Supporting Documents:

THE SUPREME COURT

DETERMINATION

RESULT: The Court does grant leave to the applicant to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

1. Jurisdiction

This determination relates to an application by Gerard Brown (the Applicant) who was the appellant in the underlying appeal to the Court of Appeal, for leave to appeal under Article 34.5.3° of the Constitution from the judgments of the Court of Appeal (Sheehan J., Mahon J., Edwards J.), being a judgment delivered by Mahon J. on the 21st December, 2016 (in relation to the appeal in respect of conviction) and the 9th February, 2017 in respect of the appeal against sentence and the order of the Court of Appeal made on the 9th February, 2017 on foot of those judgments (perfected on the 9th day of March, 2017).

As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the Thirty Third Amendment, it is necessary in order for this Court to grant leave, that it be established that the decision sought to be appealed against either involves a matter of general public importance, or that it is otherwise in the interests of justice necessary that there be an appeal to this Court.

The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted any issue in respect of which leave is granted will in due course be disposed of in the substantive decision of the Court.

2. The proceedings

The history of the proceedings is outlined in s. 4 of the Applicant's application for leave, which is published on the Courts Service website along with this determination. That account is not disputed in the respondent's notice filed on behalf of the Director of Public Prosecutions (the Director), which is also published on the Courts Service website along with this determination.

The following is a summary of the history leading to the decision of the Court of Appeal which it is sought to appeal:

(a) The Applicant was tried at Portlaoise Circuit Criminal Court on the 28th October, 2015 in respect of one count on the indictment namely "that on the 20/05/2014 at Midlands Prison, Dublin Road Portlaoise in the County of Laois, in the said district of Portlaoise he did assault one Stephen Cooper causing him harm, contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997". Following the trial he was found guilty by unanimous verdict on the 6th November, 2015 of the offence of causing harm and was sentenced to three years imprisonment consecutive to his current sentence.

(b) Stephen Cooper, the injured party, previously a member of An Garda Síochána, gave evidence that he was a prisoner in the Midlands Prison on the 20th May, 2014, having been convicted of offences contrary to s. 15 of the Misuse of Drugs Act, 1977 (as amended), fraud, and perverting the course of justice.

(c) The injured party (who was on protection in prison) gave evidence that on the morning of the 20th May, 2015 he was being escorted to the prison gym by a prison officer at approximately 10am. The injured party gave evidence that he was attacked by the Applicant on the 20th May, 2015 in the Midlands Prison whereby the Applicant struck him two to three times on the top of the head causing him an injury.

The injured party expressly denied that he asked the Applicant to attack him and denied that he consented to the assault.

In his evidence the Applicant accepted that he was a prisoner with a number of previous convictions and that he hit the injured party on the top of the head with a mug in a sock. He gave evidence that he had a cordial rapport with the injured party and spoke to the injured party regularly through the bars on their respective landings. He gave evidence that the injured party informed him that he was refused a transfer to Shelton Abbey open prison. The Applicant gave evidence that he said to the injured party that the only way you are going to get out of this place is "if there is a serious threat on you, a serious threat on your life or if you are seriously assaulted".

The Applicant gave evidence that he spoke to the injured party and alleged that the injured party suggested that he pretend to attack him when he was going to the gym. The Applicant gave evidence that the injured party stated: "Don't hold back" in terms of the assault and "just make sure there is blood". In return the injured party stated that he would give the Applicant sensitive documentation and information and €1,000 in cash.

At the close of the prosecution case, counsel for the Applicant made an application which urged the trial judge to allow the defence of consent go to the jury, arguing that insofar as s. 3 of the Non-Fatal Offences Against the Person Act 1997 builds on s. 2 of the said Act, therefore the criteria under s. 2 must be satisfied in order for the crime of "assault causing harm" to be established pursuant to s. 3. Counsel for the DPP urged that s. 3 of the 1997 Act is a standalone offence in which the element of consent was not relevant and to read otherwise was contrary to public policy.

The learned trial judge refused to allow the defence of consent go to the jury. He ruled that s. 2 and s. 3 of the 1997 Non-Fatal Offences Against the Person Act are standalone offences. In addition he ruled that if the definition of assault in s. 2 was to be carried over to s. 3 this would have been clearly provided for in the statute. He further ruled that the injured party could not have consented to the imposition of an injury on him by the Applicant on the grounds of public policy and furthermore that on the grounds of public policy the courts could not permit the defence of consent to apply as to do so would enforce the purported agreement between the Applicant and the injured party. Finally he indicated that he was satisfied that the term "assault" as used in s. 3 of the 1997 Act derives from the definition which it enjoyed at the time that the 1997 Act was enacted.

The Applicant appealed against his conviction to the Court of Appeal on four grounds.

3. The order appealed against

The order appealed against which was made on the 9th February, 2017 and perfected on the 9th March, 2017 made in consequence of the judgments of the Court of Appeal dismissed the Applicant's appeal and ruled as follows:

"(a) The Court ruled that proof of an absence of consent was not a necessary ingredient in a s. 3 assault. The Court ruled that consensual violence was permissible in certain limited circumstances.

(b) The Court ruled that s. 2 and s. 3 of the Non-Fatal Offences Against the Person Act 1997 should be treated as separate and distinct offences.

(c) The Court ruled that an assault causing harm committed in circumstances where the purpose and/or intention of the assault is itself unlawful and/or contrary to public policy can never be rendered lawful on the basis that the victim invited the assault or consented to being assaulted.

(d) The Court ruled that the learned trial judge was correct as was his charge to the jury to the effect that the very serious attack on the injured party by the appellant was not excusable on the basis that it had been consented to, if indeed there was any such consent.

(e) The Applicant subsequently appealed against the severity of his sentence and his appeal in this regard was also dismissed."

The appeal concerns an issue of general public importance as it concerns the statutory interpretation of s. 2 and s. 3 of the Non-Fatal Offences Against the Person Act 1997 and the offences of "assault" and "assault causing harm" and whether the concept of consent as provided for in s. 2(1)(a)(b) of the said Act is removed from s. 3(1) of the same Act.

That there is an issue of general public importance regarding the interpretation and extent of "public policy" as an aid in the interpretation of a penal statute. The Court of Appeal excluded the element of consent in its interpretation of the necessary ingredients for an assault within s. 3 of the said Act notwithstanding that "assault" for the purpose of s. 2 of the said Act requires proof that consent was not present. In this regard the public policy said to inform the legislation was viewed by the Court of Appeal as necessitating or calling for such an interpretation.

The appeal also concerns the issue of the appropriate use of parliamentary debate in the interpretation of statutes particularly in the light of exceptions (rare as they may be) suggested as possible in the existing jurisprudence of Crilly v. T & J Farrington Limited [2001] 3 I.R. 251. It is contended that the public policy formulated or discussed as intended to be expressed through the statute was explicitly and unambiguously declared in the Oireachtas as diametrically opposite that which was assumed to pertain by the trial court and the Court of Appeal. The Court of Appeal declined to seek submissions on the issue of parliamentary debate and relied upon a judicial assumption of its view as to public policy.

Further, it was contented that the appeal also raised an issue of public importance as to the extent to which the courts are entitled to interpret a penal statute to such a degree that it is the trial judge's subjective view of what is contrary to public policy in a modern society.

The appeal also raised an issue of public importance to the extent that the Court of Appeal has commented on the confusion created by the drafting of the relevant sections when it stated:

"The drafting of these related sections, (to the extent that they both refer to assault), creates confusion as is evident from this and other cases and might have been the subject of more careful drafting. It is nevertheless appropriate that the offences described in ss. 2 and 3, respectively, should be treated as separate and distinct offences, as indeed should the offence described in s. 4."

5. The Director's notice

The Director does not dispute the information set forth by the Applicant in s. 4 of the application for leave. Further the Director does not oppose the application for leave to appeal in this case.

6. Discussion

As is clear from a range of determinations made by this Court since the Thirty Third Amendment of the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court, or another court from which the Court of Appeal has appellate jurisdiction prescribed by law has simply been in error in some material respect, the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. Rather the text of the Constitution now in place makes it clear that an appeal to this Court, whether directly from the High Court under Article 34.5.4° or from the Court of Appeal under Article 34.5.3°, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it otherwise is in the interests of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interests of justice to permit an appeal to this Court simply because it is said that the lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy for any error made by the High Court. Likewise, a party which has had the opportunity to have the decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more, the interests of justice will not require a further review on appeal to this Court.

It is against that background that the question of whether leave to appeal should be granted. This Court is satisfied that the Applicant herein has raised a number of issues of general public importance in respect of the following issues:

(1) The interpretation of s. 2 and s. 3 of the Non-Fatal Offences Against the Person Act 1997.

(2) Whether the concept of consent as provided for in s. 2(1)(a)(b) of the Non-Fatal Offences Against the Person Act 1997 is removed from s. 3(1) of the same Act.

(3) The interpretation and scope of "assault" as defined in s. 2 of the Non-Fatal Offences Against the Person Act 1997.

(4) Whether s. 2 and s. 3 of the Non-Fatal Offences Against the Person Act 1997 are separate or distinct offences.

(5) To what extent can the courts dictate public policy contrary to the express intentions of the legislature.

7. Conclusion

The Court therefore grants leave to appeal under Article 34.5.3° of the Constitution.

AND IT IS HEREBY SO ORDERED ACCORDINGLY.