The Supreme Court yesterday refused to grant orders preventing the trial of a Cork doctor on 237 charges of indecent and sexual assault against 42 former patients, all female and aged between 11 and 21 at the time of the alleged assaults.
Dr James M. Barry (78), of Lauriston Lodge, Glanmire, is alleged to have committed the assaults from 1966 to 1995. He had appealed against the High Court's decision of March refusing to grant an order restraining his trial on grounds of delay, abuse of process and fundamental unfairness.
Dismissing the appeal yesterday, the Chief Justice, Mr Justice Keane, with whom Mr Justice Murray and Ms Justice McGuinness agreed, said Dr Barry was first charged with the offences in November 1997.
The first complaint appeared to have been made in May 1995 by a female who said she was indecently assaulted by Dr Barry who had made video recordings of her in the nude or semi-naked on a number of occasions.
In November 1997, Dr Barry secured leave to take judicial review proceedings stopping his trial. Those proceedings were not heard by the High Court until January 2002, and judgment was given in February 2003.
Mr Justice Keane said Dr Barry was complaining of three separate periods of delay - from the alleged assaults to the making of complaints (1966 to 1995); from the making of complaints to the issuing of criminal proceedings (1995 to 1997); and from the institution of the judicial review proceedings to their determination (1997 to February 2003).
On the delay between the alleged assaults and complaints, Mr Justice Keane noted that, after the name of Dr Barry was published in the media in 1995 due to civil proceedings initiated by him, gardaí had received some 600 complaints from women claiming to have been indecently or sexually assaulted.
An investigation was held and 42 statements of complaint were made.
The women's complaints included accounts of being asked to remove all or part of their clothing and of being subject to having their breasts touched and to internal vaginal examinations.
Some complainants explained their delay in making complaints as due to their belief the actions of Dr Barry were necessary, their trust in him as a doctor , their relative youth and inexperience and, in some cases, fear or, at least, nervousness about his reaction to their hesitation in doing what he asked them to do.
On the assumption that the accounts in the complainants' statements were true, Mr Justice Keane said he had no doubt their failure to complain to their parents or gardaí at the time was perfectly understandable.
This was a case where the alleged sexual intimacy was carried out by the applicant under the guise of medical examination and, give the complainants' ages, it was not surprising, if their accounts were truthful, they would have been at least uncertain as to whether what he was doing was wrongful, let alone criminal.
Mr Justice Keane held the High Court was entitled to accept that it was publicity in 1995 which alerted the complainants to the fact that what allegedly happened might have been criminal.
The judge also said there was no evidence Dr Barry would be handicapped in his trial by the absence of medical records or the non-availability of relevant witnesses.
Old age and ill- health were not in themselves grounds which would justify restraining the continuation of the prosecution.
On the second period of delay, from 1995 to 1997, the judge said he was satisfied that delay was not so unreasonable as to violate Dr Barry's right to a speedy trial. The gardaí had had to investigate over 600 complaints and took statements from 146 persons.
Expert medical evidence also had to be obtained.
On the third period of delay - from the taking of judicial review proceedings in 1997 to their determination in February last - Mr Justice Keane said much of the delay was due to a protracted discovery process.
Some of that delay was solely the responsibility of Dr Barry or his legal advisers as it resulted from their persistent refusal to comply with directions from the High Court about specifying what documents they were entitled to inspect and over which the DPP claimed privilege.
Some of the delay was also due to appealing against three High Court decisions relating to the abolition of the offences of sexual and indecent assault and some was the result of adjournments sought by the DPP during the protracted discovery process.
There was also a delay of about a year between the conclusion of the High Court hearing and the delivery of judgment.
Rejecting Dr Barry's argument that the conduct of the prosecution amounted to oppression, Mr Justice Keane said he was satisfied none of the matters relied on by Dr Barry in this regard constituted a violation of Dr Barry's constitutional or other rights which would justify the prohibition of his prosecution.