Irish Court of Appeal

THE COURT OF APPEAL

Neutral Citation: [2025] IECA 72

Court of Appeal Record No. 128/22

McCarthy J

Burns J

MacGrath J

 

BETWEEN/

THE PEOPLE (AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS)

 

RESPONDENT

 

-AND-

 

E O'R

APPELLANT

 

 

JUDGMENT of the Court delivered on the 7th day of February 2025 by Mr Justice Patrick McCarthy

 

1.       This is an appeal against conviction. E O'R, the appellant herein, was, on the 23rd of February 2022, after a trial at the Central Criminal Court sitting at Croke Park, convicted by unanimous jury verdict of eight counts of rape contrary to Common Law and section 2 of the Criminal Law (Rape) Act 1981, five counts of indecent assault contrary to Common Law, and twelve counts of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 on Bill No: CCDP0080/2018. The appellant was acquitted on two counts of sexual assault on the same indictment. On the 30th of May 2022, the appellant was sentenced to concurrent terms of imprisonment on the various counts (which we have outlined below) which amounted to a total cumulative sentence of twelve years' imprisonment, the final year whereof is suspended for a period of three years on terms. The sentence imposed on each count was as follows:

          Count (No.)                               Offence                                   Sentence

1.                                                Sexual assault                          2 years

2 & 3.                                          Indecent assault                      2 years

4 & 5.                                          Indecent assault                      4 years

11, 12, 15, 16, 17 & 18.              Rape                                        7 years

19, 21 & 22.                                Sexual assault                          2 years and 6 months

24.                                              Rape                                        7 years

25.                                              Rape                                        12 years

26, 27 & 28.                                Sexual assault                          3 years

30.                                              Indecent assault                      4 years

31, 32 & 33.                                Sexual assault                          2 years and 6 months

36.                                              Sexual assault                          3 years

37.                                              Sexual assault                          4 years

2.       There were five complainants, all of whom were close family relations of the appellant. The trial judge refused an application to sever the indictment which had been made on a particular basis (we deal with this in more detail below). The first ground of appeal is that the trial judge erred by refusing this application (the 'severance issue'). The second ground of appeal advanced is that the trial judge erred in law by failing to withdraw certain counts from the jury on the basis of the doctrine of doli incapax because the appellant was between 10 and 14 years of age at the time of the alleged criminal acts (the 'doli incapax issue'). The third ground of appeal is that the trial judge erred by refusing to discharge the jury after certain evidence, alleged to be prejudicial, was given in its presence (the 'discharge issue'). We think it useful for the purposes of our discussion of the severance and doli incapax issues to outline which counts relate to each complainant and highlight those counts where consideration of the doli incapax issue is necessary. These are as follows:

               Complainant 1 ('MM')

               Relevant count(s): count 1 (sexual assault).

               The offending was alleged to have occurred in 1999 or 2000 when MM was 25–27 years of age, and the appellant 22–24 years of age.

 

               Complainant 2 ('AR')

               Relevant count(s): counts 2 to 5 inclusive (indecent assault).

               The offending was alleged to have occurred on dates between 1986 and 1989 at a time when AR was 6–9 years of age, and the appellant 10–13 years of age: meaning that the doli incapax issue falls to be considered in respect of each of these offences.

 

               Relevant count(s): counts 11, 12, 15, 16, 17 & 18 (rape).

               The offending was alleged to have occurred on dates between 1990 and 1992 at a time where AR was 10–12 years of age, and the appellant 14–16 years of age.

 

               Complainant 3 ('BR')

               Relevant count(s): counts 19, 21 & 22 (sexual assault).

               The offending was alleged to have occurred in 1991 when BR was 8–9 years of age, and the appellant 14 or 15 years of age.

 

               Relevant count(s): count 24 (rape).

               The offending was alleged to have occurred on dates in 1991 or 1992 when BR was 8–10 years of age, and the appellant 14–16 years of age.

 

               Relevant count(s): count 25 (rape).

               The offending was alleged to have occurred on dates in 1996 or 1997 when BR was 13–14 years of age, and the appellant 19–21 years of age.

 

               Relevant count(s): counts 26, 27 & 28 (sexual assault).

               The offending was alleged to have occurred in 1996 or 1997 when BR was 13–14 years of age, and the appellant 19–21 years of age.

 

               Complainant 4 ('PR')

               Relevant count(s): count 30 (indecent assault).

               The offending was alleged to have occurred on dates between 1989 and 1990 when PR was 4 or 5 years of age, and the appellant 13 years of age: meaning that the doli incapax issue falls to be considered in respect of this offence.

 

               Relevant count(s): counts 31–33 inclusive (sexual assault).

               The offending was alleged to have occurred on dates between 1991 and 1995 when PR was 7–10 years of age, and the appellant 15–18 years of age.

 

               Complainant 5 ('ER')

               Relevant count(s): count 36 (sexual assault).

               The offending was alleged to have occurred on ER's birthday in 1994 or 1995 when ER was 6 or 7 years of age, and the appellant 18 or 19 years of age.

 

               Relevant count(s): count 37 (sexual assault).

               The offending was alleged to have occurred in 2001 when ER was 11–13 years of age, and the appellant 23–25 years of age.

Factual Background

3.       As is clear from what we have set out above, the offending behaviour in this case is alleged to have occurred over a period of approximately 10 years.

4.       We will now provide some detail, insofar as it is relevant to the grounds advanced in this appeal, on the nature of the alleged offending against each complainant.

Evidence of MM

5.       Regarding the alleged offending against MM, an incident allegedly occurred on an occasion where MM was minding the appellant's children at a mobile home belonging to the appellant. MM stated that the appellant followed her into the bedroom where the children were sleeping, approached her from behind and attempted to put both of his hands down inside of her pants. MM alleged that the appellant succeeded in putting one of his hands inside her pants, subsequently placing it by her groin area. MM said that she made towards the front door of the mobile home and threatened to inform his wife about what had occurred, whereupon the appellant grabbed MM and told her that this would destroy his marriage and pleaded with her not to tell anyone about the incident.

Evidence of AR

6.       The alleged offending against AR formed the basis of counts of indecent assault, and rape against the appellant. As noted above, the incidents which form the basis of the counts of indecent assault are alleged to have occurred when the appellant was between 10 and 13 years of age, meaning the doli incapax issue falls to be considered.

7.       The evidence relating to the first alleged instance of indecent assault (count 2) was that the appellant approached AR from behind as she bent over a box where food was stored in a mobile home at Location 1 and digitally penetrated her. This continued, despite AR pleading with him to desist, until somebody knocked at the window of the mobile home. AR stated that the appellant warned her against disclosing what had occurred and threatened to drown her in the river if she did. The complainant stated that she believed this threat because she was, and remains, afraid of water.

8.       The evidence relating to the second instance (count 3) was that the appellant entered the bed where AR was sleeping with some of her sisters and lay so that his face was to her back. AR alleged that the appellant placed his penis between her legs and rubbed himself against her until he ejaculated, and that he cleaned himself on her clothes afterwards.

9.       The offending behaviour relating to count 4 was alleged to have occurred in a horses' shed at Location 1. AR alleged that, when she was being assaulted by the appellant, she pleaded with him to stop what he was doing and claimed that the appellant responded by repeatedly threatening to drown her in the river if she told anyone about the incident.

10.     Regarding the alleged offending relating to count 5, AR stated that the incident occurred in a mobile home at Location 1. She alleged that the appellant entered the mobile home and pulled all the blinds down over the windows before assaulting her. She said that after the assault the appellant threatened to drown her in the river if she disclosed what had occurred and that he looked out each window before he put the blinds back up.

11.     Regarding the alleged rapes, AR provided evidence of multiple separate incidents—two of which were said to have occurred on the day of her confirmation. The evidence was that the rapes occurred at various places on Location 1 including a shed where horses and hay were kept, mobile homes on the property, an area of bogland, and a field which was used as toilet facility. Common features of the evidence of these rapes included that the appellant would place AR facing away from him, that he would clean himself on her clothes after ejaculating, and repetition of the threat to drown her in the river if she disclosed what was occurring.

12.     AR provided evidence that during the offending relating to count 4 in the horses' shed at Location 1, her sister had entered the shed and observed what had occurred. She described going with her sister to inform her mother about what the appellant had, allegedly, done to her. AR said that when the pair described the incident to their mother, their mother reacted negatively, told them that they were, "going to get bother caused", and severely beat AR with a tube used to connect a gas barrel to a mobile home.

13.     During examination at trial, AR was asked whether other incidents had occurred. In response, she stated that she had been raped as often as seven or eight times a week by the appellant and that these incidents would occur in an area of bogland where she used to play, in and around the horses' shed, and in mobile homes on the property. The prosecution case was that counts 11, 12, 15 & 16 (the detail of which has been described above) were so-called 'specimen charges' which formed part of an extensive pattern of offending on the part of the appellant. The remaining counts (counts 17 & 18) relate to the alleged rapes said to have occurred on the date of AR's confirmation.

Evidence of BR

14.     The offending behaviour against BR consisted of multiple incidents, across different locations, and formed the basis of multiple counts of sexual assault, and rape.

15.     Some of the evidence of the alleged incidents involving sexual assault include that the appellant approached ER from behind, that he placed his penis between her legs and rubbed it in and out until he ejaculated, that he warned her against disclosing what had occurred afterwards (including a threat that she would be beaten if she did), and that he cleaned himself on her clothes after ejaculating.

16.     Regarding the incidents involving the alleged rape of BR, the evidence was that the first of these occurred in an area behind the mobile homes with a bank leading down to a body of water, which was out of view of the encampment at Location 1, where goats were kept. She stated that, on the occasion in question, she was going to check on the goats in this area and that the appellant followed her. She claimed that the appellant pushed her to the ground, lay on top of her, and placed his penis in her vagina. BR said that after the appellant ejaculated, he cleaned her with grass and then instructed her not to tell anybody about what had happened.

17.     BR's evidence was that no abuse occurred for a long period of time after the appellant married. She also described how the family had moved away from the encampment described above and had moved into a three-bedroom house when she was in her early teenage years ('Location 2'). She said that the appellant and his wife sometimes lived in a mobile home in a yard at Location 2.

18.     A further rape is alleged to have occurred in a shed where horses were kept at Location 2. BR alleged that the appellant put her lying on the floor of the shed, pulled down her clothes, and placed his penis in her vagina. She said that when the appellant ejaculated, he pulled up her clothes and exited the shed. A separate incident involving sexual assault is alleged to have occurred in the same shed, which consisted of the appellant placing ER up on a truck, facing away from him. She alleged that the appellant placed his penis between her legs and rubbed his penis in and out until he ejaculated.

19.     BR also gave evidence of other incidents involving sexual assault which occurred against an external wall of the house at Location 2. She described the location of the wall and said that, from there, the appellant would have had a view of the back door of the property and could see into the kitchen through a window, so he was able to detect whether anyone else was approaching. BR stated that the appellant would make her stand facing this window and stand behind her. She claimed that he would pull her clothes down and insert his penis between her legs and rub it in and out until he ejaculated.

Evidence of PR

20.     The alleged offending behaviour against PR formed the basis of one count of indecent assault and multiple counts of sexual assault. As noted above, the doli incapax issue falls to be considered in respect of the count of indecent assault.

21.     The count of indecent assault related to an incident which is alleged to have occurred when PR was around 4 years of age. In evidence, PR described entering a mobile home which belonged to her sister and being grabbed by her arm by the appellant as she did so. She claimed that the appellant placed her standing in front of him and proceeded to feel her vagina from outside her clothes. PR said that she had no understanding of what was occurring at the time and that she found it amusing until the appellant's action began to hurt her. She described running from the mobile home after this.

22.     The second incident was alleged to have occurred near the body of water where the goats were kept at Location 1 when ER was 7 or 8 years of age. PR said that, on the occasion in question, she was down by the water when the appellant approached her and attempted to have her remove her clothes. When she declined, the appellant pulled her clothes down to her ankles, instructed her to lie face-down and pinned her to the ground when she lay down by holding her two arms. She alleged that the appellant then rubbed his penis on the outside of her vagina. When the appellant concluded, PR claimed that the appellant warned her not to tell anybody what had occurred.

23.     The third incident is alleged to have occurred when PR was 9 or 10 years old. PR described passing by a mobile home when the appellant invited her inside. She said that once she was inside, the appellant approached her from behind, checked to ensure that nobody else was present, and locked the door. She alleged that the appellant pulled her clothes down to her ankles and rubbed his penis between her legs against the outside of her vagina and also masturbated himself. She stated that the appellant told her that she would get a beating and that nobody would believe her if she told anybody what had occurred.

24.     The fourth incident described by PR was one where the appellant allegedly placed his hands between her legs and felt her vagina while she was standing on a gate looking at a horse.

25.     PR also gave evidence of two further instances where the appellant, allegedly, rubbed her leg with his hand while she was in bed. The first of these was alleged to have occurred when PR was staying the night at the appellant's house when she was 12 or 13 years of age, while the second is alleged to have occurred in PR's mobile home when she was an adult and expecting her first child. He was convicted in respect of the first instance and acquitted in respect of the latter.

Evidence of ER

26.     The evidence was that the first alleged offence involving ER occurred on Wren's Day when ER was 7 or 8 years of age. ER described returning home from the Wren's Day festivities alone with the appellant and stated that he stopped her on the way back home and instructed her to relieve herself. She alleged that as she went to pull her pants back up the appellant told her to wait, whereupon he knelt before her, pushed her legs apart and licked her vagina. ER said that after this the appellant pulled her pants up, gave her some sweets and proceeded to walk back towards the encampment at Location 1.

27.     The second incident is alleged to have occurred sometime after the family moved to the house at Location 2 when ER was 11 or 12 years of age. ER said that on the occasion in question she was minding children in the mobile home belonging to the appellant, which was located to the rear of the house at Location 2. She described the appellant entering the mobile home on the pretext of fetching a tissue and asking her to check on one of his children. ER claimed that when she leaned over to check on the child the appellant approached her from behind and placed his hands under the waist of her pants. ER said that the appellant began masturbating himself behind her and then rubbed his penis against her. She stated that the appellant desisted after she pleaded with him to stop what he was doing, and that he warned her against disclosing what had occurred.

Grounds of Appeal

28.     The appellant appeals against his conviction on the following grounds: -

i.        The trial Judge erred in failing to sever the indictment.

ii.       The trial Judge erred in law in failing to withdraw certain counts from the jury where the Appellant was aged between 10 years old and 14 years old at the time of the alleged criminal acts in accordance with the doctrine of doli incapax.

iii.      The trial Judge erred in law in failing to discharge the jury after certain prejudicial evidence of [Witness A] was given in the presence of the jury.

29.     We will deal with each ground in turn.

The severance issue

30.     The application to sever the indictment was heard by the trial judge on the 26th of January 2022. Counsel applied for the indictment to be severed so that the offences relating to the five complainants would be separated from each other. During the hearing of this issue, counsel for the appellant submitted that certain statements in the book of evidence established that there had been some conversation or communication between the five complainants prior to their provision of statements to an Garda Síochána regarding the alleged offences. On this basis, it was argued that there was a "very real danger" of collusion between the complainants and/or innocent cross contamination of the accounts given (counsel also cited the fact of the five complainants' participation in a trial of offences committed by their father during the same period as those alleged to have been committed by the appellant in support of that submission).

31.     Counsel further submitted that there were distinct differences between count 1, relating to MM, and the balance of the counts on the indictment which itself warranted severance of that count from the indictment. The thrust of his submission was that the fact that both MM and the appellant were adults when the offence is alleged to have occurred is a key factor which renders it substantially different from the other counts on the indictment and thus warranted its severance.

32.     On appeal, counsel for the appellant submitted that the trial judge erred by refusing separate trials for each of the five complainants, and in his application of the legal principles pertaining to the issue of severance enunciated by the Supreme Court in The People (DPP) v. Limen [2021] 2 I.R. 546. Regarding the application of Limen, counsel submitted that the general principles articulated by the Supreme Court in that case were expressly subject to the overriding requirement to ensure a fair trial. He submitted that, having regard to the facts of the present case, the trial judge failed to ensure a fair trial. In his written submissions on this point, counsel referred to the following facts, in particular, in support of that submission: -

(a)     The main basis for the similarity in the offences as relied on by the prosecution related to how it was alleged that the appellant physically advanced towards the complainants.

(b)     The complainants were not truly independent of one another - they are sisters who lived and grew up in close quarters with each other and had discussed their allegations with each other prior to attending the Garda station together to make their respective statements.

33.     We understand that the effect of counsel's submission to be, firstly, that the facts of this case required a separate trial to be held in respect of each complainant; and, secondly, that even if this is not the case, the particular facts of the offence relating to MM warranted that count being severed from the other counts on the indictment.

34.     Counsel for the respondent made a number of submissions opposing the application to sever the indictment. In particular, counsel emphasised that the familial relationship was key to all of the allegations—the offences occurred in familial situations and by reason of the family relationship. He further submitted that there was no evidence in the case which suggested that the complainants had colluded with one another and that, at its height, all that the evidence established was that the complainants made a joint-decision to make the complaint to an Garda Síochána which the defence could explore in cross-examination. Counsel's submissions also focused on the similarities in the nature of the evidence identified by each complainant including: the repeated allegation that the appellant approached the complainant from behind; rubbing of the penis between the complainants' legs; rubbing of his hands between the complainants' legs; wiping or cleaning his penis on the clothing of the complainant; and making threats to ensure the complainants remained silent.

35.     On appeal, counsel for the appellant submitted that the trial judge was justified in ruling that the probative value of the evidence was not outweighed by the prejudicial effect to the accused. He also submitted that the trial judge was correct to conclude that the family relationship between the complainants and the fact that there had been some discussion between them of their experiences did not deprive the complainants of their independence, establish collusion between them, or contaminate the evidence and that he applied the principles established in Limen correctly in that regard.

36.     We think that the following extract accurately sets out the judge's ruling on this issue:

               "In the present case the offences included in the indictment are of a sexual nature, of varying severity and are alleged by five separate but related complainants.  It is acknowledged by the prosecution that there was some degree of conversation or communication between the complainants regarding the alleged abuse prior to them making their complaints to An Garda Síochána.

               However, as is made clear in [Limen], when deciding whether allegations of sexual abuse involving a number of alleged complainants particularly where the abuse is alleged to have been committed by one family member upon a number of other family members, such considerations as the familial relationship between the complainants and the fact that there may have been some discussion between them of their experiences, do not in themselves rob such complainants of their independence or constitution collusion or contamination so that the evidence of the offending against one should be excluded from a trial concerning offending alleged against another.

               In this case there are a number of significant similarities in the accusations levelled against the accused by the five complainants.  I accept the prosecution's submission as regards the similarities of evidence set out yesterday by Mr Byrne.  Those include that the accused is alleged to have initiated the abuse when the complainants were young children, save in the case of M. 

               The abuse is alleged to have occurred in familial settings.  In many instances it is alleged that the abuse was initiated by approaching the complainant from behind.  The nature of the alleged sexual or indecent assaults bore certain similarities, rubbing of the penis between the complainants' legs, rubbing of his hands between the complainants' legs, putting his fingers into the vagina of the complainant.  Wiping or cleaning his penis on the clothing of the complainant.  Making threats to obtain the complainants' silence. 

               As [Limen] makes clear, it is not necessary for the counts of the indictment to consist of accusations of identical or striking similarity in detail.  The allegations must be of the same nature.  Similarity might add to the probative value and the greater the similarity, the greater the probative value.

               It should be noted that there are also dissimilarities in the evidence, proposed evidence of the various complainants as regards some of the details of the abuse allegedly carried out on each complainant and that is only to be expected.

               In light of the judgments in [Limen], counsel on behalf of the accused does not really contest the existence of similarities in the accounts of the various complainants.  Nor does he argue with any great vigour that the accounts are so dissimilar as to have no cross probative value.  Rather he places emphasis on the fact that the complainants are not entirely independent of one another and that the book of evidence discloses that there were conversations or discussions between them concerning the abuse prior to going to An Garda Síochána with their complaints.

               In such circumstances he submits that the risk of collusion or innocent mutual contamination as regards to their respective accounts is so great that a fair trial is not possible if the counts are tried together and thus the indictment must be severed. 

               However, as pointed out earlier, the Supreme Court in [Limen] has made it clear that in the context of cases involving sexual abuse within the family, such matters do not in themselves establish collusion or contamination so as to justify serving the indictment."

37.     In her judgment in Limen, O'Malley J. synopsised, at para. 193, the general principles pertaining to the issue of severance as follows:

               "... The following principles are intended as guidance to trial judges, subject at all times to the overriding requirement to ensure a fair trial:

               (a) A judge may in any case sever the indictment if of the opinion that it would be unfair to the accused to proceed with the indictment as drafted.

               (b) Where the accused is charged with multiple offences of the same nature against several individuals, some probative value may be found in the inherent unlikelihood that several people have made the same or similar false accusations. The accusations need not be identical or "strikingly similar" but must be of the same nature. However, similarity may add to the probative value, and the greater the similarity is, the greater the probative value.

               (c) The inherent unlikelihood of multiple false accusations, and therefore the probative value, rises in situations where the complainants are independent of each other and there is no reason to fear collusion or mutual contamination.

               (d) Where an application is made to sever the indictment (or, indeed, if the trial develops in such a way as to give rise to the issue), the judge will have to consider whether or not the complainants are independent of each other, and whether there are any grounds for concern that there may have been either collusion or innocent mutual contamination. This does not mean that, for example, accusations by a number of family members against a relative cannot be tried together. They may not be independent of each other, and may very probably have discussed the matter together and with other family members, but there may nonetheless be probative value in the content of their various accounts.

               (e) Depending on the judge's assessment of the situation either at the outset (based on the statements of proposed evidence), or during the trial (if the evidence raises concern) it may be necessary to either sever the indictment or give the jury an appropriately tailored warning about the possibility of collusion or contamination.

               (f) In a case involving multiple complainants, if it is determined that the evidence of each complainant is admissible in respect of counts relating to other complainants, there is no requirement to explain that ruling to the jury other than in general terms. The jury may be told that they need to be sure that the witnesses are truthful and have not been influenced in their evidence by each other. If they so find, they can regard any similarities that they find between the witnesses' accounts of what the accused did as supportive evidence in relation to each count.

               (g) Where any material part of the evidence can be regarded as admissible only in respect of an individual complainant, the jury should be instructed to take it into consideration in respect of that complainant only.

               (h) The weight to be attached to supportive evidence of this nature is a matter for the jury, but they should be warned that they can convict on any individual count only if satisfied beyond reasonable doubt that the accused committed the offence charged, and that they must not reach that conclusion solely on the basis that there are multiple accusers.

               (i) It is unnecessary, and may be unhelpful, to direct the jury in relation to the rules about corroboration unless the trial judge decides to give a corroboration warning. In that situation, the ordinary definition of corroboration applies. Evidence given by other complainants may or may not come within that definition. If it is not within the definition, but is capable of being found by the jury to support the prosecution case in respect of any particular count, there is no reason why counsel should not say so."

38.     Those general principles were subsequently considered and applied by this Court in The People (DPP) v. L.N. [2024] IECA 100. This is of particular relevance having regard to the fact that, in distinction to the other complainants (who were children at the time of the offending), MM was 25–27 years of age at the time of the alleged offence. L.N. also involved an indictment which included multiple counts of various sexual offences relating to multiple complainants who had a familial relation to the appellant. An issue arose regarding whether a count of rape committed when one of the complainants was an adult ought to have been severed from counts arising from when she and the other complainants were children. The conclusion reached on this issue was stated by Ní Raifeartaigh J. at para. 37 as follows:

               "We are of the view that there is no bright-line rule in the sense that one can say that adult rape allegations should never be tried in conjunction with indecent assaults in respect of the same person when a minor, nor conversely can one say that they should always be tried together. All depends on the facts of a particular case. ..."

39.     The analogy between L.N. and the present case is strong.

40.     We think it appropriate to make certain observations about the count relating to MM. It is of note that the manner of the assault was similar to that in a number of other offences involving the other complainants. Notwithstanding the age of MM and the appellant when the offence was alleged to have occurred, there is a sense in which what occurred was a continuum of offending involving all of the sisters and that no real distinction exists between assaults on the other complainants when they were minors and MM. Furthermore, the fact that the assault occurred in the privacy of the appellant's mobile home when his children were asleep, in the care of the complainant, and when nobody else was present bears a striking comparison to the second incident described by ER.

41.     There was evidence of some discussion between the complainants about what had occurred, and that they went to an Garda Síochána together to make a statement. This is perfectly natural in a family, and it does not constitute contamination of evidence or collusion at least on the evidence in the present case. Whilst we have set out only a summary of the evidence in the usual way and not quoted the entirety of the ruling, we are satisfied that the judge correctly applied the principles elaborated in Limen as supplemented by L.N. so far as the allegation in count 1 pertaining to MM is concerned. The judge undoubtedly kept the question of severance under review in the course of the trial (he was dealing with more than the proposed evidence referred to in the book) and no one has suggested that he did not deal correctly with how to approach multiple complaints by multiple complainants in the charge.

42.     The joinder of all counts in the indictment was lawful pursuant to section 5 of the Criminal Justice Administration Act 1924, and the trial judge was right in his conclusion that there was nothing to suggest contamination and/or collusion. The fact that the complainants spoke or took certain steps together (e.g. all complainants attended at a garda station together) does not mean that the judge was not entitled to take the view that there was no basis for concern in this regard. We should add that when we refer to contamination this extends to contamination which might be innocent. There could be no unfairness to the appellant. The evidence of the complainants as to the offending of which each of them severally were victims was cross-admissible as between them. Furthermore, it was not necessary to make any further application in light of the way the trial ran. We regard this as a very typical case of intra-family abuse where the conduct impugned was a continuum.

43.     We therefore reject this ground.

The doli incapax issue

44.     For the sake of clarity, this ground of appeal relates to counts 2, 3, 4, 5, and 30 on the indictment (the particulars of which have been set out above).

45.     Counsel for the appellant applied for a directed acquittal on the aforementioned counts on the basis of the application of the rules of doli incapax to the facts of the case. The old common law rules were applicable in this case since the charges pre-date the enactment of the Children's Act 2001 and because the appellant was under the age of 14 at the time of the alleged offending on each count.

46.     The rule is so well-established that we do not think it necessary to elaborate it beyond setting out the following quotation from the ruling of the trial judge which accurately states the position:

               "The matter of doli incapax was considered by Mr Justice Barr in B v. DPP.  In the course of his judgment, Barr J. cited Morris J. in KM v. DPP where the definition of the presumption given by Slater J. in R v. Gorry was adopted.  Effectively, the jury must be satisfied that when the boy did the act, he knew what he was doing was wrong, not merely that it was wrong but that it was gravely wrong, seriously wrong.  The jury would have to be satisfied beyond all reasonable doubt that the accused knew his conduct was seriously wrong in the sense that it was not merely naughty or mischievous.  Barr J. was satisfied that the case law established that evidence of commission of the crime itself could not be used to establish that the minor had the requisite knowledge that what he or she was doing was seriously wrong.  And that the nearer the minor is to the age of 14 years old at the time of commission of the offence, the easier it is for the [prosecution] to rebut the presumption. 

               Beyond those two principles, the jury can have regard to a wide range of evidence when considering whether the jury had the necessary appreciation of the quality of his actions at the time that he carried them out.

               Barr J. noted the case of KM v. DPP where Morris J. held that on the evidence that a 13-year-old boy had threatened to kill a girl if she told anyone about what happened in the context of sexual assault allegations.  It would be open to the jury to conclude that the accused was aware that his conduct was seriously wrong.  Barr J. also referred to the case of Minister for Justice and Equality v. PK, in which Hunt J. stated that to rebut the presumption of doli incapax, the prosecution must at the outset produce evidence capable of satisfying a jury beyond all reasonable doubt that the accused knew that his conduct was seriously wrong in the sense that it was not merely naughty or mischievous.  In that case, Hunt J. was satisfied that where the potential evidence suggested that the alleged victim was removed from her siblings on a pretext that an advanced sexual act occurred, that there was an instruction not to tell anyone else and that there was a final statement that his act demonstrated how he loved his stepsister.  It would clearly be open to a jury to conclude that the boy was aware that such conduct was seriously wrong.

               In the English case of C v. DPP, the accused was aged 12 and was seen by police officers using a crowbar to tamper with a motorcycle in a private driveway.  He had run away but was caught and arrested.  The Court held that the act of running away was usually equivocal because a flight from the scene could as easily follow a naughty action as a wicked one.  However, the Court stated that there could be cases where running away would indicate guilt and knowledge where the act was either wrong or innocent.  And there was no room for mere naughtiness.  The example given was selling drugs on a street corner and fleeing the sight of a police van.

               The defence pointed a lack of formal education received by the accused.  However, the issue is not one of education or academic ability but rather whether the accused knew what he was doing was seriously wrong, gravely wrong and not merely naughty or mischievous.  The question which the Court must determine in the context of this application is whether there is sufficient evidence before a properly directed jury capable of rebutting the presumption of a lack of criminal capacity.

               It should be remembered that the particular weight to be given to any particular piece of evidence is a matter for the jury to determine and it is not for this Court to usurp the functions of the jury in that regard."

47.     In addition, the trial judge engaged with the facts relating to each count in detail, broke down each offence, and correctly applied the relevant principles of law to each. We cannot set out the trial judge's ruling in full, nor can we reprise the evidence; however, the following extract encapsulates the correct approach taken by the judge:

               "It should be remembered that the particular weight to be given to any particular piece of evidence is a matter for the jury to determine and it is not for this Court to usurp the functions of the jury in that regard.

               As regards count 2, this is alleged to have occurred between 1986 and 1988 when the accused was approximately 10-12 years old.  I accept the defence's submission that in such circumstances, the jury should approach the matter on the basis that the accused was 10 years old.  The prosecution rely upon the fact that according to the evidence of [AR], when the accused was interrupted by someone knocking on the window, he ran out.  The prosecution places more emphasis on her evidence that he told her not to tell anybody or he would drown her in the river and her belief that he would so drown her.

               As regards count 3, the prosecution cannot point to any specific threat but rely on the earlier threat made in respect of count 2 and the subsequent threat made in respect of count 4.  In effect, they contend that if he had criminal capacity in respect of counts 2 and 4, the jury could be satisfied that he had such capacity in respect of count 3.

               As regards count 4, the prosecution point to the evidence [AR] of  that as he was committing the act and she asked him to stop, he kept telling her that if she told anyone, he would drown her in the river and she was frightened. 

               As regards count 5, this alleges an offence between the 22nd of June 1987 and the 21st of June 1989 when the accused would have been between 11 and 13 years old.  Again, I accept the defence's submission that the jury should approach this on the basis that the accused was 11 years old at the time.  The prosecution point to the evidence of [AR] that the accused closed the blinds of the caravan prior to assaulting her, that he threatened to drown her if she told anyone and that he looked out of each window before he put the blinds back up.

               As regards counts 2, 3, 4 and 5 on the indictment, I am satisfied that there is evidence before the jury which is capable of rebutting the presumption that the accused lacked criminal capacity at the time of the acts in question.  As regards counts 2, 3 and 4, the evidence of the threats made in respect of counts 2 and 4 could be regarded by the jury as sufficient to establish that the accused knew that what he was doing was seriously wrong and not merely naughty or mischievous.

               Count 3 is alleged to have occurred in and around the timeframe as counts 2 and 4 and so the jury have satisfied he had criminal capacity as regards counts 2 and 4, could be satisfied he had criminal capacity as regards count 3.

               In the case of count 5, there is evidence of a serious threat being made in the secretive behaviour of the accused as regards the blinds.  Whether in fact the evidence does rebut the presumption is a matter for the jury who will consider it in light of all other evidence in the case including the accused's lack of formal education.

               As regards count 30, this is alleged to have occurred between the 16th of October 1989 and the 16th of January 1990, when the accused would have been 13 years and five months old.  There is no evidence of any threat on that occasion and touching is alleged to have occurred while others were in the caravan.  The prosecution submit that if the jury was satisfied that the accused had criminal capacity in respect of counts 2, 3, 4 and 5 which occurred earlier, then it is open to the jury to conclude that he continued to have criminal capacity at the later age of 13. 

               On the jurisprudence, it would appear that it is easier to rebut the presumption of lack of criminal capacity the closer the accused is to 14 years old.  I appreciate that there is an absence of any clandestine action or threats on the part of the accused as regards count 30.  But it seems to me if the jury were satisfied that the accused had criminal capacity in relation to the earlier incidents, then it would open to them to conclude that he knew such deliberate and intentional touching was gravely and seriously wrong and not merely naughty or mischievous.

               I am satisfied that as regards count 30 on the indictment, there is sufficient evidence before the jury which could be capable of rebutting the presumption of a lack of criminal capacity on the part of the accused.  I refuse the application for a directed acquittal in respect of counts 2, 3, 4, 5 and 30 of the indictment.  It is of course a matter for the jury to determine what weight, if any, to give to the evidence relied upon by the prosecution in that regard in all the circumstances of the case and ultimately to determine whether, in fact, the presumption of lack of capacity has been rebutted."

48.     Again, we do not need to reprise the evidence, and we think that the judge correctly had regard to the relevant principles in their application to the evidence.

49.     We therefore reject this ground of appeal.

The discharge issue

50.     This issue arose because what might shortly be described as a second statement of a witness was not disclosed, by reason of oversight, to the defence and in that statement the witness alleged what we might describe as sexual misconduct by the appellant which was not the subject of a count on the indictment. Evidence in this respect emerged in the course of cross-examination: the appellant had not informed his lawyers of this allegation even though he must have known of it since he was the subject of an investigation in relation thereto; indeed, a file had been sent to the DPP (who decided against a prosecution).

51.     The circumstances in which the application to discharge the jury arose are accurately summarised by the trial judge in his ruling on the application at trial. We think it worthwhile to set out the summary as follows:

               "Turning to the facts of this case, I found the following to be of particular significance in the context of the application to discharge the jury.  The counts on the indictment cover the complaints of five sisters of the accused that he sexually abused them.  The accused thus already faces the prospect of numerous siblings alleging abuse against him.   The evidence given by [Witness A] was very limited and lacking in any detail.  The accused was at all times aware of the fact that [Witness A] had made an allegation of abuse against him.  He had been arrested and questioned in respect of it.  His response in interview to such allegation was to deny it.  He does not appear to have informed his legal team of this.

               The defence were on notice since the 6th of January 2022 that [Witness A] was to be called as a witness.  The evidence complained of was elicited by defence counsel.  Defence counsel may have been lulled into a false sense of security in asking the question by reason of the disclosure of the first and third statements and failure of the prosecution to disclose the second statement of [Witness A].  However, there was always a risk that [Witness A] would not give evidence in accordance with the statements disclosed and in going outside the matter in respect of which direct evidence had been given by her, that risk was taken.  There's no suggestion of any mala fides or attempt to gain tactical advantage on the part of the prosecution in failing to disclose the second statement of [Witness A]."

52.     The judge, later in the ruling, also, correctly, stated that:

               "It must be borne in mind that the prosecution remain bound to prove each and every count beyond a reasonable doubt on the basis of legally admissible evidence.  It must also be borne in mind that the jury will receive directions as to how to deal with the evidence which they hear."

53.     The trial judge decided to deal with the difficulty in the following way in his charge:

               "Now, ladies and gentlemen, as I say, the next witness we're dealing with is [Witness A] and she gave evidence that she was a sister of [the appellant], the accused man.  And she was asked:  "It has been put to one of the witnesses, your sister, [ER], that she in some way tried to influence you to support the complaints being made by your sisters, or to effectively make up lies about your brother [the appellant]?"  Her answer was:  "No, your honour.  She did not."  And then she was questioned:  "Did you have any discretion at all with [ER] tending to suggest to you that you should make up something or say something about [the appellant]?"  Her answer was:  "None whatsoever, your honour."  And I think there might have been some difficulties hearing some of that witness's testimony, but that was the only relevant evidence that she had to give, and anything else that any other evidence she gave about anything else has to be completely disregarded by you, and it's not to form part of any your considerations or deliberations in this matter, you're to completely exclude it.  So, the only relevant evidence she had to give was the evidence that I've just read out to you, and ignore anything else that you think you may have heard."

          This excluded any basis for concern so far as one existed at all.

54.     No one now seriously doubts the fact that juries, when instructed by a judge to ignore a piece of evidence, as here, do not ignore such instructions. There is no suggestion that this occurred here.

55.     We therefore reject this ground of appeal.

56.     Given that none of the grounds of appeal have been upheld we accordingly dismiss this appeal.

Result:     Dismiss