A High Court judge has refused to grant bail to a man who is serving a sentence for the unlawful carnal knowledge of a girl aged between 15 and 17 years.
Joseph Dodd had sought bail pending the outcome of his legal challenge to another section of the 1935 law on statutory rape.
In refusing bail, Mr Justice Paul Gilligan said Dodd had the opportunity at all times to challenge the relevant law both before and during his prosecution but only chose to do so after his conviction and sentence.
Dodd was jailed for 18 months at Galway Circuit Criminal Court last March after pleading guilty to the unlawful carnal knowledge of a girl aged between 15 and 17 years contrary to section 2.1 of the Criminal Law Amendment Act 1935.
At the time of the offence, he was aged 27 and his victim was 15.
He sought bail claiming his case had been "forced on" when the Director of Public Prosecutions opposed an application by his lawyers to have it adjourned pending the Supreme Court judgment in the CC case last May which struck down section 1(1) of the 1935 law.
Section 1(1) had made it an automatic crime to have sex with a girl aged under 15 years.
Dodd, who is from Galway and is serving a sentence at Castlerea Prison, is seeking to have section 2(1) of the same 1935 Act declared unconstitutional.
That provision outlaws sex with a girl aged between 15 and 17 years.
Dodd contends the exclusion of the defence of reasonable mistake as to the age of the victim violated his constitutional rights.
Mr Justice Gilligan said Dodd and his legal advisers could have brought the challenge prior to the conclusion of his trial and could have sought to restrain his prosecution.
It was at all material times going to be the situation that section 2(1) of the 1935 Act remained in force and was valid unless otherwise determined by law.
The criminal prosecution was over and the decision was final, he said. No proceedings had been instituted to set aside Dodd's conviction and sentence on the basis of some fundamental injustice or unfairness.
It appeared, he added, to be quite clear from the recent judgment of the Supreme Court in the Mr A case that even if section 2 of the 1935 Act was declared unconstitutional, Dodd would still have to satisfy the court that there was some fundamental unfairness in his case which required that his conviction be overturned.