Court of Appeal: Appeal against conviction dismissed in historical sexual abuse case

About this case:

• Citation:
  [2025] IECA 72
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Patrick J. McCarthy

Delivering judgment for the Court of Appeal, Mr Justice Patrick McCarthy was satisfied that the trial judge had properly refused to sever the indictment in the case and to discharge the jury, and correctly dealt with the legal principles concerning the common law doctrine of doli incapax.

Background

The appellant was convicted by a unanimous jury verdict of eight counts of rape contrary to common law and to s.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 s.2 of the Criminal Law (Rape) (Amendment) Act 1990.

The five victims were all close family relations of the appellant.

The appellant appealed against his conviction, alleging that the trial judge erred in refusing to sever the indictment, erred in failing to withdraw certain counts on the basis of the doctrine of doli incapax where the appellant was between 10-14 years of age at the time of certain of the alleged criminal acts, and erred in refusing to discharge the jury after prejudicial evidence was given which had not been disclosed to his lawyers due to an oversight.

The Court of Appeal

Mr Justice McCarthy set out the application for severance made to the trial judge, in which it was contended that certain statements in the book of evidence established that there had been some communication between the five complainants prior to their statements to Gardaí leading to a danger of cross-contamination of their accounts, and that in respect of one count, both that complainant (MM) and the appellant were adults at the time of the alleged offending rendering that offending substantially different from the other instances.

In this regard, the Court of Appeal was satisfied that the trial judge had correctly applied the principles outlined in The People (DPP) v. Limen [2021] 2 I.R. 546 and The People (DPP) v. L.N. [2024] IECA 100.

In particular, the court observed that notwithstanding MM’s and the appellant’s age at the time of the offending, what occurred was “a continuum of offending” involving all the sisters and that no real distinction existed between the assaults perpetrated on MM and her sisters. The court also expressed that “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.”

As to the doli incapax issue concerning the appellant’s criminal capacity while under the age of 14, Mr Justice McCarthy observed that the old common law rules applied where the charges pre-dated the Children’s Act 2001.

The judge noted that the trial judge properly engaged with the facts relating to each count in detail, broke down each offence, and correctly applied the relevant principles of law to each, as evidenced by extracts from the ruling in which the trial judge had regard to matters such as the appellant’s closing blinds in the caravan prior to assaulting one complainant and his threatening to drown her if she told anyone what happened.

The Court of Appeal agreed with the trial judge that there was evidence capable of rebutting the presumption of a lack of criminal capacity on part of the accused.

Mr Justice McCarthy then considered the trial judge’s refusal to discharge the jury after evidence emerged in cross-examination alleging sexual misconduct which was not the subject of a count on the indictment and which had not been disclosed to the defence due to an oversight.

The appellant had not informed his lawyers of this allegation in respect of which the DPP had decided against bringing a prosecution.

The court was satisfied that the trial judge’s charge to the jury “excluded any basis for concern so far as one existed at all” and remarked that “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.”

Conclusion

Accordingly, the Court of Appeal dismissed the appeal.

DPP v EO’R [2025] IECA 72