Court of Appeal dismisses appeal against rape conviction, upholding doli incapax direction and refusal to sever charges.

THE COURT OF APPEAL

Court of Appeal Record Number: 130/2024

Neutral Citation: [2025] IECA 302

Edwards J. Butler J. Hyland J.

BETWEEN/

THE PEOPLE (AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS)

PROSECUTOR/

RESPONDENT

-AND –

A.L.

DEFENDANT/

APPELLANT

JUDGMENT of the Court delivered on the 18th day of December 2025 by Ms. Justice Butler

Introduction

1. This is an appeal against conviction. The appellant was convicted in December 2023 on nine counts of sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act, 1990 as amended on a twenty-two count indictment. The charges related to complaints made by three complainants and covered a period ranging from 16 March 1996 to June/July 2005. The appellant is approximately five years older than the first two complainants. The date range for the earlier offences commences at a point when those two complainants were 7 and 6 years old respectively and the appellant was 11, being just three months shy of his 12th birthday. For ease of reference in this judgment the complainants will be referred to as C1, C2, and C3.

2. Two issues are raised on the appeal. The first concerns the ruling made at a pre-trial hearing, coincidentally by the same judge who conducted the trial, refusing to have the trial of the complaints made by the third complainant severed from those made by the first two complainants. The second concerns the refusal of an application for a direction made on behalf of the appellant at the close of the prosecution case on the grounds of doli incapax.

Factual Background

3. Because of the nature of the issues on this appeal, it is necessary to set out the background to the charges in somewhat greater detail than would normally be required. The charges in this case all arise in circumstances of close social and familial relationships between the complainants and the appellant centring on the open and hospitable home of the C2’s family.

4. C1 was the childhood friend of C2. They lived in the same locality and attended school together. As a result, C1 spent a lot of time in C2's family home and frequently stayed overnight, sleeping with C2 in C2's bedroom. C2 came from a large family and had a number of older siblings. The appellant was a close friend of C2's older brother. The appellant originally lived in the same locality but moved to another part of the country with his mother when his parents separated. He returned regularly at weekends and during the holidays to stay with his father and, like C1, spent a lot of time in C2's family home frequently staying overnight with C2's brother. The general tenor of the evidence was that until these events came to light the appellant was treated as a member of C2's extended family group. The age gap between C1 and C2 and the appellant is approximately five years (C1 being some months older than C2).

5. C3 is a cousin of C2 and met the appellant in the context of C2's family. C3 is a contemporary of the appellant and in her teenage years she often socialised in a group with C2's older brother (also her cousin) and the appellant.

6. C2 gave evidence of a number of sexual assaults perpetrated upon her by the appellant from a time before she made her first Holy Communion until she was about 10 or 11 years old. On each occasion she was in the company of C2. The appellant, under the guise of playing a game, would touch her culminating in his touching of her vagina. These incidents took place at a local swimming pool with a jacuzzi to which C2's father took the children, in a sitting room and in C2's bedroom in C2's family home.

7. In the pool and jacuzzi, C2 said the appellant would dive under the water/bubbles and touch the girls underneath their swimsuits. When the girls were sitting watching television covered in blankets on a couch in the sitting room, the appellant would sit between them and play a game called 'nerves' whereby he would move his hands up their thighs until he reached and touched their vaginas. If either girl laughed, they were 'out' and would lose the game. The appellant also entered the bedroom in which C1 and C2 were in bed. He would crawl on the floor making animal noises intended to scare them. He would then grab them by the ankles or legs under the bed covers and move his hands upwards until he touched their vaginas under their underwear.

8. C1 gave evidence that when this occurred for the last time she was gradually becoming aware of what was going on, so she screamed really loudly and angrily. As a result, C2's brother called the appellant out of the bedroom. C2's brother was never present when these 'games' were being played in the sitting room or the bedroom. The first six counts in the indictment related to these offences against C1.

9. C2 gave evidence similar to C1 in relation to the appellant touching her vagina at the swimming pool and jacuzzi, in the sitting room and in her bedroom. Counts 7 to 18 on the indictment related to these offences against C2.

10. C2 also gave evidence of two further incidents which occurred when she was 12 and

15 years old. The incident when she was 12 years old occurred in 2002 at her older sibling's 21st birthday party. The appellant was 17 1/2 years of age at the time. The appellant provided C2 with alcohol during the party and then appears to have taken her away from the main crowd to a quiet spot near a hedge. C2 has a very hazy memory of these events due to having consumed alcohol but recalls coming to under a hedge partially unclothed. However, C1 was concerned at her friend's absence and went looking for her. She found C2 underneath some trees at the back of the house, her clothing in disarray and with the appellant 'on top of' her. C1 could see that the appellant had been 'feeling her up' as his hands were moving on top of C2. In his Garda interview, the appellant admitted kissing C2 on this occasion.

11. The second incident occurred in 2005 when C2 was 15 years of age. She was returning from the appellant's 21st birthday party in a local hotel. C2 describes the appellant sexually assaulting her whilst her parents were in the front seats of a car and C2 and the appellant were in the back seat. C2's parents were unaware of what was happening but at a later point in the journey the appellant was asked to get out of the car because he had spilt alcohol on the upholstery. These events are the subject of counts 19 and 20 on the indictment.

12. The final two charges, 21 and 22, relate to offences committed against C3 in the aftermath of a social event in 2002, i.e. very proximate in time to the events the subject of count 19. C3, who acknowledged a prior intimate interaction with the appellant, was waiting for a lift home from her father who was due to collect her, the appellant and C2's brother. The appellant took C3 by the hand and led her along a line of parked cars to a point where he pushed her against a wall, pressed against her, kissed her and sexually assaulted her by putting his hands inside her dress and touching her breasts. Later that evening, C3 was sitting in the front passenger seat of a car driven by her father with the appellant in the seat behind her. She turned around when he attracted her attention, and she saw that he had his left hand inside his trousers in the area of his genitals. C3 turned away and the appellant reached forward with his left hand and stuck his fingers in her mouth.

13. The 22 counts on the indictment span a period of nearly a decade from March 1996 to June/July 2005. During this period the appellant aged from 11 years to 21 years. The appellant’s age during the period covered by counts 1 to 6 ranged from 11 years to 15 years and in respect of counts 7 to 18 his age ranged variously from 12 years to 16 or to 17 years. He was 17 1/2 in the spring of 2002, i.e. the period during which counts 19, 21 and 22 were alleged to have taken place. He was 21 in 2005.

Legal Background

14. Complaints were first made to the Gardaí in connection with these matters in 2018, some 22 years after the earliest alleged incident and 13 years after the latest. The amicable relationship between the appellant and C2’s family had continued until this point.

15. The appellant was returned for trial on a twenty-two charge indictment. An application seeking to sever charges 21 and 22 (i.e. those relating to the offences against C3) was unsuccessfully moved in advance of the trial in October 2023.

16. In the course of the trial, after the complainants had given evidence, the appellant successfully applied for a direction in respect of six counts, namely counts 10, 11, 14, 15, 17 and 18, all of which related to offences against C2. At the conclusion of the trial the jury acquitted the appellant on a further six charges, namely charges 1, 2, 3, 8, 9 and 11. The net effect of this was that between directions and acquittals, the appellant was found not guilty on all of the charges alleging sexual assault of C1 and C2 at the swimming pool and jacuzzi. In total 12 of the 22 charges were the subject of either directions or acquittals.

17. The jury were unable to agree on one charge, number 20, i.e. the 2005 incident in the back of C2’s parents’ car. The jury convicted the appellant on the other nine charges. In summary, the appellant was convicted of three counts of sexual assault against C1 which took place in the sitting room and bedroom of C2’s family home between 1996 and 2000; three counts of sexual assault against C2 similarly taking place in the sitting room and bedroom of her home between 1996 and 2002 and one count of sexual assault against C2 which took place in the garden of her family home at her sibling’s 21st birthday party in 2002. Finally, the appellant was convicted of two counts of sexual assault against C3 in 2002. Of these nine convictions, six were unanimous and three were majority verdicts. Legally nothing turns on this, but it does indicate the care the jury took in reaching their verdicts on each of the individual charges.

Ground 1 – Severance

18. The application for severance was moved on behalf of the appellant on the basis of an insufficient similarity between counts 21 and 22 (i.e. those involving C3) and all of the other counts on the indictment (i.e. those involving C1 and C2) so as to justify all charges being heard together. It was contended that the joinder of charges 21 and 22 would result in the jury hearing evidence on those charges which would cause prejudice to the appellant in relation to charges 1 to 20 inclusive. Similar arguments were made on this appeal. In highlighting the differences between the two groups of charges, the appellant’s written submissions emphasise the five-year age gap between the appellant and C1 and C2; the appellant’s position of trust and seniority with respect to those complainants and the fact that those offences occurred at a time when C1 and C2 could not have legally consented to the alleged behaviour. This is contrasted with the fact that the appellant and C3 are contemporaries, were part of the same group of friends and had a previous consensual sexual engagement. The element of a “game” as a pretext for sexual touching of the younger complainants was absent in the charges relating to C3. Counsel characterised the difference between the charges as that between peer engagement and the sexual predation of a younger child.

19. In response, the DPP pointed out that these distinctions only apply to counts 1 to 18 and do not adequately deal with the fact that the abuse alleged against C2 was part of a continuum which also included counts 19 and 20. Counsel for the DPP described counts 19 and 20 as a “temporal bridge” between counts 1 to 18 and counts 21 and 22. It was noted that during the application before the High Court the appellant’s counsel had floated the idea that counts 19 to 22 inclusive should all be tried together separately from counts 1 to 18 – although this had not been not signalled in advance and formally the application for severance related only to counts 21 and 22. The DPP contended that in making this suggestion the appellant implicitly accepted that it was appropriate to try counts 21 and 22 with counts 19 and 20, thereby undermining his complaint of prejudice.

20. Both sides relied on the decision of the Supreme Court in DPP v. Limen [2021] IESC 8, [2021] 2 IR 546. Both Charleton J. and O’Malley J. delivered judgments, but the argument focused on the summary of the relevant principles in the judgment of O’Malley J. Limen concerned the rape of two women on the same night following a party in the appellant’s apartment. The issue was not severance per se but the extent to which, when there are two or more victims in a case of alleged sexual violence, the evidence of one or more of the victims can support the evidence of another and how similar their accounts need to be to justify the admission of the evidence of one in respect of the charges relating to another.

21. Following a comprehensive review of the case law, O’Malley J. rejected the notion that a “striking similarity” was required between the evidence of two or more victims when determining whether the evidence of one should be heard in connection with an allegation relating to another. She continued (at paragraph 132) citing Lord Mackey in DPP v. P [1991]

2 AC 477: “It was not appropriate to single this out as an essential element in every case where a question arose as to whether evidence of an offence against one victim should be heard in connection with an allegation against another. The essential feature was that the probative force of the evidence must be sufficiently great to make its admission just, notwithstanding its prejudicial effect. The probative force might be provided by striking similarities in the evidence about the manner in which the crime was committed, but admissibility did not depend on that feature. Whether the evidence had sufficient probative force to outweigh the prejudicial effect must in each case be a question of degree.”

22. O’Malley J. summarises her conclusions in two separate paragraphs of her judgment. At para. 191 she summarises the principles relating to the admission of evidence that an accused committed offences other than those charged. She focuses on the relevance of the evidence in question to an issue to be determined by the jury and the need to ensure that its prejudicial effect is not out of proportion with its true evidential value. At para. 192 she cautions against the tendency to categorise and to draw “bright line rules” such as an insistence on “striking similarity” which could overshadow “the underlying, consistent nature of the factual circumstances and the relationship between complainants and accused”.

23. At para. 193 O’Malley J. offers guidance to trial judges, subject to the overriding requirement to ensure a fair trial. The first three of those principles are as follows: – “(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.”

24. The fourth principle concerns the need to consider severance where there is a possibility of collusion or innocent contamination because the complainants are not independent of each other. Notwithstanding the relationships between the complainants in this case, it was not suggested by the appellant that their evidence was contaminated. Indeed, O’Malley J. observes that accusations by a number of members of one family against a relative can be tried together despite the fact that they will probably have discussed the matter together as “there may nonetheless be probative value in the contents of their various accounts”.

25. The other principles relate in part to how the jury should be charged or, if appropriate, warned regarding the evidence of the various witnesses in such cases. It is notable here that the grounds of appeal relate only to the preliminary ruling in which the trial judge refused to sever the indictment. No issue is taken with the way in which he charged the jury as regards their treatment of the evidence of the complainants in relation to the counts alleging offences against the other complainants. This is, of course, subject to the overarching point taken as to the correctness of the initial refusal to sever the indictment.

26. The decision in Limen was also central to the trial judge's ruling. He characterised the judgment in Limen as moving away from jurisprudence which required an analysis of similarity or dissimilarity in order to assess whether there was a striking similarity between the evidence of various complainants. Instead, he regarded para. 191(ii) of O’Malley J.’s judgment (mis-cited as para. 153) as requiring him to consider the probative value C3’s evidence might have as regards counts 1 to 20 in light of the issues of fact to be determined by the jury. These included any issues arising from defences which might realistically be relied on by the appellant. He identified those defences as being that the 'games' had been misconstrued and were indeed innocent games with no intention to engage in sexual touching and/or that the evidence of the complainants was simply untrue. He regarded the evidence of C3 as potentially probative on both of these issues. It had significant evidentiary value regarding counts 19 and 20, and less, but still some, evidential value regarding counts 1 to

18. He did not regard the prejudicial effect as being out of proportion with the true evidential value of C3’s evidence.

27. In reaching his conclusions the trial judge looked at the relationship between counts

19 and 21 (i.e. the sexual assault of C2 at her sibling’s 21st and the sexual assault of C3 after a social function). He acknowledged that there were “some distinctions” but also saw “some significant similarities” between these counts. He then went on to say: – “So, that's a matter of degree and of course, where precisely the similarities contended for sit on the spectrum, between complete dissimilarity at one end, being of the same nature somewhere closer to the middle, and being strikingly similar at the other end, is not really a matter for me to express an opinion on at this stage. I'm operating solely by reference to what is set out in the witness statements. What's important for me to conclude is it cannot be said that they are completely dissimilar. I conclude, at any rate, that it must be said on the state of the material before me, as it stands, I’m not hearing evidence, I’m simply looking at statements in the book of evidence and statements made at interview by [the appellant] although the latter immaterial for this purpose, that there are the same or similar accusations made against [the appellant] by [C2] on the one hand and [C3]on the other”. As regards the relationship between counts 20 and 22 the trial judge described these offences as “especially brazen” because they both took place in a vehicle driven by the parent of the complainant. He went on to say: – “The nature of the sexual assault in terms of the specific detail may be distinguished. The ages of the complainants may be distinguished, but it seems to me, it cannot be said that these are not offences of a similar nature or of the same nature by reference to the spectrum that I've already alluded to. It seems to me that ultimately, the degree of similarity found to exist and hence the probative value of the evidence concerned would ultimately be a matter for the jury. All that I must be satisfied of is that the threshold of offences of the same nature has been met, and for the reasons that I've given, I am satisfied it has been”.

28. The appellant argues that the trial judge applied a test of the charges “not being completely dissimilar” which he contends does not reflect the standard posited by O’Malley

J. in para. 193(b) of Limen which is that the charges must be “of the same nature”. In our view the trial judge did not apply a test of the charges “not being completely dissimilar”. At various points in his ruling he correctly identifies the need for the charges to be of a similar nature. Thereafter the degree of similarity (or lack thereof) goes to the probative value of the fact that a number of people have made the same or similar allegations against the appellant. He teases out the degree of similarity firstly between counts 21 and 22 and counts

1 to 18 inclusive and then more specifically between counts 19 and 21 and counts 20 and

22. As regards the former he acknowledges that the charges are similar in nature in the sense that they are all sexual assaults but notes that sexual assaults can vary in nature. He describes “very broad similarities” and “significant differences” between these groups of charges (i.e. counts 1 to 18 and counts 21 and 22). However, he was satisfied that there were “very significant similarities” between counts 19 and 20 and counts 21 and 22 – which he felt were “effectively the same or similar” accusations.

29. That is the context in which, when dealing with the relationships between counts 19 and 21, he looks at a spectrum ranging from completely dissimilar to strikingly similar with “being of the same nature” somewhere in the middle. By saying that the charges are not completely dissimilar, the trial judge is placing the relationship between them in that middle area – i.e. being of the same nature. The phrase “it cannot be said that they’re completely dissimilar” cannot be taken in isolation as if it were posited by the trial judge as a legal test. It clearly was not. It was used as part of his explanation of the potential degree of similarity that might be present in circumstances where he was clearly applying the test or standard in Limen, i.e. that the accusation must be “of the similar nature” and looking at the level of similarity to ascertain the probative value of having evidence on all counts before the jury. Although his comments need to be read in context, when that is done, it is clear from his comments on the relationship between counts 20 and 22 that the correct test has been applied.

30. In responding to this issue, counsel for the DPP suggested that the fact that the allegations made by all three complainants were charged as counts of sexual assault was presumptively enough to establish that they were of a similar nature. However, he did not rely on the mere fact that all allegations were charged as counts of sexual assault in contending that counts 21 and 22 had been correctly joined to the indictment. He identified a number of similarities between the accusations in that all of the offences involved unwanted, non-consensual sexual touching of children and they all took place in a small social circle which revolved around C2’s family home where the appellant was treated as a family member. It was the appellant's relationship with C2’s family which gave him access to all of the victims, including C3. The fact that one of the complainants was older than the other two was not, he submitted, a material difference in circumstances where the nature of the offending was similar.

31. This is not a case in which the court is asked to treat all of the allegations against the appellant as being “of a similar nature” merely because all were charged as sexual assaults under section 2 of the 1990 Act and, consequently, we do not have to determine if that fact, on its own, would have been sufficient. There were both similarities and dissimilarities between the offences charged under the various counts. However, as the DPP correctly pointed out, it is no longer necessary to show a “striking similarity” between the allegations made by multiple complainants in order for them to be properly joined in a single indictment. Interpreting a requirement that the allegations be “of the same nature” so stringently as to effectively require them to be strikingly similar would be inconsistent with the judgment in Limen. We agree that the requirement that allegations be “of the same nature” cannot be equated with a need to show “striking similarities” between them.

32. Further, it does not automatically follow from the fact that charges are joined in a single indictment that the evidence in relation to any one charge will be admissible in relation to any other charge. In each case it is necessary for the trial judge to consider the evidence relevant to each of the charges and to advise the jury appropriately on what evidence they should and should not consider. In this case the trial judge charged the jury very carefully and we note that no requisitions were made on his charge and neither does any ground of appeal relate to it.

33. In all of the circumstances we are not satisfied that the appellant has shown that any error was made by the trial judge in refusing to sever counts 21 and 22 from the indictment. Nor has the appellant shown that prejudice was caused to him disproportionate to the probative value of any evidence led on charges 21 and 22. In all of the circumstances this ground of appeal must fail.

Ground 2: Doli Incapax

34. The date range covered by counts 4, 5, 6, 12, 13 and 14 – all counts on which the appellant was convicted – cover periods when the appellant was under 14 years of age. He was aged between 11 and 15 in respect of counts 4, 5 and 6 and aged between 12 and 17 in respect of counts 12, 13 and 16. As the prosecution was not in a position to prove beyond a reasonable doubt that any of the alleged acts the subject of these counts definitely occurred after the appellant’s 14th birthday, he was entitled to be treated as if he were under 14 years of age in respect of all of them.

35. At common law a child under the age of 7 was deemed incapable of committing a criminal offence. A child between the ages of 7 and 14 was presumed to be incapable of committing a crime. This presumption was described as doli incapax – literally incapable of deceit or wrongdoing. However, this presumption was rebuttable by the prosecution adducing sufficient evidence on which a jury could be satisfied beyond a reasonable doubt that the child had the necessary criminal capacity. The test by reference to which the child’s capacity had to be established was set out in R v. Gorrie (1919) 83 JP 136 which required it to be proven that, at the time the offence was committed, the child knew not merely that what they were doing was wrong but that it was gravely or seriously wrong. R v. Gorrie was approved in this jurisdiction in KM v. DPP [1994] 1 IR 514.

36. The rebuttable presumption of doli incapax was abolished by s. 52(3) of the Children Act 2001. It was replaced by a provision (s.52 (1)) which stipulates that children under the age of 12 cannot be charged with a criminal offence. This is subject to a limited exception in the case of 10- or 11-year-olds who commit certain serious offences. As it happens, the listed offences do not include the offences with which this appellant was charged. Section

52 of the 2001 Act does not suggest that the abolition of doli incapax was retrospective.

37. As the offences with which the appellant was charged were committed before the relevant portions of the Children Act 2001 came into force in 2006, s. 52 did not apply and instead the common law presumption of doli incapax continued to apply to his case. This was accepted by both parties. It was also accepted that as it had not been shown beyond a reasonable doubt that the offences were committed after the appellant’s 14th birthday (in June 1998), the onus lay on the prosecution to establish that the appellant knew that the conduct constituting the offences was gravely or seriously wrong. The issue raised in the second ground of appeal is whether that threshold was met.

38. In a case where an accused is still a child at the time of the trial, the court and the jury can be assisted regarding the child’s understanding of their actions by the expert evidence of a psychologist or other suitable professional. However, evidence of this nature will not be available where there is a delay in the making of the complaint such that the accused is an adult before their understanding of their actions, carried out many years earlier as a child, comes to be examined. Consequently, the court must look to the nature of the offences, the manner in which they were carried out and all of the surrounding circumstances to ascertain whether there is sufficient evidence to allow a jury conclude that the accused, as a child, understood that his conduct was gravely or seriously wrong.

39. The appellant applied for a direction on this ground in respect of all of the counts between numbers 1 and 18 on the indictment at the close of the prosecution case. The argument made on his behalf focused heavily on the evidence of C1 and C2. Counsel identified those portions of the evidence in which they described the events as involving them “playing” with the appellant and the nature of the “games” he played with them. He relied on passages of the evidence in which those complainants had stated that they “treated it as if someone had caught us in a game of catch” or described the games as a “jokey, scary, laughy kind of thing” and that they regarded the appellant as more “annoying” than as a sexual predator.

40. Before we return to the trial judge's ruling and whether the prosecution had discharged the onus of proof under R v. Gorrie, we wish to make the following observation. C1 and C2 were aged between approximately 7 and 11 years when the relevant offending occurred. The appellant was five years older than them. Whether the appellant understood his conduct to be gravely or seriously wrong could never be established by reference to the understanding of children who were at all material times significantly younger than he was. The case made by the prosecution was that the appellant abused these children under the guise of playing games with them, all of which started with relatively innocuous touching or tickling but culminated in wholly inappropriate sexual touching. It does not follow from the fact that the younger children did not appreciate the true nature of these ‘games’ that the appellant also lacked an understanding of the seriousness of his conduct.

41. The trial judge held that there was sufficient evidence in respect of each of the relevant counts to permit the jury to be satisfied beyond a reasonable doubt that the appellant knew his conduct was seriously wrong and not just naughty or mischievous, depending of course on the view jury might take of the evidence. He accepted features of the evidence that had been pointed out by the prosecution as sufficient in that regard. These features included the fact that the touching of C1 and C2 was done by the appellant in a way that was not noticeable to C2’s brother or any other person present; the touching was done covertly rather than openly and in the house the touching was always done when the appellant was alone with C1 and C2. On that basis the trial judge was satisfied that there was evidence on which it was open to the jury to infer that the appellant knew his conduct was seriously wrong regardless of what the victims, as very young children, thought was happening at the time.

42. Although not mentioned by the trial judge other features of the evidence are also capable of supporting the inference that the appellant knew his conduct was seriously wrong. His friend, C2’s brother, never participated in any of these ‘games’. The ‘games’ were never played in an open area such as a yard or garden. They were always played under a cover whether of water or bubbles, a blanket on the sofa or bed clothes. The appellant argues that he did not contrive the environment, nor did he seek to isolate the girls – factors which feature in some of the case law to which the court was referred. This is correct so far as it goes, but in circumstances where the offending in the house occurred when the girls were invariably alone it merely indicates that the offending was opportunistic rather than planned. It does not suggest that the appellant did not understand his conduct to be seriously or gravely wrong.

43. The trial judge addressed the appellant's criminal capacity in his charge to the jury and explained that they had to be satisfied beyond a reasonable doubt that at the time the relevant acts were carried out the appellant knew they were gravely or seriously wrong. No requisition was sought by the defence and no issue regarding the trial judge’s charge has been raised on this appeal.

44. The appellant points to the absence of factual circumstances which were present in other cases to argue that the evidence was insufficient to leave to the jury. For example, in KM v. DPP the accused, a 13-year-old who had sexually assaulted his younger cousin, had told her that he would kill her if she told anyone.

45. In DPP v. T.McC. [2022] IECA 268 the accused was aged between 12 and 14 when he raped and sexually assaulted his younger sister. During one of the incidents complained of, the accused was interrupted by an older sibling and protested “it’s not, it’s not”. This was treated as indicative of an awareness on his part that he was doing something seriously wrong. However, it is clear from the judgment of Kennedy J. that this was not the only factor relied on by the prosecution in T. McC. In addition to the complainant’s distress, she noted that the trial judge had also identified “the surreptitious manner of the offence” which took place in “an area which was somewhat private”. Kennedy J. also held that while the nature of the offending “does not automatically prove the necessary capacity” it is a factor which may be taken into consideration.

46. We do not accept that the trial judge’s ruling on doli incapax represents a fundamental error of principle. It is not necessary that the prosecution establish the existence of something akin to a threat, an admission or a protestation in order to establish that an accused child knew his conduct was seriously or gravely wrong. Depending on the circumstances of the case, an inference may be drawn from all of the evidence that an accused child knew his conduct was seriously or gravely wrong. Those circumstances can include the nature of the offending, albeit that the nature of the offending will rarely be sufficient of itself to establish the necessary understanding on the part of the child. We are satisfied that there was sufficient evidence in this case from which such an inference could be drawn by a properly directed jury. As noted, no issue has been taken as to the direction given by the trial judge to the jury on this issue.

47. In these circumstances this ground of appeal must also fail.