The Gazette 1993

457 / 462

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been replaced by s. 10 of the 1981 Act (and
which in turn was repealed by s.2 of the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 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.