A consultant surgeon facing allegations of indecent assault against 11 male patients aged from 15 to 19 has asked the High Court to prevent his trial on grounds of delay. The alleged offences are said to have happened between 15 and 34 years ago.
The application to prohibit the District Court proceeding with the trial of the surgeon is opposed by the Director of Public Prosecutions.
In court yesterday, Mr John McMenamin SC said the application for prohibition related to a series of allegations which were made from 1994 onwards. Counsel said those allegations gave rise to an application to the District Court where it was alleged the surgeon had engaged in conduct which was tantamount to indecent assault in relation to 11 former patients.
Mr McMenamin said the case was different from other delay cases. The District Judge had accepted jurisdiction and there had been no objection from the Director of Public Prosecutions. Many of the other cases involved a trial before a jury. In judicial review proceedings before Mr Justice Geoghegan, the surgeon is seeking a declaration that the delay in instituting the criminal proceedings constituted an abuse of process under the criminal jurisdiction of the District Court. He also claims a declaration that the delay has prejudiced his ability properly to defend the charges.
Orders are being sought to prohibit the District Judge from further proceeding with the summary criminal trial and to restrain the DPP from further proceeding with the prosecution. It is submitted that the delay in the institution of the criminal proceedings violates the surgeon's constitutional right to be tried on criminal charges in due course of law, pursuant to Article 39.1 of the Constitution.
It is also claimed the delay has prejudiced the surgeon's ability to properly instruct his legal advisers or defend himself against the charges. It is submitted, among other grounds, that the delay constitutes an abuse of the criminal jurisdiction or process.
Because of the delay, it is submitted that the surgeon cannot reasonably recollect material circumstances and/or facts in relation to the criminal allegations against him and cannot reasonably recollect the identity of any material witness who may be relevant to the circumstances and/or facts in relation to the criminal allegations.
The surgeon claims the delay has resulted in the criminal allegations being unreasonably vague in relation to the date of their alleged occurrence and/or the circumstances and facts in relation to them.
It is pleaded that the surgeon did not exercise a position of dominance or exert control over any of the plaintiffs to the extent that they were prevented from making a prompt report of any allegation concerning him.
The hearing continues today.