he stated he had consensual sexual intercourse with the complainant.
    (c) There are grounds upon which the Applicant could reasonably have believed that the Complainant was over 15 years of age".
    This Applicant was granted leave to seek the following reliefs:
    (a) Judicial Review by way of a Declaration that the exclusion of the defence of mistake by the Applicant as to the age of the Complainant in the said prosecution is repugnant to the constitution.
    (b) Judicial Review by way of a Declaration that knowledge or in the alternative reasonable belief on the part of the Applicant that the Complainant was 15 years or over is a defence.
    (c) An Order pursuant to o.84 r.20 (7) staying the said prosecution pending the determination of the proceedings herein.
    Leave was granted on all six grounds set out in the 'Statement of Grounds'.
    The Case of Molloy.
    This Applicant is charged with two counts relating to 10th August 2001 of unlawful carnal knowledge of a female under the age of 15 contrary to section 1(1) of the Act of 1935 and (2) that he did commit an act of buggery with a person under the age of 17 contrary to section 3 of the Criminal Law (Sexual offences) Act 1993 (hereinafter referred to as "the Act of 1993").
    In the affidavit of Mr. Ronald Lynham, the Applicant's solicitor, it is averred "that it appears from the Book of Evidence upon which the prosecution is grounded that:
    (a) The complainant in respect of the alleged offence was 13 years, 11 months old at the time of the said alleged offence, having been born on 3rd September 1987 according to the date of birth recorded in her statement to the Gardai;
    (b) The Applicant made a statement to the Gardai in which he stated that he had consensual sexual activity with the complainant and had thought that the complainant was 17 years old;
    (c) There are grounds upon which the Applicant could reasonably have believed that the complainant was 17 years of age".
    This Applicant was granted leave to seek the following reliefs:
    (a) Judicial Review by way of the declaration that the exclusion of the defence of mistake by the Applicant as to the age of the complainant in the said prosecution is repugnant to the constitution.
    (b) Judicial Review by way of declaration that knowledge or in the alternative reasonable belief on the part of the Applicant that the complainant was 17 years or over is a defence.
    (c) Judicial Review by way of declaration that, insofaras the Act of 1935 and the Act of 1993 fail to provide for the defence of innocent mistake and/or knowledge and/or reasonable belief, the said Acts are repugnant to the provisions of the constitution.
    (d) Judicial Review by way of a declaration that the Applicant is entitled to be acquitted in respect of the said prosecution in the event that the Third Named Respondent fails to prove that the Applicant did not believe that the complainant was 17 years old or over.
    (e) An order pursuant to 0.84 r.20(7) staying the said prosecution pending the determination of the proceedings herein.
    The Applicant was given those reliefs on the seven grounds set out in the Statement of Grounds.
    The Case of Grace.
    This Applicant is charged on two counts related to 16th August 2001 that he did sexually assault on two occasions on that date at the same location the same young girl or female person aged 13 years contrary to Section 2 of the Criminal Law (Rape)(Amendment) Act 1990 (hereinafter referred to as "the Act of 1990") as amended by section 37 of the sex offenders Act 2001 (hereinafter referred to as "the Act of 2001").
    In the affidavit of Ronald Lynham, the Applicant's solicitor, it is averred "that it appears from the Book of Evidence upon which the prosecution is grounded that:
    (i) The complainant in respect of the alleged offence was 13 years 11 months old at the time of the alleged offence having been born on 3rd September 1976 according to the date of birth recorded in her mother's statement to the Gardaí;
    (ii) The Applicant made a statement to the Gardaí in which he stated that the sexual activity in respect of which he engaged with the Complainant, which acts form the subject matter of the charges, was consented to by the complainant and that the complainant told the Applicant that she was 17 years old".
    The Applicant was granted leave to seek the following reliefs:
    (a) Judicial Review by way of a declaration that the statutory framework as encompassed by the Act of 1935 and the Act of 1990 is repugnant to
    the constitution insofar as the legislation does not permit the defence of reasonable mistake to be advanced and considered by a jury.
    (b) Judicial Review by way of declaration that the exclusion of the defence of reasonable mistake by the Applicant as to the age of the complainant in the said prosecution is repugnant to the constitution.
    (c) Judicial Review by way of a declaration that the Applicant is entitled to be acquitted in respect of the said prosecution in the event that the Third Named Respondent fails to prove that the Applicant did not believe that the Complainant was 17 years old or over.
    (d) Judicial Review by way of a declaration that the Applicant is entitled to advance the defence of reasonable mistake and have the said defence considered by a jury.
    (e) An order pursuant to 0.84 r.20(7) of the Rules of the superior courts 1986, staying the said prosecution pending the determination of the
    proceedings herein.
    The reliefs aforesaid were permitted on all seven grounds set out in the 'statement of Grounds.' This Applicant stated that he wished to be able to make the case that he engaged in sexual activity with a 13 year old girl but believed she was 17 years old. (He raised other matters more appropriately addressed to the trial judge).
    The Grounds upon which Leave Was Granted.
    Although there is some minor variation in the grounds, advanced by each Applicant, they can, I think, be broadly stated to be:
    (a) The provisions of the Act of 1935 replaced those of the Criminal Law (Amendment) Act 1885 and thereby (apparently) removed the statutory
    defence of reasonable mistake as to the age of the Complainant in the offence of unlawful carnal knowledge of girls under a specified age
    (which said view has been followed/endorsed by authors of textbooks).
    [Expressions in brackets from the case of Grace]
    (b) The legislature's intent in introducing the Act of 1935 appears to have been to exclude mistake (and/or knowledge and/or reasonable belief) as
    a defence in the said offence and the said Act does not enjoy a presumption of constitutionality. [Expressions in brackets and underlined from the case of Coleman and Molloy].
    (c) The Act of 1990 did not introduce a statutory defence of reasonable mistake as to the age of a Complainant [the case of Grace].
    (d) The legislature's intent in introducing the Act of 1993 appears to have been to exclude mistake and/or knowledge and/or reasonable belief as a
    defence in the offence of buggery of persons under 17 years of age when such a defence is permissible if a similar offence is committed
    on mentally impaired persons (the case of Molloy) .
    (e) In all the circumstances, the said prosecution of the Applicant would be in breach of the Applicant's constitutional rights; to fair procedures; not to be tried on any criminal charge save in due course of law; and not to be deprived of his liberty save in accordance with law.
    (f) The public policy objective of protecting young girls can be achieved by legislative means other than the imposition of strict liability
    unconnected to moral dereliction. Such imposition is unjust, irrational, inappropriate and repugnant to Article 40.1 of the constitution.
    The Grounds of Opposition.
    The Statement of Opposition raised preliminary issues And without prejudice thereto advanced grounds addressed to the substantive issues.
    The preliminary issues were:
    (a) That the applications for leave for Judicial Review were not brought promptly or within the time set out in 0.84 r.20(1) of the Rules of
    the Superior Courts, 1986.
    (b) That the Applicant (in the case of Grace) stands charged with two offences of sexual assault contrary to section 2 of the Act of 1990 as amended by the section 37 of the Act of 2001, and as he has not been charged with an offence contrary to the Act of 1935, he lacks locus standi to challenge the constitutionality of the 1935 Act.
    (c) Reliefs should be refused on the basis that relief is being sought in anticipation of certain facts being established before the circuit court. In the absence of such facts, the High Court is being invited to deliver judgment upon a hypothesis. It should not determine a moot.
    (d) Applicants are not entitled to declarations of entitlement of acquittal in respect of charges and S.(1) of the Act of 1935 as such would be an impermissible interference in the exercise of the jurisdiction of the circuit court.
    The substantive grounds of opposition are as follows:-
    A. General denials of -
    i) The observations in the grounds for relief based on the averments in the affidavit of Mr. Ronald Lynham earlier recorded in this judgment:
    ii) That the legislature, when introducing the impugned legislation, had the intent contended for by the Applicants.
    B. A challenge as to the accuracy of the statement of Grounds concerning the Act of 1935 in that S.4 of the Criminal Law Amendment Act 1885 ("the 1885 Act") made it a felony punishable by penal servitude for life or two years imprisonment, to have sexual intercourse with a girl aged under 13 years. Section 5 of the 1885 Act made it a misdemeanor punishable by two years imprisonment to have sexual intercourse with a girl under 16 years. Under the 1885 Act, it was a statutory defence to the misdemeanor charge that the accused had reasonable cause to believe the girl to be 16 years or more. The Act of 1935 raised these ages to 15 and 17 years respectively. The Act of 1935 did not incorporate a statutory defence of reasonable mistake as to age.
    C. Concerning the constitutionality of the Acts impugned, all the Acts enjoy a presumption of constitutionality in that the Act of 1935 was considered by the Oireachtas post 1937 in that it (the Act of 1935) was amended by the first schedule of the Criminal Law Act 1997 ("hereinafter referred to as the Act of 1997") AND that the Act of 1990 and the Act of 1993 enjoy a presumption of constitutionality. Furthermore, that the impugned legislation is consistent with the provision of the Constitution of Ireland.
    D. The prosecution of the Applicants would not be in breach of their rights and/or entitlements to fair procedures for any reason.
    E. The Respondents deny that:
    (i) the expression of strict liability can properly be said to attach to the offence in issue in these case but rather that the offences are of a type that do not require full mens rea -
    i.e. it is not necessary to prove mens rea in relation to each and every element of the actus reus: there is still available such general defences as are permitted by law, e.g.automatism, insanity, duress. Furthermore, the Third Named Respondent is under no lawful obligation to prove that the Applicant(s) did not believe that the injured party was 15 years or older as the case may be.
    (ii) Stricter Liability with respect to such offences as those with which the Applicants are charged is unconnected to moral dereliction, but that if offences do involve stricter liability connected to moral dereliction, such imposition is legitimate and warranted, being Parliament's proportionate response to the need to protect young girls.
    (iii) The imposition of stricter liability with respect to the offences in issue is unjust and/or irrational and/or inappropriate and/or repugnant to Art. 40.1 of the Constitution.
    F. The trial(s) of the Applicant(s) of the offence(s) charged or any of them do not breach any right(s) enjoyed by him (them) under or by virtue of the constitution, further the impugned legislative provisions are a proportionate response to the issues of social and public policy being addressed in the Acts impugned.
    G. The public policy of protecting young girls is an appropriate societal goal. Being a matter of public policy, the formulation and endorsement of same lies within the domain of the Oireachtas. The declaratory relief sought in these proceedings -
    * the exclusion of the defence of mistake in a prosecution under section 1 (1) of the Act of 1935 is repugnant to the Constitution.
    * knowledge or, in the alternative, reasonable belief, on the Applicant's part, that the injured party was 15 years or over is a defence to a charge of having contravened the immediate aforesaid provision.
    * insofar as the Act of 1935 does not provide for the defence of innocent mistake and/or knowledge and/or reasonable belief, the said Act is repugnant to the provisions of the Constitution.
    would, if made, constitute an impermissible interference in the legislative power devolved exclusively upon the Oireachtas by virtue of Art. 15.2.1 of the Constitution.
    In the premises, the court has no jurisdiction to grant the reliefs sought in this regard.
    Preliminary Point - Delay in Bringing the Application.
    A. I am satisfied and find as a fact that:
    1. on 10th June 2002 the Applicants were served with documents specified in section 4B(1) of the Criminal Procedure Act 1967 as inserted by section 9 of the criminal justice Act 1999 (hereinafter referred to as "the Book of Evidence") in respect of events alleged to have taken place less than a year earlier (as summarised earlier in the judgment from the affidavit filed on behalf of the Applicants).
    2. As from that date (10th June 2002) the Applicants, and each of them, were on notice of the details of the charges against them, and in each of them the nature of the case being asserted on behalf of the Third Named Respondent.
    3. Leave to bring these proceedings was not sought until 6th November 2002.
    4. The Applicants had an affidavit filed on their behalf at "the leave stage" in which it is averred:
    "....any delay in this case has arisen given the need for legal advice and instructions in circumstances where I am advised that Counsel on behalf of
    the Applicant were not aware of the existence of the Supreme Court decision in S.F. -v- Ireland, the Attorney General and the Director of Public
    Prosecutions until recently. I say That consideration by Junior and Senior Counsel had to be given in respect of the appropriateness of arguing the
    within points by way of Judicial Review. I say that following consultation with the Applicant it was determined to bring a case by way of Judicial Review. I further say that the prosecution has not yet served the Indictment on the Applicant and the Applicant is entitled to await service of the Indictment prior to taking proceedings by way of Judicial Review. I say that the trial date is fixed for 13th November 2002 and in all likelihood will not be served with a
    copy.of the Indictment until the morning of the trial. "
    B. The Law.
    (I) 0.84 r.21 (1) of the Rules of the superior courts, provides:
    "An application for leave for Judicial Review shall be made promptly and in any event within three months from the date when grounds for the application were first arose, or six months where the relief sought is certiorari, unless the Court considers that there is good reason for extending the period within
    which the application shall be made."
    In G -v- Director of Public Prosecutions & Another [1994] 1IR the supreme court held that an Applicant applying for leave must on the facts supporting an entitlement for the relief, satisfy the Court (inter alia) that on those facts an arguable case can be made that the Applicant is entitled to relief and that the application has been made promptly and within the time limit provided for in 0. 84 r.21(1) and that the only effective remedy which the Applicant could obtain would be an Order by way of Judicial Review or if there is an alternative remedy that an application by way of Judicial Review is a more appropriate method of procedure. In that case, it was held the mere length of time between the offence and the trial could raise an inference of unfairness and matters were averred to that could amount to a risk of real prejudice. In that case, the intended trial sought to be prohibited was to deal with.offences/charges referable to a maximum period of 26 years and a minimum period of 12 years before the date upon which relief was sought. The apprehended prejudice rested on lack of specificity of the dates of the alleged offences, the injustice of a time related to events so long past in the time, the difficulty of finding witnesses to account for his whereabouts between 12 to 26 years earlier if he required to seek an alibi in respect of any of the charges, and that the Applicant did not have any diary or document which would assist in recording his whereabouts or activities so long after the events.
    In my judgment, the decision in G.(where seven young girls were involved) is clearly distinguishable from the instant case. Indeed in G's case, the application for leave was made within a fortnight of receipt of the Book of Evidence. Furthermore, in the judgment of Mrs. Justice Denham, upon which the Applicant's rely, the distinction is drawn at p.382 of the report between the burden of proof at 'the leave stage' and on the application for Judicial Review, thus:-
    "Ultimately on the application for Judicial Review, the Applicant has an Altogether heavier burden of proof to discharge."
    In considering the relative burdens of proof between 'the leave stage' and the application for Judicial Review, she did so in the light of her notation:
    "A trial in a court of law is not an exercise in vengeance but it is a trial in due course of law in the pursuit of justice on behalf of the community."
    Before considering the length of time to which the Court can and shall consider whether an application for Judicial Review has been made timeously, it is of importance to establish the date from which time runs. In B. -v- the Director of Public Prosecutions [19971 3IR 140 which concerned an Applicant charged with sexual offences against a family member spanning a period of 30 years, Budd J. noted that the illiterate alcoholic was initially facing 175 charges (the offence alleged indecent alleged and rape of three daughters.) The Applicant was returned for trial on 26th January 1994. On 1st March 1994, the Applicant's solicitor was furnished with an indictment containing 69 counts. On 16th may 1994 an ex parte application for 'leave to apply' was made to the High Court. In that case, Budd J. considered that in view of the practical difficulties in obtaining instructions in respect of the approximately 175 charges initially brought, that it was reasonable for the Applicant's advisors to await the selected counts in the indictment. The indictment was received on 1st March 1994 and Budd J. considered that the Applicant was within time in bringing his application. The judge went on to say at p.146 of the report:
    "Even if this was incorrect and the time ran from 26th January 1994, the date of the return for trial, all the circumstances, including the nature and seriousness of the charges, the Applicant's illiteracy and the appropriateness of the application for prohibition in the light of the long sequence in this case, I have no hesitation in extending the time..."
    Again, this case is wholly distinguishable from the instant case, not least the time period and the multiplicity of charges.
    In Patrick L. -v- The Director of Public Prosecutions & Another (unreported High Court 16th April 2002, Herbert J.) considered the grounds for making an
    application for Judicial Review arose on date when the Applicant was sent forward for trial by the Judge of the District Court (i.e. 13th may 1999 in that case) and not as alleged by the Respondent in that case, when the Applicant was charged with the particular offence (i.e. 2nd January 1999). L.'s case most closely resembles the instant case in that as Herbert J. noted that the latest date for the making of the ex parte application was 13th August 1999 but the application was not moved until 29th November 1999. In my judgment, time is to be calculated from the date of the decision of the Judge of the District Court to return the accused for trial.
    In the instant case, no fault for the delay is attributed to the Applicant in paragraph (8) of Mr. Lynham's affidavit. If there were an analogy between an ex parte application for leave to apply for Judicial Review and the application for Judicial Review, and a trial of a High court action and an appeal to the Supreme Court, which in my opinion there is not, the excuse/explanation given in paragraph 8 of Mr. Lynham's affidavit would not be sufficient in the light of Eire Continental Trading Co. -v- Clonmel Foods Ltd. 87 ILTR [19531 p.35 at 39 which determined that before the court would allow an extension of time, one of the conditions that had to be met by an applicant was:
    "it must be shown the existence of something like mistake and that mistake as to procedure and in particular the mistake of counsel or solicitor as to the meaning of the relevant rule was not sufficient."
    In the instant case, Mr. O'Brien SC in his admirably brief submissions referred to paragraph 8 of Mr. Lynham's affidavit and relied upon the decision in S .F -v- Ireland, The Attorney General and the Director of Public Prosecutions (unreported, Supreme court 22nd March 2002)
    Certain matters may be noted about this decision:
    (i) It was published by the Supreme Court over eleven weeks prior to the return for trial date (10th June 2002 and seven and a half months
    prior to the date of the ex parse application on 6th November 2002).
    (ii) It is directed to the making of the an ex parte application to the court and notes that "the Court is satisfied that the issue of delay may be an issue in the full hearing of the application".
    (iii) When matter was before O'Caoimh in the High Court, he refused leave in late December 2001, at that stage the trial had been listed for hearing in the criminal session of the Circuit Court beginning on 7th January 2002. By the date the matter came before the Supreme Court on 22nd March 2002, the Applicant's trial had been adjourned to October 2002 on the application of the Director of Public Prosecutions on the grounds that the Complainant was pregnant by a person other than the Applicant.
    In my judgment, the application for Judicial Review was out of time and has not been made promptly in this case. However, I take the same view as that of Geoghegan J. in Eastern Health Board -v- Farrell [2000] ILRM 446 that the issues in the instant case are far too important to permit the Judicial Review application to be determined on a time point only unless some serious prejudice has or is likely to be caused. Prejudice in this context is not confined to the parties but is to be considered in the context of a fair and efficient justice system to the whole community in and of the state and the public policy that proceedings relating to the public law domain should take place promptly except when good reason is furnished. If prosecutions under the Act of 1935 are to be proceeded in all cases, such as the three before the court, the case of S.F. hereinbefore referred to, and McDonagh -v- Ireland, the Attorney General and the Director of Public Prosecutions [2002/754 JR] referred to in the papers submitted to the Court, clearly the justice system both in Judicial Review in the High Court and the criminal justice system will fail to deliver a just and fair system, not only to the Applicants who are charged with offences under the Acts hereinbefore referred to, but to the complainants whose very vulnerability and legal disability as to age or otherwise the legislation was designed to protect, and to the community whose societal values have been enshrined in the Constitution and legislation.
    The Propriety of an Application for Judicial Review.
    Prior to embarking on a consideration of this topic, it must be recorded that each application was grounded not on the affidavit of any Applicant but in each case by his solicitor. In each case, the solicitor avers to his belief as to his instructions as to what the individual Applicant believed to be the age of the Complainant. Likewise, the Solicitor avers that he says and believes he is instructed by the individual Applicants that such individual Applicant's knowledge or alternatively his reasonable belief as to the age of the complainant would form part of his defence, if it were not for the apparent prohibition in law of such a defence. This method of supporting the Statement required to
    ground an application for Judicial Review effectively precludes the High court (and a Respondent even if given leave to cross-examine on such an affidavit unless the Applicant releases the deponent from the claim of privilege) from ascertaining the true facts upon which to base a reliable decision. An applicant who swears an affidavit in support of judicial review proceedings, even if the subject of an order permitting cross-examination on affidavit is not precluded from refusing to answer such questions as may possibly be in the opinion of the court, self-incriminatory. This muzzling of the Court in judicial review, which is a discretionary remedy, is further compounded by the several removes from probability (a fortiori any degree of certainty) suggested by the possibilities in an unspecified conditional future determination of facts.
    The parties agreed that the decided cases determinate of the guidance that should guide the Court are as follows:
    "1. The overwhelming responsibility reposed by the law and the Constitution on the trial judge is to ensure the fairness of the trial. An exceptionally important aspect of this function is to adjudicate on the evidence which should be placed before the jury."
    "The trial judge, he noted, had wide powers to rule on the admissibility of evidence and even in the exercise of his discretion to exclude evidence which was admissible" (Blanchfield -v- Hartnett [2002] 3 IR 207).
    2. The Circuit Court did not have jurisdiction to hear and determine an application to the effect that a statute enacted prior to the coming into force of the Constitution was inconsistent with the Constitution. (The People (Director of Public Prosecutions) -V M.S. [2003] 1 IR 606)
    3. Judicial review was an available remedy in principle which permitted challenges to decisions made in the course of a criminal trial, but only in the most exceptional circumstances. (DPP -V- Special Criminal Court [1999] 1 IR 60)
    The question that arises is whether the cases now before the court should be considered as exceptional in their circumstances. If every case in criminal law prior to trial in the Circuit Court raised a question of the constitutionality of each and/or every or any paragraph, subsection or section of criminal law statutes which have or has not been expressly and definitively been the subject of at least a decision of the High court, more probably a decision of the Supreme Court, is the remedy of judicial review to be available? The Applicants in these cases argue that a decision on constitutionality and statutory interpretation on stated, alleged or asserted but not on facts found by a trial judge is necessary so that (inter alia) they can make an informed decision as to whether to plead guilty to the charges and thus obtain the discount or benefit in the sentencing for an admission and apology, or to defend the charges in circumstances where they have court guidance as to what defences are open to them. The matter as to the appropriate time in the context of a criminal trial for the bringing of judicial review proceedings was considered by Carney J. in Director of Public Prosecutions -V- Special Criminal Court [19991 1 IR 60 at p.70 as follows:
    "It is unique in my experience that relief of this nature is being sought during the currency of a trial which remains at hearing. It cannot be emphasised strongly enough that an expedition to the judicial review court is not to be regarded as an option where an adverse ruling is encountered in the course of a criminal trial. I am undertaking this application for judicial review during the currency of the trial because a need has presented itself to urgently balance the hierarchy of constitutional rights included, in particular, the right to life. In the overwhelming majority of cases it would be appropriate that any question of judicial review be left over until after the conclusion of the trial ."
    [Emphasis added]
    The judgment of the supreme court (affirming Carney J.) delivered by O'Flaherty J, endorsed the views of the High Court Judge about the undesirability of people repairing to the High court for judicial review "in relation to criminal trials at any stage (and certainly not during their currency)."
    While accepting that the trials in the instant cases are in the Circuit Court, not the High Court, and have not yet begun, the effect of the present proceedings (excluding any additional time that may arise from any appeal) has been to defer a trial in respect of alleged offences in July/August 2001 for over a year and a half from the date set for trial. I ignore for present purposes the possibility that a jury, if the cases go to trial, will have to deal with the added complexities in terms of maturity and appearance of a female teenage complainant.
    In my judgment, this is not a case of such exceptional circumstances as to justify the proceedings in judicial review.
    Notwithstanding that determination, I am of opinion, now that matters have progressed to a hearing of an application for judicial review that "the requirements of justice" would be better met by resolving the issues of statutory interpretation and addressing constitutionality by leaving matters of fact to be found by a jury and then either a case stated by the circuit court or a different or new set of judicial review proceedings.
    Statutory Interpretation
    The legislative history of the offences arising for consideration in these cases begins with the provisions of the offences Against the Person Act, 1861 (24 & 25 Victoria chapter 100) which consolidated and amended the Statute Law applicable to and in Ireland. Sections 50 and 51 dealt with carnal knowledge of girls under 10 years of age and carnal knowledge of girls between the ages of l0 and 12 years, respectively. Section 52 of that Act deals with the penalties for offences under Sections 50 and 51. The Criminal Law Amendment Act, 1885 (48 & 49 Victoria chapter 69) was an act to make further provision for the protection of women and girls. Section 4 of the Act of 1885 was concerned with defilement of any girl under the age of 13 years of age and provides as follows:
    "4. Any person who-unlawfully and carnally knows any girl under the age of thirteen years shall be guilty of felony, and being convicted thereof shall be liable at the discretion of the court to be kept in penal servitude for life, or for any term not less than five years, or to be imprisoned for any term not exceeding two years, with or without hard labour.
    Any person who attempts to have unlawful carnal knowledge of any girl under the age of thirteen years shall be guilty of a misdemeanour, and
    being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years with or without hard labour."
    There is a proviso to the section that is not in point.
    Section 5 deals with the defilement of any girl between 13 and 16 years of age and provides as follows:
    "5. Any person who-
    (1) unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any girl being of or above the age of thirteen years and
    under the age of sixteen years; or
    (2) unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any female idiot or imbecile woman or girl under circumstances which do not amount to rape, but which prove that the offender knew at the time of the commission of the offence that the woman or girl was an idiot or imbecile,
    shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour.
    Provided that it shall be a sufficient defence to any charge under Subsection 1 of this section if it shall be made to appear to the court or jury before whom the charge shall be brought that the person so charged had reasonable cause to believe that the girl was of or above the age of sixteen years."
    The Criminal Law Amendment Act, 1912 (2 & 3 George v chapter 20) s. 4(2) and (3) dealt with the suppression of brothels. It is peripheral to the issues to be determined, but is included to keep the chronology intact.
    The Criminal Law Amendment Act, 1935 (No. 6 of 1935) provides in S. 1(1) as follows:
    "Any person who unlawfully and carnally knows any girl under the age of fifteen years shall be guilty of a felony , and shall be liable on conviction thereof
    to penal servitude for life or for any term not less than three years or to imprisonment for any term not exceeding two years."
    It is this provision that is challenged by both Applicants Coleman and Molloy as being unconstitutional.
    Subject to adjustments of age and penalty and, most notably, the removal of the Provisos (particularly in the defence of a Section 5 offence under the Act of 1885) and the segregation of the commission of the offence that the woman or girl was an idiot or imbecile, the following forms of approximate equivalence may be essayed:
    Act of 1885   Act of 1935
    S4 approximate equivalent S1(1)and(2)
    S5 approximate equivalent S2
    s5(2) approximate equivalent S4

    The extent of the repeals of the Act of 1885 and the Act of 1912 are more particularly set out in the schedule to the Act of 1935.
    In my opinion, the evolutionary development of the law and the adjustment of ages and age bands and the express removal of defences provided for in the legislation are not a rag bag, as Lord Bingham of Cornhill described the legislation of this topic in the United Kingdom in R -V- K [2002] 1 AC 462 at 467. The Contention of the Applicants in the instant case is that mens rea is an essential element of every criminal offence unless parliament in the Oireachtas expressly or by necessary implication provide to the contrary; that no express words were contained in Section 1(1) of the Act of 1935 which would exclude the need for the prosecution to prove absence of genuine belief by a defendant as to the age of an under-age complainant.
    Prior to considering the wide ranging submissions made to the court on statutory interpretation, I think it should be noted that the provision of the Act of 1935 have been considered by the Supreme Court. In Attorney General (Shaughnessy) -V- Ryan Cormack [1960] IR 181 on a case stated from the Circuit Court, it was held that consent is no defence to a charge of unlawful carnal knowledge contrary to Section 2(2) of the Act of 1935. In the course of his judgment, Maguire CJ stated:
    "This section is an extension of earlier acts. Notable amongst these was the Criminal Law Amendment Act of 1885. The section under consideration
    and similar provisions of earlier Acts were designed to protect young girls, not alone against lustful men, but against themselves."
    While Section 2(2) is not an issue in the present proceedings, what is stated by Maguire CJ is indicative of how the Act of 1935 is viewed by our Courts, i.e. as part of an evolutionary whole.
    In The People -V- Murray [1977] IR, a case that turned upon the absence of the knowledge of the accused of the fact that the victim was a member of the Garda Síochána, and so a murder could be considered a capital murder under the Criminal Justice Act 1964 (No. 5) Sections 1 and 4. That case was originally before the Special Criminal Court, and on the matter coming before the Court of Criminal Appeal, it came to the conclusion that the Act of 1964 did not create any new offence and, in the opinion of that court, the ingredients in the mens rea necessary for the offence of murder were identical with those necessary for capital murder and that the absence of knowledge of the fact that the murdered man was a member of the Garda Síochána was immaterial to the verdict. In the Supreme Court, Walsh J. considered the approach to be taken to the construction of penal statutes to be that:
    "They must be fairly construed according to the legislative intent as expressed in the enactment, and persons liable to a penalty should be entitled
    to the benefit of any genuine doubt or ambiguity as distinct from spurious doubts or ambiguities. Punishment should not be extended to cases Which
    are not clearly embraced in the statutory provisions. In my view, these are the correct approaches to the problem of construction of the statute under consideration."
    An important distinction has to be drawn between the offence of capital murder in Murray's case, which was determined to be a new statutory offence which required proof of mens rea in relation to each of its constituent elements and the offences with which the Applicants are charged, which are not new but in respect of which there have been amendments as to age, penalty and available forms of defence in succeeding but clearly interrelated statutes. Section 4 of the Act of 1964 was an offence of specific intent -- the offences of which the Applicants are charged are not such. In issue in Murray's case was the status of the victim; in the instant case, the issue is age. In Murray, Henchy J. at page 396 observed: "The extra elements required produce an offence which in substance and gravity is radically different from common law murder".
    In the present case, the Applicants raised the questions: Is the legislative intention as expressed in the Act of 1935 reconcilable to the imputation to the Oireachtas that a person can be guilty of an offence under section 1(1) of the Act of 1935 by the fortuitous circumstance that his victim is, unknown to him (the perpetrator), a person under the age provided for by statute? He may have made a full and proper enquiry and been given false information by a precocious female or even in the absence of enquiry he may have made an honest or reasonable mistake or may have had a mistaken belief as to the age of the victim or he may have acted recklessly. Are not such matters best left to a jury to find the true facts (if the totality of the facts -- specifically the evidence of the accused) on the basis of credible evidence to be left to a jury?
    The judgments in Murray's case considered at length the two different states of mind. Parke J. considered that the distinction between knowledge and intention was clearly drawn in the judgment of the majority of the Supreme Court of Victoria in R -V- Galvin (No.2) [1961] VR 740 which contains the following passage at p.749 of the report as follows:
    "Knowledge may be excellent evidence of intention but it is not an essential element in the crime. The mental element in our opinion is the intention
    to do the whole act which is prohibited."
    Later at page 426 of the report, Parke J. said
    "If, as I belief to be the case, the true test of guilt is the intention of the accused, the prosecution must prove that intention in the sense that it has for many centuries comprehended in the expression of mens rea. Mens rea may manifest itself in different ways and to different degrees in connection with the actus reus with which it must be associated. "Sometimes it is negligence, sometimes malice, sometimes guilty knowledge" ...per Cave J. in Chisholm -v- Doulton (1889)22 QBD 736 at 741. It also seems clear on the authorities that it can be reckless in the sense that it motivates conduct with a total disregard to the legal or other consequences which may follow. See In re Burrowes [1900] 2 IR 593; R -v- McLeod (1954) 111 Can.CC 106. Therefore, I share the view expressed by Mr:Justice Henchy, Mr. Justice Griffin and Mr. Justice Kenny that recklessness can constitute the necessary element of mens rea."
    Walsh J. took quite a different view about recklessness (see page 390 of the report) but it may have been case specific.
    It is common case that the observations in Murray's case of Walsh J. on the Act of 1935 are obiter dicta. Notwithstanding that the report indicates that counsel for both parties referred to sections of the Act of 1935 (including Section 1), no other judgment treats of the Act of 1935. In summary, Walsh J. remarked that the purpose of the exclusion was to protect young girls as much from themselves as from men, and indicated that the mens rea of capital murder could be distinguished from the mens rea in unlawful carnal knowledge on the basis that the former involved the occupation, whereas the latter involved the age of the partner, and the accused would have been aware he was dealing with a young woman. Walsh J. at page 382 stated:
    "Attention was drawn to the provisions of the criminal Law(Amendment) Act 1935, where in the case of unlawful carnal knowledge of a girl under the
    age of 17 or 15, it is not necessary to prove that the accused knew the girl was under the age whereas, by contrast, the offence of having unlawful carnal
    knowledge of a woman who is an imbecile or an idiot does require the prosecution to prove knowledge of that fact on the part of the accused."
    Walsh J. later addressed the specific submission in regard to the Act of 1935 as follows at page 383:
    "With regard to the submission made in relation to the requirements of the Criminal Law Amendment Act 1935, the position is somewhat different. There is obviously the policy of the Act of 1935 to protect young girls. The Oireachtas thought it necessary to ensure this by imposing upon a male person who undertakes to have carnal
    knowledge of a young person the risk of her turning out to be under the age of consent. It might well be impossible for the prosecution to prove in most cases that the accused had knowledge, and it is to be noted that the statute does not even envisage the accused successfully setting up a defence or lack of knowledge on his part even with the whole onus of proving that fact resting upon himself. The Oireachtas also apparently thought that an honest belief or an honest mistake with regard to age would not be consistent with the general policy of those statutory provisions, the object of which was to protect Young girls from themselves as much as from men.
    The essential difference between that class of case and the present case is that in those cases the defendant is dealing with a young woman because the Act makes no distinction between one class or category of girl and another when they are under age. so far as capital murder of a member of the Garda Síochána is concerned, it is the
    occupation of the victim which is the decisive matter. Before the offence of capital murder was created, it mattered not in the proof of the of the offence of
    murder where the victim was a member of the Garda Síochána or not. If the protection afforded by the Act of 1935 to girls under the age of 17 were to be
    confined only to girls of a particular occupation, then the position would be quite different, as obviously the intention of the Act would be quite different from that Act as it now stands. Therefore, I think there is no valid comparison to be made between the statutory provisions relating to capital murder and those relating to unlawful carnal knowledge of girls under the age of consent."
    From the foregoing, it may be noted that Walsh J. addressed some of the queries raised by the Applicants in the present case. Mindful of the frailty of seeking to make determinations in the absence of facts found on trial, all that can be noted in the present cases are the following "facts" from the statements made by the complainant and the Applicants:
    1. In Coleman's case -- the Complainant says she told him she was under 13 years old; he says she told him she was 16 years old.
    2. In Molloy's case -- the Complainant cannot remember telling him her age; he says Coleman told him the Complainant was 17 and he thought she was 17.
    3. In Grace's case -- he says the Complainant told him she was 17 years.
    It seems that there was an advertance as to the age of the complainant/victim and the recklessness (which involves foresight) of the possibility and the taking of the risk in my judgment is an intent that constitutes the necessary mens rea for the offences. The taking of risk in this context has been the subject of judicial consideration and determination since the case of R -V- Prince (1875) LR 2CCR 154, which held that a defendant charged under Section 55 of the offences Against the Person Act 1861, who bona fide believed that the girl was under 16 had no defence. In his judgment, Blackburn J. stated that the section in question was one of a series beginning at section 48 and ending With section 55, which he described as a "code" -- (perhaps not the most accurate description) for the protection of women. He drew attention to section 55 which provided that whosoever should "unlawfully and carnally know and abuse any girl under the age of 10 years shall be guilty of felony". whereas section 51 declared that whoever shall "unlawfully and carnally know and abuse any girl being above the age of 10 years and under the age of 12 years" should be guilty of a misdemeanour. He continued at page 171-172, as follows:
    "It seems impossible to suppose that the intention of the legislature in those two sections could have been to make the crime depend upon the knowledge of the prisoner of the girl's actual age. It would produce the monstrous result that a man who had carnal connection with a girl, in reality not quite 10 years old, but whom on reasonable grounds believed to be a little more than 10, was to escape altogether. He could not, in view of the statute, be convicted of the felony for he did not know her to be under 10. He could not be convicted of the misdemeanour because she was, in fact, not above the age of 10. It seems to us that the intention of the legislator was to punish those who had connection with young girls, though with their consent, unless the girl was in fact old enough to give a valid consent. The man who has connection with a child, relying on her consent, does it as his peril , if she is below the statutable age."
    This decision is an example of a court looking at the overall context of a particular statute, and refusing to apply the basic principle of the necessity of prosecution to prove express mens rea of an accused, by reason of the clear intention of Parliament as expressed in the Statute.
    A proper and convenient point of departure in considering the terms of a statute which appears to impose strict liability and seemingly omits the necessity of the prosecution to prove the mens rea of an accused is to be found in the five propositions set out by Lord Scarman giving the advice of the Privy Council in Gammon (Hong Kong) Limited -V- Attorney General of Hong Kong [1985] AC 1 at 114 (referred to in Maguire -v- Shannon Regional Fisheries Board [1994] 3 IR 580), which are as follows:
    "1. There is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence;
    2. The presumption is particularly strong where the offence is 'truly criminal' in character;
    3. The presumption applies to statutory offences and can be displaced only if this is clearly or by necessary implication the effect of the statute;
    4. The only situation which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an
    issue;
    5. Even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict
    liability will be effective to promote the objects of the statute by encouraging greater vigilance to protect the commission of the prohibited act"
    The effect of statutory changes in the common law, so far as construction is involved, was dealt with by Lord Reid in Black-Clawson International -V-
    Papierwerke Waldhof-Aschaffenberg AG [1975] AC 591 at 614 as follows:
    "There is a presumption which can be stated in various ways. One is that in the absence of any clear indication to the contrary, Parliament can be
    presumed not to have altered the common law further than was necessary to remedy the 'mischief'. Of course it may and quite. often does go further.
    But the principle is that if the enactment is ambiguous, that meaning which relates the scope of the Act to the mischief should be taken rather a different or wider meaning which the contemporary situation did not call for."
    In the present case, there is no ambiguity in the statute, which though it is clearly skewed, in a case of the age of the young girl, against the accused -- it is so provided as a matter of policy to effectively deal with the mischief of the statute it is designed to address. On the basis of the views of Maguire CJ. in Attorney General (Shaughnessy) -V- Ryan Cormack and Walsh J. in Murray's case as to the object, purpose or intendment of the Act which deals with an issue of social concern, to wit to protect young girls from themselves as much as from men, there is objective justification for a derogation of the necessity to prove mens rea in the manner contended for by the Applicant. In my judgment, it is not a disproportionate legislative response to the mischief being addressed, and is effective as a legislative response can be to promote the objects of the statute by encouraging or imposing greater vigilance to prevent the commission of the prohibited acts.
    In treating the legislative ancestry (to adopt the expression of Geoghegan J. in O'Brien -V- O'Halloran [2001] 1 IR 556 at 562) earlier in this judgment, it is clear that in expressly omitting and expressly repealing the defence that was at one time available
    under section 5 of the Act of 1885, the Oireachtas clearly addressed the issue of the balance to be struck between the general interest of the community and the protection of the rights of the individual in deliberately deleting a defence, and it is compellingly clear that it was no longer available as a defence. That a different balance on fact of different legislation in another jurisdiction may lead to a different result is not either persuasive or determinative of the jurisprudence of our Courts. Accordingly, though much indebted to counsel for their researches and arguments resting on the decisions in B (a minor) -V- Director of Public Prosecutions [2002] 2 AC 428 and R -V- K [2002] 1 AC, I decline to follow such decisions which, in B's case (which was followed in K's case) dealt with a section in the UK legislation which "created an entirely new criminal offence" per Lord Nicholls of Birkenhead in B's case at page 464 of the report. However attractive as a more liberal approach to the principle of reasonable and honest belief being available as a defence to the offences in the present cases may be, I am not disposed to echoing in equivalent terms the speech of Lord Millett in agreeing with his colleagues in the House of Lords:
    "I do so without reluctance but with some misgivings for I have little doubt that we shall be failing to give effect to the intention of Parliament and will
    reduce section 14 of the Sexual Offences Act, 1956 to incoherence." (R -v- K [2002] 1 AC 462 at 479 para 41)
    In my judgment, the necessary implication of the repeal of the defence provided for in section 5 of the Act of 1885 is that it was to be no longer available on the coming into effect of the Act of 1935. I do not read the provisions of section 14 of the Act of 1935 which provides, as follows:
    "14. It shall not be a defence to a charge of indecent assault upon a person under the age of fifteen years to prove that such person consented to
    the act alleged to constitute such indecent assault."
    as permitting such a defence for other offences under the Act of 1935. There was no such express omission of a defence to an offence under section 2(2); yet, the supreme court in Attorney General (Shaughnessy) -V- Ryan Cormack had no difficulty in coming to that view.
    The Constitutionality
    It is settled law that in a case involving findings of fact and constitutional issues, the latter shall not be embarked upon until there has been a determination or establishment of facts. As yet, there has been no trial in which facts have been determined. Therefore, what follows is deliberately brief and of necessity, rather a matter of opinion than judgment.
    The role of the court in assessing the constitutionality of an act of the Oireachtas in an enactment in which the legislature has engaged in a balancing function between the individual and the community, is not to impose its views of the correct or desirable balance in substitution for the views of the legislature, but to consider and determine objectively whether the balance set forth in the impugned legislation is contrary to reason and fairness such as to constitute an unjust attack on some individual's constitutional rights. (Tuohy -V- Courtney [1994] 3 IR 1). Article 40(1) does not require the state to treat all citizens equally in all circumstances. Rather, it allows for the provisions of measures which place individuals in different categories for the purposes of relevant legislation. classifications based on age could not of themselves be regarded as being constitutionally invalid. Nevertheless, they must be related to a legitimate objective and not arbitrary or irrational. (In the matter of the Employment Equality Bill, 1996 [1997] 2 IR 321).
    The offences in issue in the present proceedings have nothing to do with vicarious liability -- they are concerned with the stated actions of the Applicants -- actions prohibited by law for the protection of young girls from themselves and from lustful men.
    The question canvassed before the court was that by failure of the Act of 1935 to provide expressly for the obligation of the prosecution to prove mens rea, and that such was not to be implied unless provided for as in other criminal offences, and/or failing to provide that reasonable and/or honest belief -- i.e. a state of knowledge defence of an accused that the constitutionally guaranteed right to trial in due course of law had been interfered with and the limitations imposed by the Act of 1935 as it now stands are not reasonable, justifiable and appropriate to the circumstances. In my judgment, the societal values expressed in the terms of the Act of 1935 fall within the sphere of the Oireachtas. The Applicants can and will have a trial in due course of law, but the limitations as to the defences open to them have been curtailed in a reasonable and justifiable manner appropriate to the mischief which the statute seeks to address. Notwithstanding that the judgment in Shaughnessy deals with a case stated and it does not address the constitutionality of the Act of 1935, it is nonetheless a judgment of the Supreme Court. In other circumstances, I would be more persuaded by the dissenting judgment of Keane J. in Shannon Regional Fisheries Board -V- Cavan County Council [1996] 3 IR 267 (notwithstanding its subject matter) at page 285 and following and, in particular, of his inferential adoption of the categorisation of offences as outlined by Dickson J. in the Supreme Court of Canada in R -V- City of Sault St. Marie (1978) 85 DLR (3d). while of opinion that the offences of which the Applicants are charged are offences of strict liability, I am unable to perceive them as offences of absolute liability; yet, I feel constrained to make a determination consonant with the terms of the statutes and the underlying logic of the judgment in Shaughnessy and, accordingly, I am not prepared to make the declarations of unconstitutionality sought.
    The Act of 1935, being pre Constitution, enjoys the presumption that it will be interpreted in accordance with the Constitution, not that it enjoys the presumption of constitutionality. The fact that it was considered at amended in a later post Constitution statute does not confer the presumption of constitutionality upon it. Both the Acts of 1990 and 1993 enjoy the presumption of constitutionality.
    I am not prepared to make the declarations sought in respect of these acts for the same reason I have declined to make the declaration referable to the Act of 1935.
    END OF JUDGMENT
    Approved: Judge T.C. Smyth 13-04-04
    MS. MURPHY: My Lord, on behalf of my colleagues and myself, I would ask some time to consider the ramifications of
    your Lordship's judgment and to make any applications we may wish to make on ancillary matters -- perhaps, a week my Lord, would that be acceptable?
    MR. JUSTICE SMYTH: Well, you needn't be coy --I presume it's an application if you want to appeal and you want costs?
    MS. MURPHY: Both of those, my Lord. I would like an opportunity -- I mean, it's a serious matter, my Lord, and I would like an opportunity to ingest your Lordship's judgment and make a proper and appropriate application to your Lordship.
    JUDGE SMYTH: Well, what have you to say?
    MS. DEMPSEY: I appear on behalf of all the Respondents. I would apply for my costs in relation to the matter.
    MR. JUSTICE SMYTH: Well, do you want to say anything about the costs?
    MS. MURPHY: Well, clearly, I will be arguing to your Lordship that this a matter of public importance.
    MR. JUSTICE SMYTH: All right.
    MS. MURPHY: And there is an argument to be made, my Lord, and there is case law on it.
    MR. JUSTICE SMYTH: Well, if you want to make an argument, I am not going to prohibit you making it. This is not in any way a threat -- it is merely an indication and don't take me as bound by this - if you go on appeal, I won't be a bit upset. Let someone else resolve this thorny problem definitively.
    MS. MURPHY: Well, even that, my Lord, there are issues arising and just we need some time to consider...(INTERJECTION)
    MR. JUSTICE SMYTH: It may be that that is where it should go, but what I don't want to do is there are these three, there is the case of SF, there is the other case - there is at least five trials stuck somewhere. Now, SF is dealt with in part. There may be others ... (INTERJECTION)
    MS. MURPHY: I believe there are, my Lord.
    MR. JUSTICE SMYTH: My concern is I have no problem dealing with the costs depending on what way I have to deal with that, but I am anxious that if the matter is going on appeal, I will have this judgment available to you this week -- hopefully, even in an unapproved form within a day or two. I am anxious that the papers for this appeal, if they are going to be in an appeal, will be lodged in the Supreme Court before the end of term and that an application will be made to the Supreme Court to get priority listing for next term because your three people are under a cloud.
    MS. MURPHY: Yes.
    MR. JUSTICE SMYTH: This young person, I do not know whether they are getting therapy or anything else, but their life must be in a bit of a mess in some way or another, and the whole legal system will grind to a halt if every time there is a criminal trial someone decides pluck this rabbit out of the hat and it will hold up the train. So with those sort of general observations, and they are only observations, they are not determinative, I will put the matter back for one week to enable you to address such topics as you wish. But the time for appeal, if there is a time for appeal...(INTERJECTION)
    MS. MURPHY: Starts from today.
    MR. JUSTICE SMYTH: Starts from today.
    MS. MURPHY: So be it, my Lord.
    MR. JUSTICE SMYTH: I think we understand ourselves then.
    MS. MURPHY: Yes, my Lord.
    MS. DEMPSEY: I suppose, from the Respondents' point of view, our argument would be that if there is an appeal, that's an appeal matter in relation to costs and formally I would ask for my costs.
    MR. JUSTICE SMYTH: Well, I will wait until I hear fully what Ms. Murphy wants to say because she may have something to say to me that I have overlooked or something specific that I should address and I am not going to close anyone out from that.
    Your solicitor has agreed to look after the stenography funding service. I would ask them to be kind enough that as soon as I have given the indication that there is a document that can be made available to the other side, three copies would be made available so that they can get on with the business of advising their client.
    MS. DEMPSEY: Yes.
    MR. JUSTICE SMYTH: That seems to be the justice of the case.
    MS. MURPHY: I am obliged, my Lord.
    MS. DEMPSEY: And just to confirm that the time runs from today.
    MS. MURPHY: There is no difficulty about that my Lord.
    MR. JUSTICE SMYTH: Yes, if there is an appeal, it is running from 21 days from today's date.
    MS. MURPHY: So be it, my Lord.
    PROCEEDINGS WERE THEN CONCLUDED
    Approved: Judge T.C. Smyth 13-04-04


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