THE HIGH COURT
									1999 No. 2238 SS	

IN THE MATTER OF AN ENQUIRY UNDER ARTICLE 40.4.(ii) OF THE CONSTITUTION

BETWEEN

S. O'C.
									APPLICANT
AND
GOVERNOR OF CURRAGH PRISON
									RESPONDENT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
AND CIRCUIT COURT JUDGE HAUGH
									NOTICE PARTIES

Judgment of Mr. Justice Geoghegan delivered the 14th day of January, 2000.

	This is an enquiry into the legality of the Applicant's detention in Curragh Prison on foot of a sentence of three and a half years in prison imposed following a plea of guilty in Wicklow Circuit Court.
	In connection with this particular criminal proceeding, the Applicant has already been to both the High Court and the Supreme Court on two occasions unsuccessfully arguing different points.  On the last occasion in the Supreme Court, his Counsel made an argument which had not been made in the Court below and as a consequence the Supreme Court would not entertain it but did not preclude him from raising it afresh in the High Court.  That is the context in which the present Article 40 enquiry arises.   The Applicant's plea of guilty and consequent sentence related to an indecent assault on a female child under the age of 15 years.  The particular count read as follows:-

	"On a date unknown in the year 1989 indecently assault one (L.M.) a female child under the age of 15 years, contrary to the common law as provided for in Section 10 Criminal Law (Rape) Act, 1981."

	Section 28 of the Non-Fatal Offences Against the Person Act, 1997 which came into force on 19th May, 1997 provided (inter alia) for the abolition of the common law offence of "assault and battery".  Counsel for the Applicant argue that indecent assault was not a separate common law offence as such but was merely a special instance of the ordinary common law assault.  It was an assault attended with circumstances of indecency and attracted a special penalty.  It is therefore submitted that Section 28 of the 1997 Act abolished indecent assault, or as it is now known, sexual assault, and there is no saving provision in the Act preserving prosecutions which had already commenced for indecent or sexual assault prior to the passing of the Act.  The saving provisions in the Interpretation Act, 1937 are of no avail because they would apply only to the abolition of a statutory offence and not to the abolition of a common law offence.  In the context of common law assault, some of these questions have been considered in judgments of Barr J., McGuinness J., O'Higgins J. and O'Donovan J. to which I will be referring but these questions only arise for discussion if the Applicant is correct in his basic submission that the expression "assault and battery" in Section 28 of the 1997 Act includes indecent assault or sexual assault.  Counsel for the Respondent, Mr. Collins, argues strongly that it does not and I am in complete agreement with him.
	The origins of "indecent assault" have been discussed by O'Hanlon J. in his judgment in Doolan -v- D.P.P., [1992] 2 I.R. 399 but even more importantly by Egan J. in delivering the unanimous judgment of the Supreme Court in D.P.P. -v- E.F., (unreported judgment delivered 24th February, 1994).  It is clear from those judgments that the status of indecent assault before 1861 is none too clear but Egan J. expresses the firm view that the offence was a common law offence and that Section 52 of the Offences Against the Person Act, 1861, Section 6 of the Criminal Law (Amendment) Act, 1935, Section 10 of the Criminal Law (Rape) Act, 1981 and Section 2 of the Criminal Law (Rape) (Amendment) Act, 1990 were essentially sentencing provisions and that the offence itself remained a common law offence.  Quite apart from the fact that I would be bound by the later decision of the Supreme Court in D.P.P. -v- E.F., I do not think that that decision conflicts with the State (O) -v- O'Brien, [1971] I.R. 42.  In that last case O'Dalaigh C.J. was addressing his mind to the drafting of a count in an indictment.  His view appeared to be that if there was what he described as a "hybrid" offence, i.e., a common law offence with a statutory penalty, it was desirable for the purposes of drafting the indictment to treat the offence as a statutory offence.  I do not think that the decision goes further than that.  It is immaterial in my view whether there were two separate common law offences historically of assault and indecent assault.  In either event I am quite satisfied that in interpreting Section 28 of the Non-Fatal Offences Against the Person Act, 1997, I should take into account the fact that the expression "assault and battery" as a name of an offence would not in modern times be regarded as encompassing the offence of indecent assault.  That of course does not mean that the offence of indecent assault, or as it is now called sexual assault, might not often overlap with an offence of common assault.  It normally would.  But when one reads the various sections in the 1997 Act and understands the purpose of the Act and indeed the nature of the other offences mentioned in Section 28, it is perfectly obvious in my view that the Act is dealing with not only non-fatal offences but also non-sexual offences against the person. 
	In People (D.P.P.) -v- McDonagh, [1996] 2 I.L.R.M. 469 at 473, Costello P. in delivering the unanimous judgment of the Supreme Court makes it clear that a Court may as an aid to the construction of a statute or one of its provisions, consider its legislative history, a term which includes "pre-parliamentary material".  It is quite clear that the 1997 Act adopted many of the recommendations contained in the Law Reform Commission Report on Non-Fatal Offences Against the Person.  That report formed the backdrop to the legislation.  But it is equally clear that that report was not really dealing with sexual offences.  I have no doubt therefore that the offence of "indecent assault" whether under that name or its new name of "sexual assault" was not abolished by Section 28 of the 1997 Act.  This means that the Applicant is lawfully detained.  
	In case the matter goes further, I think that I should briefly comment on the further submissions made by the Applicant and which would be relevant if I was wrong in my basic findings.  It was agreed on both sides and it was my own view that I could not entertain any arguments based on the Interpretation (Amendment) Act, 1997 which was a piece of legislation designed to cure the alleged lacuna in the Non-Fatal Offences Against the Person Act, 1997 insofar as the last mentioned Act did not contain any saving of existing prosecutions in relation to common law offences thereby abolished.  The Interpretation (Amendment) Act, 1997 was declared invalid, having regard to the Constitution by the High Court (O'Donovan J.) in Grealis -v- D.P.P., 18th October, 1999.  The relevant part of that judgment related to common assault and the prosecution in respect of the alleged common assault was instituted after the passing of the Non-Fatal Offences Against the Person Act, 1997 but before the passing of the Interpretation (Amendment) Act, 1997.  McGuinness J. in a closely reasoned judgment in Quinlivan -v- The Governor of Portlaoise Prison, [1998] 2 I.R. 113 has held that on a constitutional interpretation of Section 28 of the Non-Fatal Offences Act, it could not have been intended that the Oireachtas would interfere with an existing prosecution and indeed one in which there had been a return for trial.  In Mullins -v- Harnett, [1998] 4 I.R. 426, O'Higgins J. went much further and held on foot of general common law rules of interpretation that Section 28 was not intended to put a stop to an existing prosecution.  The Special Criminal Court in a judgment delivered by Barr J. on 29th October, 1997 in The People -v- Kavanagh accepted an argument made to it that in the absence of a saving provision, the abolition of a common law offence must necessarily put a stop to the trial of that offence if it was alleged to have been committed before the Act.  McGuinness J., however, clearly had the benefit of extensive legal argument from both sides before her and the determining point of her judgment which related to legislative interference with existing proceedings does not appear to have been argued before the Special Criminal Court.
	While I am not bound by the judgments of the two Judges of the High Court sitting as Judges of the High Court, I must hold them in respect and if that expression is to have any meaning I should not dissent from their views unless a strong convincing argument was put forward to me based on authorities.  That has not been done in this case subject to this qualification.  Two learned articles by Professor Ivana Bacik and Dr. John P.M. White, S.C., published in 7 (1997) Irish Criminal Law Journal 48-58 and 8 (1998) Irish Criminal Law Journal 196-215 respectively have been produced.  The article by Professor Bacik is in the nature of a general review of the Non-Fatal Offences Against the Person Act, 1997 and I do not think that anything stated in it supports the Applicant's case.  By contrast, the article of Dr. White is strongly supportive of the Applicant's case.  In what I can only describe as tendentious and aggressive tones, he stridently attacks the judgments of McGuinness J. and O'Higgins J. and strongly supports the judgment of the Special Criminal Court delivered by Barr J.  He relies on American authorities to support the proposition that once a particular offence has been abolished all existing or intended or possible prosecutions in relation to it die with it.  To a much lesser extent, he relies on English authorities including a case of R. -v- Swann, (1849) 4 Cox CC108 where according to him it was held that where a statute creating an offence is repealed, a person cannot afterwards be charged for an offence within it committed whilst it was in operation, even though the repealing statute re-enacts the penalty clauses of the statute repealed.  But it is not clear whether that would cover a prosecution which had already commenced.  None of these American or English authorities have been opened to me and it would be quite wrong to query the judgments of my two colleagues on the basis of an academic article.  Counsel for the Applicant, Dr. Forde, fairly conceded that he would not really expect me not to follow the two other decisions of the High Court.  On the basis of the material before me, I at any rate have no basis for doing so.  I am firmly of the view that none of this argument arises because Section 28 did not apply to the offence of indecent assault or sexual assault.