The High Court will rule today on a bid for freedom by a 41-year-old man who is serving a three-year sentence for the statutory rape of a 12-year-old girl.
The man had admitted having sex with the girl after buying her four Bacardi Breezers and two vodkas. He was jailed in November 2004.
The case of the man, whom Ms Justice Mary Laffoy directed may only be identified as Mr A, is the first of seven such cases expected to come back before the courts after the Supreme Court last week struck down as unconstitutional the 1935 law on statutory rape.
The man's bid for release, in proceedings brought under Article 40 of the Constitution, was strongly resisted by the State yesterday. Gerard Hogan SC argued the man was in lawful detention in Arbour Hill Prison, that the case was of "critical importance", and he urged the judge not to free the man.
It would be appalling if those who plead guilty to very serious offences involving preteen children were to get a "windfall bonus" from the Supreme Court judgment, he said.
Counsel also asked the court to hear evidence from a garda about the nature of the man's offence but the judge ruled such evidence was not relevant to the decision she had to make.
Mr A was jailed for three years at the Dublin Circuit Criminal Court in 2004, after pleading guilty to unlawful carnal knowledge of an underage girl on May 18th, 2002.
The Dublin Circuit Criminal Court heard he had sex with the 12-year-old girl after buying her four Bacardi Breezers and two vodkas. The victim, a friend of the man's daughter, went to bed around midnight and woke in the early hours of the morning to get sick. It was then Mr A had full sexual intercourse with her.
Conor Devally SC, for Mr A, argued that in light of the Supreme Court ruling in another case last Tuesday, his client was unlawfully detained and must be released.
The Supreme Court had unanimously declared as unconstitutional the law under which any man is automatically guilty of a crime if he has sex with a girl under 15.
The court made its decision on several grounds, including the failure to allow the defence that a genuine mistake had been made about a girl's age.
The challenge to the 1935 law was brought by a man who was 18 at the time he was charged with the statutory rape of a 15-year-old girl.
Mr Devally said his side was not seeking to imply that there has been any wrongdoing by the machinery of the State in relation to Mr A's detention. This was a simple legal case: Mr A was held on foot of a warrant which was based on a non-existent law.
It is easy to scare the population that every person on such an offence will be let out of prison "willy nilly" or they might be able to claim compensation, counsel said. That was probably not so.
While he understood the emotion behind opposing his client's application for release, he was surprised by the arguments put forward by the State, counsel said. There was no continuing legal authority to hold his client and the detention was based on a fundamental defect.
He was not saying the conviction or sentence was invalid and was not reviewing the actions of the DPP in bringing the charge or the action of the trial judge. There was simply no longer a lawful mechanism to hold Mr A.
The realities of the Supreme Court decision were that the DPP had not sought to proceed with statutory rape indictments and trials had been stayed by consent since last summer pending last week's judgment, Mr Devally said.
Mr Devally said Mr A was not seeking to be proclaimed innocent - he accepted he knew his victim was under age; what he was seeking was his liberty.
Opposing the application, Mr Hogan said it was "wholly misconceived". Never before in legal history had an application come in this way, he said.
Mr A was being detained, not pursuant to the law, but under his conviction. He had pleaded guilty and received a three-year sentence.
The victim was 12 at the time of the offence and Mr A was 38. Mr A had made an admission that he knew the girl's age and could not have raised the defence that was raised in the Supreme Court judgment of a mistake in relation to age.
When Ms Justice Laffoy remarked that Mr A is being detained for something that is not the law today, and asked how she would get over that, Mr Hogan said "the large stone" on the road that obstructs Mr A's application is his conviction.
