DPP v K

• Jurisdiction: Ireland
• Judge: O'Donnell J.,Charleton J.,O'Malley J.
• Judgment Date: 04 March 2020
• Neutral Citation: [2020] IESCDET 35
• Date: 04 March 2020
• Court: Supreme Court
• Docket Number: S:AP:IE:2019:000214 2017/CC0012

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

J K

APPLICANT

[2020] IESCDET 35

O'Donnell J.

Charleton J.

O'Malley J.

S:AP:IE:2019:000214

2018/194

2017/CC0012

An Chúirt Uachtarach

THE SUPREME COURT

DETERMINATION

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court declines to grant leave to the Applicant to appeal to this Court from the Court of Appeal.

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 18 July 2019

DATE OF ORDER: 18 July 2019

DATE OF PERFECTION OF ORDER: 20 November 2019

THE APPLICATION FOR LEAVE TO APPEAL 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. Another count in respect of rape on 21 January 2015 resulted in a not guilty verdict.

2 Essentially, this case was a clash of accounts. On those accounts V was clear that there was no question of consent on her part. JK, on the other hand claimed a willing engagement. In addition, so far as can be seen from the papers, there was an immediate complaint by V to her mother and in addition there was bleeding, which could be regarded, depending on the jury's view of fact, as corroboration.

3 The applicant complains about the recital of the issue of recklessness in the charge to the jury of the trial judge, Butler J. This, however, was not a recklessness case: V made it clear there was no consent and that there was the communication of refusal, JK claimed a willing pursuit of mutual pleasure. There was nothing to have required a recklessness direction to the jury. But, since it was in the statutory definition, the trial judge included it.

4 That charge included a slight misquotation from a text book and it was corrected. While the Court of Appeal dealt with the issue, really this mental element was better excluded from the case.

5 Even were it relevant, the mental element in rape has been analysed by this Court in The People (DPP) v O'R [2016] 3 IR 322

6 The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33 ^rd Amendment have now been...