Supreme Court explains reasons for denying sex offender's release

The continued detention of a sex offender known as Mr A is valid because he did not challenge legislation under which he was convicted at the time of his trial, the Supreme Court ruled today.

The five-judge court explained in its detailed 52-page judgment why it granted an appeal by the state against the release of the 41-year-old, jailed for raping a 12-year-old girl.

The man, known only as Mr A, was freed by the High Court last month following the striking down by the Supreme Court of the law under which he was jailed.

The court struck down the law following an application by a man, known as Mr C, who was convicted of having sex with a 14-year-old girl when he was 18.

Citing the "general principle" rule, Chief Justice John L Murray said the state relied in good faith on the legislation at the time of Mr A’s conviction and the court’s decision must therefore be deemed lawful despite any future challenges.

“Mr A, like all persons who pleaded guilty to or was convicted of an offence contrary to the 1935 Act, had available a full range of remedies under the law.

“They could have sought to prohibit the prosecution on several grounds including that the section was inconsistent with the Constitution.

“Not having done so they were tried and either convicted or acquitted under due process of law. Once finality is reached in those circumstances, the general principle should apply.”

The judgment was delivered at the Supreme Court by Chief Justice Murray with Justice Susan Denham, Justice Adrian Hardiman, Justice Hugh Geoghegan and Justice Catherine McGuinness.

Mr C argued that section 1 (1) of the 1935 Criminal Law (Amendment) Act, which made it an offence to have sex with a girl under 15, was unconstitutional because it did not allow him to plead that he was mistaken about the age of the girl.

The Supreme Court ruled on May 23 that the law was unconstitutional in that it did not allow for any such defence.

Mr A, who had served 18 months of a three-year sentence for having sex with the girl after plying her with alcohol, subsequently applied to the High Court to be freed on the basis that the law under which he was convicted did not exist. The High Court granted his application.

The state subsequently appealed this ruling to the Supreme Court, which ruled on June 2 that Mr A was not denied his constitutional rights because he had not argued he was mistaken as to the age of the girl. The court ordered his immediate re-arrest.

The release of Mr A led to a number of other applications, brought under Article 40 of the Constitution, for release by men serving sentences under the 1935 Act. Those applications were adjourned pending the outcome of the Supreme Court appeal.

More than 50 cases of sex with underage girls are being examined with a view to prosecutions being brought under other laws dealing with sexual offences.