The Supreme Court would dismiss an appeal by C. on the interpretation of section 1(1) of the Criminal Law (Amendment) Act 1935, which criminalised unlawful carnal knowledge of a girl under 15, Justice Fennelly said in a judgment delivered on 12 July 2005.
C. was charged in the Circuit Criminal Court with a number of offences involving one alleged victim, who was 13 at the relevant times. C. sought to rely on evidence that the girl had told him, and that he reasonably believed, she was over 17. The High Court had granted leave to seek declarations concerning a defence of mistake as to age and whether knowledge or belief that the complainant was at least 15 could be a defence.
Justice Fennelly said judicial review was generally not an appropriate route for an accused person to obtain advance rulings on legal issues arising in a pending criminal trial. The trial court was the proper forum, subject to appeal. He nevertheless considered the substantive issue in exceptional circumstances, because the High Court judge had already ruled and the Circuit Court might feel bound by that ruling.
The judgment reviewed the presumption that criminal offences require a guilty mind unless legislation clearly excludes that requirement. Justice Fennelly said the historical treatment of age-based sexual offences and the wording and legislative history of the 1935 Act made it “compellingly clear” that the Oireachtas had excluded a reasonable-mistake defence for the offence under section 1(1). He noted that the earlier legislation had expressly provided such a defence for some offences but not the more serious offence involving girls below the lower age threshold; the 1935 Act removed that defence where it had previously been available.
Justice Fennelly said he would dismiss the appeal insofar as it concerned the interpretation of section 1(1). He added that it might be appropriate to give further consideration to the section’s constitutionality, with further submissions and argument. The judgment does not state that the constitutional issue was finally determined, nor does it report the outcome of C.’s criminal trial.