DPP v J.K.

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Edwards
Judgment Date18 July 2019
Neutral Citation[2019] IECA 200
Docket NumberRecord No: 194/2018
Date18 July 2019

[2019] IECA 200

THE COURT OF APPEAL

Edwards J.

Edwards J.

McGovern J.

McCarthy J.

Record No: 194/2018

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
V
J. K.
Appellant

Conviction – Rape – Recklessness – Appellant seeking to appeal against conviction – Whether the trial judge erred in law in not explaining the issue of recklessness correctly to the jury when the issue was specifically raised as a question when they were deliberating

Facts: The appellant was charged and tried before the Central Criminal Court with two counts of rape, allegedly committed against the complainant, a female friend of his sister, and which were said to have taken place on the 21st January, 2015 and on the 7th March, 2015, respectively. These were charged as counts 1 and 2 on the relevant indictment. On the 21st of February 2018, following 5 hours and 8 minutes of deliberation, the appellant was found not guilty in respect of count 1, but guilty in respect of count 2, by a 10-2 majority decision of the jury. On the 11th June, 2018 the appellant was sentenced to 6 years’ imprisonment on count 2 with the final year suspended on condition that he enter a bond in the sum of €100 to keep the peace and be of good behaviour for one year. This sentence was back-dated to the 1st January, 2017. The appellant was also added to the sex offenders register. The appellant appealed to the Court of Appeal against his conviction on the basis that: (i) the trial judge erred in law in not explaining the issue of recklessness correctly to the jury when the issue was specifically raised as a question when they were deliberating; and (ii) the trial judge erred in the manner in which he dealt with the corroboration warning.

Held by the Court that it was not disposed to uphold either of the two grounds of appeal that were advanced. In circumstances where reckless indifference simply did not arise on the evidence that the jury had heard, and in circumstances where it was not being relied upon by either party, the Court did not consider that there was any appreciable risk that the jury were materially misled. The Court found that the corroboration warning given in this case was by no means a model warning, and that it could have been better contextualised, but the Court was satisfied that it was nevertheless adequate in the circumstances of this case.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 18th of July, 2019 by Mr. Justice Edwards
Introduction
1

The appellant in this case was charged and tried before the Central Criminal Court with two counts of rape, allegedly committed against the complainant, a female friend of his sister, and which were said to have taken place on the 21st January, 2015 and on the 7th March, 2015, respectively. These were charged as counts no.'s 1 and 2 on the relevant indictment.

2

On the 21st of February 2018, following 5 hours and 8 minutes of deliberation, the appellant was found not guilty in respect of count no. 1, but guilty in respect of count no. 2, by a 10-2 majority decision of the jury.

3

The particulars of count no. 1 had involved an allegation that on the 21st of January 2015, at a piece of waste ground in Clondalkin, the appellant had sexual intercourse with the complainant, C.K., who at the time did not consent to it, and that at the time he knew that she did not consent to the sexual intercourse, or was reckless as to whether she did or did not consent to it.

4

Count no. 2 involved an allegation that on the 7th of March 2015, at a specified address in Lucan, the appellant had sexual intercourse with the complainant, C.K., who at the time did not consent to it, and that at the time he knew that she did not consent to the sexual intercourse, or was reckless as to whether she did or did not consent to it.

5

On the 11th of June 2018 the appellant was sentenced to 6 years” imprisonment on count no 2 with the final year suspended on condition that he enter a bond in the sum of €100 to keep the peace and be of good behavior for one year. This sentence was back-dated to 1st of January 2017. The appellant was also added to the sex offenders register.

6

The appellant now appeals against both his conviction and sentence.

Background Facts
7

The complainant, born on the 23rd of June 1997, was the best friend of the appellant's sister, S. K. They grew up together and lived nearby, and the complainant knew the appellant through this relationship. As the appellant has been acquitted of count no. 1, it is only proposed to describe in brief the evidence given at trial in relation to count no 2.

8

The complainant gave evidence that on the evening of the 7th March, 2015, her mother rang her with the request that she ‘ come home before half ten’. When she got close to home, the appellant emerged from nearby and remarked ‘ you're not going in yet are you?’, to which she replied ‘ Yeah, my mam wants me to go in’. The appellant persisted, asking ‘ do you want to come on a walk with me?’, to which she answered ‘ No, I have to go in’. The complainant claimed that the appellant then grabbed her arm and started walking with her, moving his hand onto her hips and beckoning her to continue walking with him. The complainant stated that she feared for her life. She claimed that they entered a certain park, at which point the appellant relinquished his grip. The complainant told him, ‘ I'm not doing anything’, ‘ I have a boyfriend’, hoping this would deter him. However, the appellant simply said ‘ Ah sure nobody has to know’, before grabbing her by the arm and leading her to a rock, adjacent to an Astroturf surfaced area, pulling down her bottoms and saying ‘ I'm just doing a quickie’. The appellant then bent her over, inserted his penis in her vagina and had sexual intercourse with her, during which, she said, he had a hold of her hair bun while going back and forward. She said it felt like ‘ when someone was reefing the hair out of you.’

9

The complainant said she was crying and felt sick to her stomach, and was fearful that the appellant would beat her. She claimed that her body went into shock. She could not remember what bottoms she was wearing but did remember her underwear was branded “ Hello Kitty”.

10

Both parties then pulled up their bottoms and began walking back. During this time the appellant grabbed the complainant's face and said ‘ I've to stay away from you’. She entered her mother's house and informed her of the events straight away. She was in shock and traumatised, was getting sick, and had vaginal bleeding, for which she got a sanitary pad. Her mother telephoned the Gardaí and they then went to a named Garda Station to make a complaint. Thereafter she went to a particular Sexual Assault Treatment Unit. The complainant stated that she was raped by the appellant and that had not consented on either occasion.

11

Under cross-examination it was put to the complainant that she had had consensual sexual intercourse with the appellant on the night of October 31st, 2014, and that no further contact occurred as the appellant was involved with another woman at that time, thus he was not interested in pursuing their relationship further. She agreed that when he said at one point ‘ Oh, come on, walk down here’, she had said ‘ Okay, I will’. However, she had been adamant that this was in circumstances where he had grabbed her arm.

12

The complainant admitted that she had seen the appellant on the night of October 31st, 2014, and that they had been text messaging around this period, but insisted that no sexual contact had occurred, and that she was with her mother at the time.

13

It was put to the complainant that kissing occurred on the lips during the March incident. She stated that the appellant kissed her on the lips and she froze. It was put to her that prior to the insertion of his penis, the appellant digitally penetrated her vagina – this was accepted by the complainant, stating that she forgot to mention this in her evidence. She stated that he grabbed her face after sex and said ‘ I have to stay away from you’, and that she had a bruise on her face. It was put to her that she had been examined by a doctor, who detected nothing abnormal. The complainant denied a suggestion that she had told a Counsellor that the appellant had used a knife to threaten her into submission. She agreed that she saw a Counsellor at the Rape Crisis Centre but denied telling her that a knife had been used. She denied telling the appellant that she had been fighting with her mother about coming home before she wished to. She stated that she went straight home. She agreed that her mother rang her asking her to go home and she told her mother she was on her way home. She denied that the sexual intercourse had been consensual. She denied coming up with a story and repeated that she was raped.

14

The complainant agreed under further cross examination that she had seen a psychiatrist and that she had a history of hallucinations. She confirmed that she saw shadows of the devil in a mirror. She agreed that she told her counsellor of demons and voices. She said she was highly depressed at the time and she was taking Prozac, that was in 2013 and 2014. She was asked about certain texts on her phone and counsel read from what was a series of deleted texts taken from her phone regarding sexual activity with the sender, R. M. She agreed that those texts indicated that there had been something physical between them as suggested to her but she denied she was making up a story about the appellant because she didn't want her boyfriend to know. Asked about contraception, she said she was on the injection that lasts for about three months. She accepted that she had thought that DNA evidence, i.e., the presence of the appellant's DNA on swabs taken from her, were proof that he had raped her. It was put...

To continue reading

Request your trial
1 cases
  • DPP v K
    • Ireland
    • Supreme Court
    • 4 March 2020
    ...MADE ON 4 December 2019 AND WAS IN TIME REASONS GIVEN 1 This determination concerns a decision of the Court of Appeal of 18 July 2019; [2019] IECA 200. This dismissed an appeal by the applicant J K for his conviction by a jury on 21 February 2018 for rape of the victim V on 7 March 2015. An......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT