There was applause at the High Court yesterday when a judge directed that the trial of a consultant surgeon on charges of indecent assault against 11 male patients, aged from nine to 19 years, should proceed.
Some of the alleged victims and their relatives clapped after Mr Justice Geoghegan dismissed an application by the surgeon for an order prohibiting his trial on grounds of delay in making complaints about incidents alleged to have taken place between 15 and 34 years ago. The first complaint was made in 1994. The judge said the applicant was at all material times a consultant surgeon at a well-known provincial hospital.
A consultant surgeon is "a formidable and, one could say, an intimidating figure", he said. Some complainants had said they did not know that handling of their genitals, in some cases up to masturbation, was not part of normal medical procedures. Some had come from homes where such matters could not be discussed and others felt their allegations would not be believed.
In his view, the case raised no new questions of law from a number of sexual abuse cases recently dealt with by the Supreme Court where prohibition was also sought on grounds of delay but was refused.
Mr John McMenamin SC, for the surgeon, said he would take instructions on whether to appeal the High Court decision. A stay on the surgeon's trial applies in the event of an appeal.
The trial was originally set for hearing in the District Court but yesterday Mr Maurice Gaffney SC, for the DPP, said he had been instructed to say, in the event of the High Court deciding the trial should proceed, the DPP was likely to ask the District Court Judge to reconsider his decision to accept jurisdiction. In his judgment on the two-day hearing of the surgeon's application, Mr Justice Geoghegan said it was submitted, because of the delay in making the complaints, there was a real and substantial risk of an unfair trial.
He said the case raised no new questions of law and his only function was to apply the established jurisprudence of the Supreme Court. That court had stated it was clear the dominance of an older person could provide a reasonable explanation for delay in making a complaint of sexual abuse and that continuing dominance was not the only factor that could inhibit an early complaint. Other factors included the relationship between the parties, the place where the alleged abuse occurred and the nature of the abuse.
He accepted as credible evidence from a psychologist that there were psychological factors inhibiting early reporting of the alleged abuse. He had separately considered the claims of each boy and noted the psychologist was not cross-examined and that evidence was not adduced to contradict him.
The judge said the Supreme Court had also stated if there were added difficulties imposed on an applicant because of delay, the court should consider who had caused those difficulties. If the applicant had caused the difficulties, then he could not complain about them.
In this case, the applicant would have had the same difficulties defending the charges against him if his trial had taken place within the normal timespan.
Earlier yesterday, in submissions on behalf of the DPP opposing the application, Mr Gaffney said recent Supreme Court decisions amounted to a finding that sexual abuse can produce results inhibiting complaints about that abuse for a very long time. The Supreme Court had stated inhibition was particularly found where there was dominance exerted by the alleged abuser and had also indicated that, even where overt dominance was lost, there were consequential effects of this which could explain delay in making a complaint.
Asked to respond to submissions by the surgeon that any dominance in the present case was of a transient kind and not continuing, Mr Gaffney said the fact there is dominance at the time the alleged abuse took place has lasting effects, such as unwillingness to complain.
The court had to decide whether there was a real risk of an unfair trial. Counsel submitted there was no such risk. It was alleged the offences occurred in secret, in a hospital or surgery. The complainants alleged they occurred, the only defence could be that they did not.
Replying for the surgeon, Mr McMenamin said the test of whether there is a real risk of an unfair trial must be rigorously applied by the courts. For the courts to find a trial should proceed because the delay in making the complaints was a result of the acts of an applicant, was effectively a finding that abuse had occurred and was a fundamental undermining of the presumption of innocence.