Appendix FF

Order 58, rule 15

No. 1

SUPREME COURT

Application for Leave and Notice of Appeal (Amended)

For Office use

Supreme Court record number of this appeal / 20/15
Subject matter for indexing
Leave is sought to appeal from
X / The Court of Appeal / The High Court

[Title and record number as per the High Court proceedings]

The Director of Public Prosecutions / V / James Maher
Date of filing
Name(s) of Applicant(s)/Appellant(s) / The Director of Public Prosecutions
Solicitors for Applicant(s)/Appellant(s) / The Chief Prosecution Solicitor
Name of Respondent(s) / James Maher
Respondent’s solicitors
Has any appeal (or application for leave to appeal) previously been lodged in the Supreme Court in respect of the proceedings?
Yes / X / No
If yes, give [Supreme Court] record number(s)
Are you applying for an extension of time to apply for leave to appeal? / Yes / X / No
If Yes, please explain why

1. Decision that it is sought to appeal

Name(s) of Judge(s) / Ryan J., Edwards J. and Sheehan J.
Date of order/ Judgment / Amended Order perfected 29th June 2015, Order perfected 18th March 2015; Judgment 10th February 2015

2. Applicant/Appellant Details

Where there are two or more applicants/appellants by or on whose behalf this notice is being filed please provide relevant details for each of the applicants/appellants

Appellant’s full name / Director of Public Prosecutions
Original status / Plaintiff / Defendant
X / Applicant / Respondent
X / Prosecutor / Notice Party
Petitioner
Solicitor
Name of firm / Chief Prosecution Solicitor
Email / ;
Address / Office of the Director of Public Prosecutions,
90 North King Street, Smithfield
Dublin 7. / Telephone no. / (01) 8588500
Document Exchange no. / DX 38
Postcode / Dublin 7 / Ref.
How would you prefer us to communicate with you?
X / Document Exchange / X / E-mail
Post / Other (please specify)
Counsel
Name / Sean Gillane
Email /
Address / 3 Arran Square,
Arran Quay,
Dublin 7 / Telephone no.
Document Exchange no.
Postcode
Counsel
Name / Anne-Marie Lawlor
Email /
Address / The Law Library,
The Criminal Courts of Justice,
Parkgate Street / Telephone no. / (087) 7971758
Document Exchange no.
Postcode / Dublin 8

If the Applicant / Appellant is not legally represented please complete the following

Current postal address
e-mail address
Telephone no.
How would you prefer us to communicate with you?
Document Exchange / E-mail
Post / Other (please specify)

3. Respondent Details

Where there are two or more respondents affected by this application for leave to appeal, please provide relevant details, where known, for each of those respondents

Respondent’s full name / James Maher
Original status / Plaintiff / Defendant
Applicant / X / Respondent
Prosecutor / Notice Party
Petitioner
Solicitor
Name of firm / John Casey & Company
Email /
Address / Bindon House,
Bindon Street,
Ennis,
Co. Clare / Telephone no. / (065) 6828159
Document Exchange no. / 25007 Ennis
Ref. / MAH15/2/JPC
Postcode
How would you prefer us to communicate with you?
Document Exchange / E-mail
Post / Other (please specify)
Counsel
Name / Andrew Sexton SC
Email /
Address / The Distillery Building
145-151 Church Street
Dublin 7 / Telephone no. / 8175913
Document Exchange no. / 816123
Postcode
Counsel
Name / Lorcan Connolly BL
Email /
Address / Suite One
“Ancona”
New Road
Ennis
Co.Clare / Telephone no. / 8172868
Document Exchange no. / 25026 Ennis
Postcode

If the Respondent is not legally represented please complete the following

Current postal address
e-mail address
Telephone no.
How would you prefer us to communicate with you?
Document Exchange / E-mail
Post / Other (please specify)

4. Information about the decision that it is sought to appeal

It is sought to appeal a part of the decision i.e. the determination by the Court that “the maximum penalty for indecent assault on a male person at the time in question in this case, namely, the years 1982-1984 was two years imprisonment” and secondly the final determination regarding the appropriate sentence. The determination by the Court of Appeal that the sentence was unduly lenient is not sought to be set aside.
The facts were not in dispute. The accused/respondent had pleaded guilty to 19 offences of indecent assault on males, committed between 1982 and 1984, at Ennis Circuit Court. At the sentencing hearing, the sentencing Judge was erroneously informed, by Counsel for the Director of Public Prosecutions that the maximum applicable sentence was 2 years in respect of each offence. The sentencing Judge imposed concurrent 2 year sentences on the accused/Respondent.
The Director of Public Prosecutions sought a review in the Court of Appeal pursuant to Section 2 of the Criminal Justice Act, 1993, on the grounds that the sentence was unduly lenient. The Director/Appellant submitted that, pursuant to the dicta of Laffoy J. in the case of D.P.P. v. S.M. (No 2.) [2007] 4 I.R. 369 the offence was one contrary to common law where the sentence could not exceed that applicable to the offence of an indecent assault on a female i.e. 10 years.
The Court of Appeal rejected that submission and determined that the maximum applicable sentence was one of two years.
The Court proceeded to determine that the sentences imposed were unduly lenient, in so far as the Court had imposed concurrent sentences where consecutive sentences were more appropriate. *The Court imposed a consecutive sentence of one yearon count 27 (on Bill CE 38/2011) to commence from the 10th February 2015.
The Appellant seeks to appeal the determination as to what the maximum sentence applicable was and secondly the sentence imposed. The Appellant does not seek to set aside the finding that the sentence imposed was unduly lenient.

* This marks the amended sentence

5. Reasons why the Supreme Court should grant leave to appeal

In the case of an application for leave to appeal to which Article 34.5.3° of the Constitution applies (i.e. where it is sought to appeal from the Court of Appeal)―
  1. The correct and lawful sentencing of persons convicted of, now historical, indecent assault offences is a matter of significance and it is in the interests of justice that such offenders are sentenced in accordance with law.
  2. The determination by the Court of Appeal has the effect of reducing the maximum sentence applicable to such offenders on an incorrect legal basis with the consequent effect on the public.
  3. The decision of the Court of Appeal is contrary to the applicable legislation and it is in the interests of justice that the issue be determined with finality.
  4. The decision has the potential to affect a significant number of cases involving offending behavior during the period of time affected by the decision.
  5. The decision of the Court of Appeal also has implications for the authority of the Garda Siochana to arrest and detain a suspect for the offence of indecent assault on a male allegedly committed between the 6 June 1981 and 17 January 1991.
  6. The Court of Appeal decision also raises a question about the constitutional propriety of the penalty for indecent assault on a female for the same period.

6. Ground(s) of appeal which will be relied on if leave to appeal is granted

  1. The decision of the Court of Appeal is incorrect in law in determining that the maximum penalty for indecent assault upon a male at the relevant time (1982/4) was one of two years.
  1. The sentencing provision contained in section 62 of the Offences Against the Person 1861 Act was not carried over by the Constitution of Ireland, 1937 in consequence of being inconsistent with the constitutional guarantee of equality (Article 40.1). The ratio of the decision in D.P.P. v. S.M. (No 2.) [2007] 4 I.R. 369 which reached the above conclusion was to render inoperative the maximum penalty for indecent assault on a male (10 years) and the decision did not affect the nature of the offence nor did the offence become unpunishable. The result in law is that the offence was capable of being punished according to the common law. The Court in S.M. did not identify what the common law punishment is but there is ample authority for the proposition that a sentencing court is ‘at large’ in dealing with common law offences. The Applicant in S.M. also secured a declaration that if convicted and sentenced in respect of indecent assault offences (for a time period prior to 1981) any sentence in excess of two years would breach his constitutional right to equality as that was the maximum sentence fixed by the Criminal Law Amendment Act 1935 in respect of the same offence committed by a female. The decision in S.M. did not ‘fix’ the penalty for indecent assault and expressly refused to do so. The logical consequence of S.M. is that, for offences committed between the 6 June 1981 and 17 January 1991, the sentencing Court is still at large but still subject to the requirements of Article 40 of the Constitution which means no accused should be sentenced for the offence of indecent assault on a male to a period of imprisonment higher than 10 years which is the sentence applicable to the offence of indecent assault on a female from that date.
  1. Article 40.1 of the Constitution.
Section 62 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
Section 2 of the Criminal Law (Rape) (Amendment) Act 1990
Section 37 of the Sex Offenders Act, 2001
Name of solicitor or (if counsel retained) counsel or applicant/appellant in person:
The Chief Prosecution Solicitor; Anne-Marie Lawlor BL

7. Other relevant information

Neutral citation of the judgment appealed against e.g.Court of Appeal [2015] IECA 1 or High Court [2009] IEHC 608

Court of Appeal (Criminal) [2015] IECA 43
References to Law Report in which any relevant judgment is reported

8. Order(s) sought

Set out the precise form of order(s) that will be sought from the Supreme Court if leave is granted and the appeal is successful:

An order setting aside the determination of the Court that the maximum sentences applicable for the offence of indecent assault during the applicable period is one of two years.
What order are you seeking if successful?
Order being appealed: / set aside / X / vary/substitute
Original order: / set aside / restore / vary/substitute
If a declaration of unconstitutionality is being sought please identify the specific provision(s) of the Act of the Oireachtas which it is claimed is/are repugnant to the Constitution
N/A
If a declaration of incompatibility with the European Convention on Human Rights is being sought please identify the specific statutory provision(s) or rule(s) of law which it is claimed is/are incompatible with the Convention
N/A
Are you asking the Supreme Court to:
depart from (or distinguish) one of its own decisions? / Yes / X / No
If Yes, please give details below:
make a reference to the Court of Justice of the European Union? / Yes / X / No
If Yes, please give details below:
Will you request a priority hearing? / X / Yes / No
If Yes, please give reasons below:
The decision by the Court of Appeal has potentially significant consequences in respect of those persons serving a sentence for the offence of indecent assault, committed at certain times, and those persons who are yet to be sentenced for the same offence. It also has implications for the authority of the Garda Siochana to arrest and detain a suspect for the offence of indecent assault on a male allegedly committed between the 6 June 1981 and 17 January 1991. It also raises a question about the constitutional propriety of the penalty for indecent assault on a female for the same period.

Signed: ______

Peter Mullan

Chief Prosecution Solicitor

For the Applicant

Please submit your completed form to:

The Office of the Registrar of the Supreme Court
The Four Courts
Inns Quay
Dublin

together with a certified copy of the Order and the Judgment in respect of which it is sought to appeal.

This notice is to be served within seven days after it has been lodged on all parties directly affected by the application for leave to appeal or appeal.