The Court of Appeal has dismissed an appeal against conviction by an appellant identified as TMcC, ruling that a rape count was properly left for a jury to consider under the doctrine of doli incapax.
The appeal concerned only count 3 of a six-count indictment. The appellant had been convicted on that rape count and a sexual assault count. The alleged offences dated from between 24 November 1995 and 17 January 1998, when he was aged between 12 and 14. The prosecution accepted at trial that it could not prove the rape occurred after he turned 14, so the presumption that a child under 14 lacked criminal capacity applied.
The issue was whether there was evidence from which a jury could find beyond reasonable doubt that, at the time of the alleged conduct, the appellant knew it was gravely or seriously wrong, rather than merely naughty or mischievous.
The trial judge withdrew counts 1 and 2, which concerned an alleged bathroom incident involving the complainant and the appellant’s older brother. The judge refused to withdraw count 3, which concerned a separate alleged incident in a bedroom. The complainant’s evidence was that the appellant called her upstairs, pushed her onto a bed and tried to penetrate her. She said she cried and pleaded with him to stop. The alleged incident was interrupted by an older sister; the complainant recalled the appellant saying, “it’s not, it’s not, it’s not”.
The trial judge said the jury could consider three strands of evidence on capacity: the complainant’s distress after the bathroom incidents; the appellant calling her to a private bedroom, from which the jury might infer planning; and his reaction when the older sister entered. The appellant argued those matters did not show that he understood the alleged conduct was seriously wrong. The prosecution maintained that the evidence, if accepted, could support that conclusion.
The Court of Appeal held that the jury could consider the complainant’s crying after the bathroom incident, her distress and pleas during the bedroom incident, the circumstances in which she was called to the room, and the appellant’s reported reaction to the interruption. The court said the nature of the alleged offence alone did not establish capacity, but could be considered alongside the other evidence.
The court rejected both appeal grounds: the challenge to the refusal to direct an acquittal on count 3, and the challenge to the jury being allowed to consider evidence relating to counts 1 and 2 in assessing capacity for count 3. It dismissed the appeal. The judgment did not determine guilt on the separate allegations in counts 1 and 2, which had been withdrawn from the jury.