The High Court has refused J.Q.’s application for judicial review seeking to quash his 2004 conviction and set aside the four-year sentence imposed in 2005. O’Neill J. held that a later declaration that the law underlying the conviction was unconstitutional did not reopen the concluded criminal proceedings, and that the circumstances advanced by J.Q. did not qualify for an exception to that principle.
J.Q. had pleaded guilty to unlawful carnal knowledge under section 1(1) of the Criminal Law (Amendment) Act 1935. The judgment records that the complainant was 14 and J.Q. was 23 at the time of the sexual intercourse. J.Q. admitted intercourse but said he believed, mistakenly, that she was 17. He was convicted on his plea in July 2004 and sentenced to four years’ imprisonment in December 2005, backdated to his arrest in June 2005.
In May 2006, the Supreme Court declared section 1(1) unconstitutional in separate proceedings. J.Q. then sought judicial review, initially arguing that the declaration meant the offence was unknown to law and his conviction should be quashed. He later asked to add a claim that he had pleaded guilty on legal advice that his belief about the complainant’s age was no defence, and that he had therefore been denied the opportunity to contest that issue.
O’Neill J. permitted the amendment. He found that the claim was a new ground, not implicit in the original application, but accepted that the legal significance of the facts became apparent after the Supreme Court’s later judgment in A. v. The Governor of Arbour Hill Prison. The amendment application was within the six-month time limit, and the judge found it had been brought promptly given the novel issues and the court vacation.
On the substance, the judge applied the principle set out in A.: a final criminal decision made under a statute then in force generally remains lawful after that statute is later declared unconstitutional, unless rare and exceptional circumstances involving fundamental unfairness amounting to a denial of justice are shown. The judge concluded that an asserted honest but mistaken belief about age was not exceptional in this type of case. He also noted that J.Q. had no complaint about the conduct of his criminal proceedings and that the conviction was in accordance with the law as understood at the time.
The court refused the judicial review application. It did not quash the conviction or sentence, declare the sentence void, or order a change to J.Q.’s criminal record.