By Ruth Mercer
A Supreme Court judgment has concluded that two men awaiting trial in Dublin should be permitted to rely on mistake about a complainant's age as a defence to sexual offence charges.
C.C. faced four charges of unlawful carnal knowledge of a girl under 15 arising from alleged incidents in July and August 2001. The complainant was about 13 years and ten or eleven months old. C.C. admitted consensual intercourse in a Garda statement but said he believed she was over 15.
P.G., who faced two sexual assault charges involving the same complainant, also sought to argue reasonable mistake.
Ms Justice Denham examined whether the relevant law excluded what lawyers call mens rea — the requirement for a guilty state of mind in relation to an element of an offence.
For C.C., she held that section 1(1) of the Criminal Law (Amendment) Act 1935 did not expressly exclude mens rea and did not do so by necessary implication. She rejected the long-standing reliance on the 1875 English case R v Prince as a sound basis for treating the offence as one of strict liability.
Denham J therefore concluded that reasonable belief as to the complainant's age could provide C.C. with a defence. That ruling did not determine whether he actually held such a belief: that remained a factual issue for trial.
P.G.'s position involved the common-law offence of sexual assault. The judge distinguished between consent and mistake. Legislation expressly provided that a person under 15's consent was no defence, but she held that this did not eliminate the separate requirement of a guilty state of mind on the accused's part.
She would therefore allow P.G. to advance a reasonable-mistake defence as well.
Neither man's guilt was determined. The judgment concerned only what defences should be legally available at their forthcoming trials.