K.M. v DPP

• Jurisdiction: Ireland
• Judgment Date: 01 January 1994
• Date: 01 January 1994
• Docket Number: [1993 No. 55 J.R.]
• Court: High Court

K.M. v. Director of Public Prosecutions

K.M. (a minor suing by his father and next friend N.M.)

Applicant

and

The Director of Public Prosecutions

Respondent

[1993 No. 55 J.R.]

High Court

Judicial review - Prohibition - Criminal trial - Fair procedures - Applicant indicted on charges of sexual assault - Prosecution giving evidence of penetration - Prosecution having conclusive medical evidence that no penetration occurred - Jury discharged - Whether applicant might be re-tried - Whether applicant could insist upon being charged with rape - Whether applicant would properly be re-tried on lesser charge - Whether evidence of prosecutrix unreliable - Book of evidence - Whether High Court on application for prohibition should consider whether book of evidence supported charges.

The applicant who was 13 years old was indicted on four counts of sexual assault contrary to the Criminal Law (Rape) (Amendment) Act, 1990, two against S.W. at a time when she was 8 years old and two against J.W., who was 11 years old, to which he pleaded not guilty.

At the conclusion of the evidence of J.W., the first witness called by the prosecution, the trial judge discharged the jury on the grounds that while J.W. had given evidence that she had been raped, the prosecution had conclusive medical evidence that no penetration had taken place.

The applicant sought by way of judicial review to prohibit any further prosecution of the alleged offences against either girl on the grounds:—

• (a) that since the evidence of J.W. supported a charge of rape the applicant should be charged with rape, for to charge him with the lesser offences would prejudice him in his defence;

• (b) that it would be a denial of fair procedures to require the applicant to face a further trial or trials at which the only conclusion would be the discharge or direction of the jury;

• (c) that the evidence of J.W., being at variance with uncontrovertible medical evidence that no penetration had occurred, was unsatisfactory and unreliable;

• (d) that an examination of the book of evidence relied upon to support the charges of offences against S.W. would show that the applicant had no case to answer, and

• (e) that there was no evidence in the book of evidence, whether in respect of the offences alleged against J.W. or against S.W., to rebut the presumption of innocence against the applicant by reason of his age.

Held by Morris J., in prohibiting the further prosecution of the applicant in respect of the offences alleged against J.W. only, 1, that the respondent, in exercising his discretion, was not obliged to charge the applicant with a more serious charge than that with which he was charged.

Director of Public Prosecutions v. Rock (Unreported, Supreme Court, 18th March, 1993) applied. The State (Foley) v. Carroll [1980] I.R. 150 considered.

2. That it could not be said that the only consequence of a further trial would be a discharge of the jury.

Director of Public Prosecutions v. Rock (Unreported, Supreme Court, 18th March, 1993) applied.

3. That a court's basic function was to administer justice and a court acted without jurisdiction if an accused person was deprived of any basic rights at a criminal trial.

The State (Healy) v. Donoghue [1976] I.R. 325 and The State (O'Callaghan) v. O'hUadhaigh [1977] I.R. 42 applied.

4. That as there was evidence that the only event which could constitute the alleged offence did not occur, a reasonable jury could not accept beyond reasonable doubt that a sexual assault occurred and accordingly, it would be a denial of fair procedures to retry the applicant for the offences alleged against J.W.

5. That, in relation to the counts in respect of S.W. it would be a usurpation of the powers and functions of the District Court Judge who had returned the accused for trial if the court were to reconsider the book of evidence.

6. That, to rebut the presumption of innocence arising by reason of the applicant's age, there must be evidence to establish beyond reasonable doubt that he knew that the conduct was seriously wrong and not merely mischievious.

• R. v. Gorrie (1919) 83 J.P. 136 approved.

7. In the circumstances, there was evidence upon which a jury could conclude that the presumption should be rebutted and consequently, an order of prohibition relating to the counts in respect of S.W. should be refused.

Cases mentioned in this report:—

Clune v. District Justice Clifford [1981] I.L.R.M. 17.

Director of Public Prosecutions v. Rock (Unreported, Supreme Court, 18th March, 1993).

R. v. Gorrie (1919) 83 J.P. 136.

The People (Attorney General) v. Mills (1955) Frewen 123.

The State (Foley) v. Carroll [1980] I.R. 150.

The State (Healy) v. Donoghue [1976] I.R. 325.

The State (O'Callaghan) v. O'hUadhaigh [1977] I.R. 42.

Judicial review.

The facts are summarised in the headnote and are set out in the judgment of Morris J., post.

On the 22nd February, 1993, the High Court (Geoghegan J.) granted leave to the applicant to apply for an order of injunction by way of judicial review. The application was heard by the High Court (Morris J.) on the 16th and 17th June, 1993.

Cur. adv. vult.

Morris J.

The facts

The applicant was born on the 18th September, 1977, and was accordingly at the time of the alleged offences with which he is charged and now awaits trial on indictment before the Dublin Circuit Criminal Court, thirteen years of age.

The indictment against him contains four counts. Counts 1 and 2 allege sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990, on S.W. and counts 3 and 4 allege sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990, on J.W. The alleged offences against S.W. are alleged to have...