The Supreme Court has dismissed an appeal by a Cork doctor who sought to stop a prosecution involving 237 charges of indecent or sexual assault against 43 women. The court affirmed the High Court’s refusal to grant an order prohibiting further steps in the prosecution.
The judgment, delivered by Chief Justice Keane on 17 December 2003, concerned judicial review proceedings brought by James M. Barry. The allegations were said to span 1965 to 1994, and the complainants were aged between 11 and 21 at the relevant times. The charges were brought in the District Court on 30 November 1997.
Barry argued that delays had created a real risk of an unfair trial and that the handling of the case amounted to oppression and fundamental unfairness. His appeal also challenged the use of complainants’ statements in affidavits filed during the judicial review proceedings. The Supreme Court rejected that evidential objection, holding that the statements could be considered in those proceedings.
On delay in reporting, the court said it was reasonable to infer that the complainants’ trust in Barry as a doctor, their age and uncertainty about what was normal in a medical examination explained why they had not complained earlier. It stressed that this reasoning proceeded on the assumption that the complaints were truthful; it was not a finding that Barry had committed the alleged conduct.
The court also held that the period between the first complaints in 1995 and the charges in 1997 was not so unreasonable as to require the prosecution to be stopped. Gardaí had investigated more than 600 complaints and taken statements from 146 people, and medical evidence had to be obtained. In considering delay in the judicial review proceedings, the court attributed some of it to the applicant’s failure to comply with discovery directions, some to appeals and adjournments, and some to the time taken to deliver judgment. It said the delay in delivering that judgment was not the fault of either party.
The court rejected the claim that the prosecution’s actions collectively amounted to oppression. It said the late affidavits had not prejudiced the judicial review case and that bringing all 237 charges at once was within the Director of Public Prosecutions’ powers. Whether any charge was unsupported by evidence was not for the judicial review proceedings to decide; that question could be considered by the District Court if the prosecution proceeded.
The appeal was dismissed and the High Court judgment and order affirmed. The ruling did not decide whether Barry was guilty, whether the charges were supported by evidence, or whether he should be returned for trial.