The Gazette 1993

GAZETTE

JULY/AUGUST 1993

cent assault without creating new offences by express terms, such as s.52 of the 1861 Act or s.6 of the 1935 Act, both of which had been replaced by s. 10 of the 1981 Act (and which in turn was repealed by s.2 of the 1990 Act) were not.in any respect defective, but were merely setting penalties for differ- ent forms of common law assaults; and therefore the indictment in the instant case disclosed an offence known to the law. The State (Foley) v Carroll [1980] IR 150 fol- lowed; (3) while it was unnecessary in the instant case to include assault in Count No.2 on the indictment, since if a person is found not guilty of indecent assault a con- viction for assault may be made, it was permissible to include alternative charges in an indictment, provided that convictions were not entered on both counts in breach of the prohibition in s.14 of the 1937 Act if the charges arose out of the same episode. R. v Bostock (1893) 17. Cox CC 700 ap- proved; (4) the prosecution could also seek to have Count No.2 removed from the in- dictment, notwithstanding the guilty plea entered by the applicant, since in any event the applicant was entitled to change his plea. [Note: s.2 of the 1990 Act, which replaces 'indecent assault' with 'sexual as- sault', came into effect after the event con- cerned in the instant case. S.2 expressly provides that sexual assault is a felony.] Rogers v Director of Public Prosections High Court 2 March 1992 CRIMINAL LAW - PROCEDURE - EVIDENCE - UNLAW- FUL TAKING OF CAR - PROSECUTION RETURNING CAR TO OWNER AFTER FORENSIC EXAMINATION - DEFENCE SEEKING TO HAVE CAR FORENSICALLY EXAMINED - DELAY OF OVER TWO MONTHS - WHETHER TRIAL OF ACCUSED SHOULD PROCEED - WHETHER FAIR PROCEDURES OBSERVED - Constitu- tion, Article 38.5 During a pursuit of a stolen car in August 1991, Gardai in the chasing patrol car stated that they recognised the driver of the car as the applicant. After the patrol car had been rammed and the stolen car abandoned, the applicant was arrested in the subsequent chase and was charged on the same date with the unlawful taking of a motor vehicle. The book of evidence was served on the applicant in October 1991, the District Court having declined jurisdiction in September 1991.1n late October 1991, the sol icitor for the applicant enquired if the car involved in the chase was available for forensic exami- nation. The Gardai replied that the car had been returned to its owner shortly after the August incident. The applicant applied on judicial review for an order of prohibition in respect of his trial on the ground that, as he was deprived of the opportunity to have the car forensically examined, his trial would not be in due course of law and that fair procedures would not be observed. It emerged in the judicial review proceedings that the car had been forensically examined by the Gardai prior to its return to the owner and that no fingerprints had been found in the car. HELD by O'Hanlon J dismissing the appl ication for an order of prohibition: where stolen property becomes the subject matter of criminal proceedings, any forensic ex- amination (whether by the prosecution or defence) should take place within a reason- able time, having regard to all the circum- stances, so that the property can then be returned as expeditiously as possible to its

true owner; where, as in the instant case, a forensic examination is carried out promptly by the Gardai and no mention is made of a forensic examination by the defence until over 2 months after charges had been brought, there was no breach of fair proce- dures such as would justify the court in halting the prosecution pending against the applicant. Murphy v Director of Public Prosections [1989] ILRM 71 distinguished. O'Brien v Patwell and D.P.P. High Court 9 September 1992 CRIMINAL LAW - PROCEDURE - INDICTMENT - WHETHER BAD - CHARGES OF UNLAWFUL CARNAL KNOWLEDGE OF A GIRL UNDER 15 YEARS AND OF UNLAWFUL CARNAL KNOWLEDGE OF A FEMALE AGAINST HER WILL INCLUDED - WHETHER PROS- ECUTION TO BE PUT TO ITS ELECTION - DISTRICT COURT JUDGE ADDING COUNT TO INDICTMENT - WHETHER ONLY HAVING JURISDICTION TO SUB- STITUTE COUNT - Interpretation Act 1937, s.14 - Crimi- nal Procedure Act 1967, s.8 The applicant was sent forward for trial in the Central Criminal Court on four counts: indecent assault contrary to common law and s.10 of the Criminal Law (Rape) Act 1981; unlawful carnal knowledge of a girl under 15 years of age, contrary to s.1 of the Criminal Law Amendment Act 1935; un- lawful carnal knowledge of a named female forcibly and against her will contrary to common law; and buggery contrary to s.61 of the Offences against the Person Act 1861. The fourth count was added by the respond- ent District Court Judge under s.8 of the 1967 Act at the conclusion of the prelimi- nary examination. The applicant sought ju- dicial review of the order sending him for- ward for trial on the grounds that: (i) it was not permissible to send him forward on the second and third counts since they consti- tuted the same offences and thus breached s.14 of the 1937 Act, and that the prosecu- tion should be put to its election; and (ii) the respondent Judge had no jurisdiction under s.8 of the 1967 Act to add a charge unless this was in substitution foranexistingcharge. HELD by O'Hanlon J dismissing the appli- cation: (1) the second and third counts on the indictment did not constitute 'the same offence' within s.14 of the 1937 Act, since consent was not a defence to the charge under s.1 of the 1935 Act, whereas it was a defence to the third count, and thus the indictment was not bad for including both counts; and in any event the prohibition in s.14ofthe1937 Act was directed at pun i sh- ment twice-over for a single incident. Dicta in The People v Dermodyl 1956] IR 307 and The People v Coughlan (1968) 1 Frewen 325 explained; (2) the power conferred by s.8 of the 1967 Act was not confined by its terms to the substitution of one count for another, and the respondent Judge was thus entitled to add a new count to the indict- ment if satisfied that evidential material put before him justified him in doing so; and a similar power vested in the Director of Pub- lic Prosecutions by the 1967 Act had been held not to be repugnant to the Constitution. O'Shea v Director of Public Prosecutions [1989] ILRM 309; [1988] IR 655 discussed. W. v W. Supreme Court 16 December 1992 FAMILY LAW - RECOGNITION OF FOREIGN DIVORCES - DOMICILE - WHETHER DEPENDENT DOMICILE RULE SURVIVED ENACTMENT OF CONSTITUTION - 3

WHETHER COMMON LAW RULE OF RECOGNITION OF FOREIGN DIVORCES REQUIRES MODIFICATION - Domicile and Recognition of Foreign Divorces Act 1986, s.5 - Judicial Separation and Family Law Reform Act 1989 - Constitution, Articles 40.1, 50 The plaintiff, the wife, and the defendant, the husband, were married in Ireland in 1973. The parties separated and the plain- tiff instituted proceedings in the Circuit Court under the 1989 Act. The defendant argued that the parties were not, in fact, validly married on the ground thatthe plain- tiff's previous marriage was still subsisting. The plaintiff had lived in England in the 1960s, and in 1966 had married an English- man domiciled in England. The plaintiff separated from this man in 1969 and re- turned to Ireland in 1971. She met the defendant at the end of 1971, and when they decided to marry, the plaintiff insti- tuted divorce proceedings in England against her then husband. These proceedings were not defended and a decree absolute was granted in October 1972. The defendant in the instant case argued that since in 1972 the plaintiff was domiciled in Ireland, the common law rules for recognition of for- eign divorces (which were predicated on recognition of divorces obtained only in countries in which both spouses were domi- ciled) precluded the Irish courts from rec- ognising the 1972 divorce. On case stated HELD by the Supreme Court (Finlay CJ, Hederman, O'Flaherty, Egan and Blayney JJ): (1) the dependent domicile rule, by which a wife took the domicile of her husband on marriage, was inconsistent with Article 40.1 of the Constitution since it resulted in an unjustified discrimination against married women as against her hus- band and as against single women; and the rule had not been carried over into Irish law in 1937 under Article 50. Dicta in Quinn's Supermarket Ltd v Attorney General [ 1972] IR 1 applied. C.M. v T.M. [1991 ] ILRM 268 approved; (2) (per Finlay CJ, O'Flaherty, Egan and Blayney JJ; Hederman J dissent- ing) the common law rule for the recogni- tion of foreign divorces, which was limited to recognising divorces obtained in States where both spouses were domiciled, had been developed at a ti me when the depend- ent domicile rule was accepted as correct, and thus was in fact a rule in which the courts recognised divorces obtained where the husband was domiciled; and since the recognition rules had for many years been entirely judge : made, the courts were enti- tled to modify those rules; and having re- gard to the demise of the dependent domi- cile rule, the court was entitled to modify the recognition rule to one in which the court would recognise a divorce obtained in a jurisdiction in which either of the spouses was domiciled; and this modifica- tion was consistent with the similar modifi- cation effected by s.5 of the 1986 Act in respect of foreign divorces obtained after the 1986 Act came into effect in October 1986. Per Hederman J (dissenting): since the Oireachtas had expressly provided that the changes to the recognition rules con- tained in the 1986 Act applied prospec- tively only, the court would be legislating by altering the existing common law rules of recognition. Le Mesurier v Le Mesurier [1895] AC 517 and Indyka v Indyka [1969] AC 33 discussed.