‘Windfall bonus’ as Mr A walks away

THE release of a 41-year- old man, who has already served 18 months of a three-year sentence imposed for statutory rape, was ordered by the High Court yesterday.

His is the first of seven cases expected to come back to the courts after the Supreme Court struck down the law on statutory rape.

Ms Justice Mary Laffoy yesterday directed the release of the man — who can only be known as Mr A — and said she had no jurisdiction to put a stay on the order.

In her judgment, Ms Justice Laffoy said the fact that the Supreme Court declaration rendered the applicant’s detention unlawful may have the appearance of a “windfall bonus” for the applicant.

“Be that as it may, in my view his detention was rendered unlawful by the declaration and cannot continue,” she said.

The 41-year-old man was jailed for three years at the Dublin Circuit Criminal Court on November 2, 2004. He pleaded guilty to the unlawful carnal knowledge of a 12-year-old girl on May 18, 2003.

At the time, the Dublin Circuit Criminal Court heard he had sex with the girl after buying her four Bacardi Breezers and two vodkas.

The victim went to bed around midnight and woke up in the early hours of the morning to get sick. Mr A then had full sexual intercourse with her.

The application came after the Supreme Court ruling that unanimously declared as unconstitutional the law under which any man is automatically guilty of a crime if he has sex with a girl under 15 years of age.

The court made its decision on several grounds, including the failure to allow the defence that a genuine mistake had been made about a girl’s age.

Ms Justice Laffoy said it is of significance that in the recent case the Supreme Court declared Section 1(1) of the Criminal law (Amendment) Act, 1935 to be inconsistent with the Constitution in toto.

She said she had to decide whether she was satisfied that the applicant was being detained at Arbour Hill Prison in accordance with the law having regard to the circumstances that now prevail.

The Supreme Court, she said, having struck down Section 1(1) in its entirety, that section ceased to have legislative existence in 1937.

“Thereafter, there was no statutory offence of unlawful carnal knowledge of a girl under 15 years of age to which there attached the punishment prescribed by the Act of 1935.”

The next question she said she had to consider is what are the consequences of the demise of the section long before the applicant was charged with the offence of which he was convicted and detained.

Within the narrow confines of an enquiry under Article 40, the judge said as a matter of law she has only to consider whether one specific consequence now prevails, “whether as of today his detention is not in accordance with law”.

In this case, she said, Mr A is detained on foot of a conviction for an action which was accepted by the applicant and by the People through the relevant State authorities including the DPP, to be an offence on June 15, 2004.

She said we now know by reason of the declaration of the Supreme Court last week, it was not an offence either when the action occurred or when the applicant was convicted or sentenced.

“The defect here could not be more basic. It is that the purported conviction relates to something which is not an offence in criminal law. In my view, the conviction is a nullity, as is the sentence and the detention is not in accordance with law,” she said.

In the light of the Supreme Court declaration she said the conviction is a nullity and the warrant is bad on its face.

Counsel for the State, Paul Anthony McDermott BL, asked for a stay on the release order to allow the State to bring an appeal to the Supreme Court.

Ms Justice Laffoy said she had not jurisdiction to put a stay on the release order.

Afterwards, Mr A refused to comment as he walked from the courtroom but then said: “I regret what I did.”