An 80-year-old former primary school principal has appealed his conviction for indecently assaulting 11 women over three decades while they were pupils of his in west Clare.
Patrick Barry, of Well Road, Kilkee, Co Clare, had pleaded not guilty to 67 charges of indecently assaulting the 11 women on dates between 1964 and 1985 while they attended Moyasta National School as pupils.
Barry was found guilty by a jury of 59 counts of indecent assault and not guilty of the remaining eight counts by direction of the trial judge, Judge Gerald Keyes.
He was sentenced to 11 years' imprisonment with the final five suspended by Judge Keyes at Ennis Circuit Criminal Court on November 19th, 2014.
Relevant counts
Barry appealed his conviction in the Court of Appeal on grounds that particulars on the indictment against him did not correspond to relevant counts.
His barrister Roderick O’Hanlon SC said his client’s defence and cross examination rights were materially affected by the absence of particulars in the indictment.
Had they corresponded, Mr O’Hanlon had said at an earlier unsuccessful bail hearing, there could have been up to 300 counts on the indictment.
Mr O’Hanlon said the matter was highlighted early in the trial when he had attempted to allow the opportunity of increasing the number of counts or by severing the indictment.
He further submitted that the prosecution’s failure to provide details of people interviewed by gardaí who did not go on to make complaints had prejudiced Barry.
The possible discomfort for those people, who might have come to court to say what their neighbour said about Barry was untrue, could have been dealt with by the defence, Mr O’Hanlon said.
Mr O’Hanlon further submitted that the trial judge erred in permitting the matter to go to the jury because of the delay and the prejudices which have been brought up by virtue of the delay.
There was no explanation for the delay, Mr O'Hanlon said. "Save for one complainant who indicated 'Who would believe us?'," Mr Justice George Birmingham remarked.
Mr O’Hanlon said the evidence would be radically different if it had been promptly dealt with. Instead, his client was left in a position where allegations were non-specific as to dates and non-specific in relation to counts.
The “teacher in the other room” would have been able to hear the nature of what was alleged to have been going on, Mr O’Hanlon said. Her evidence would have been of substantial assistance to the defence, but she had died.
The court heard the complainants made statements as a result of a Garda investigation. Mr Justice Garrett Sheehan put it to counsel that the case was very different in that regard to other cases dealing with the question of delay.
Caution needed
Mr O’Hanlon said “Yes”, but that the judge should be even more cautious to allow the case to go a jury in those circumstances.
He further submitted that some of the complainants admitted to having received counselling in respect of what had “allegedly occurred”, but the defence were refused access to notes of those sessions.
Counsel for the DPP, Anthony Sammon SC, said Barry’s arraignment on the indictment was allowed to take place without any complaint from his legal advisers.
It was only in the course of the second witness’s evidence during the trial that a difficulty was alluded to, Mr Sammon said. No application was made at that juncture, but a “John the Baptist approach” was taken “that it [the particularisation issue] might be revisited later”.
In the end, Mr Sammon said, an offer was made to look at the indictment, which should have led to a much greater number of counts. A question put to Barry’s lawyers as to whether they would like to sever the indictment was met with silence, Mr Sammon said.
Mr O’Hanlon refuted these arguments.
Bail application
Mr Sammon said the case had been extensively canvassed and there had been a bail application by Barry earlier this term, which was refused.
He added that the particularisation may have assisted the jury in terms of its deliberations, but this was a case where “if you can’t defend yourself on the facts, you attack the process”.
The 11 complainants had come to court to give evidence in the trial and they were believed by the jury, Mr Sammon said. Their evidence particularised the type of offending they were subjected to.
He said the indictment conformed to statutory provisions and the judge was vary careful to ensure the jury were completely and adequately directed.
Mr Justice George Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice Alan Mahon, said the court would reserve judgment to March 23rd next.
Barry was assisted in court by two of his sisters, one of whom sat beside him in the dock throughout proceedings.
The court heard he has poor health and impaired hearing.