A former Cork GP found guilty of indecently assaulting a 15-year-old female patient 27 years ago is seeking a Supreme Court appeal.
Kevin Mulcahy (aged 57), of Creggan, Lombardstown, Mallow, Co Cork, had pleaded not guilty to a single charge of indecently assaulting the girl while on call to her family home on December 23, 1989.
He was found guilty by a jury after a retrial at Cork Circuit Criminal Court following 39 minutes of deliberations and he was jailed for two years by Judge Seán Ó Donnabháin on November 25, 2015.
Mulcahy had an appeal against conviction dismissed last October but was resentenced to 12 months imprisonment following a sentence appeal.
During case management procedures in the Court of Appeal today, Mr Justice George Birmingham directed there be a legal aid certificate to cover the hearing of a Supreme Court appeal.
Giving judgment on Mulcahy's unsuccessful appeal against conviction in October, Mr Justice John Edwards said the doctor had regularly attended the home of the complainant to treat her mother, who had terminal cancer.
On one of these visits, the complainant was suffering from a head cold of sorts and while examining her, Mulcahy touched her vagina on the outside of her clothing for some minutes.
Mulcahy was arrested and interviewed in 2011 on foot of a complaint of indecent assault.
When asked if he recalled the girl being a patient of his, Mulcahy said he had a pre-prepared, typed statement in which he said the allegations were “blatantly false”.
Following the signing of the statement, he was asked a number of questions and in reply said “I have nothing to say other than what's written in my statement”, the judge said.
These additional questions and answers were put before the jury, which Mulcahy's barrister, Blaise O'Carroll SC, submitted breached his right to silence and irretrievably tainted his credibility in the minds of the jury.
Mr Justice Edwards said it was clear Mulcahy did not elect to say nothing but to reiterate that he was relying on his statement.
The supplementary questions merely afforded him the opportunity to add to or change the statement after hearing the specifics of the allegations for the first time or being reminded of them – it was unclear which, the judge said.
In relation to the second ground of appeal, that the trial judge failed to warn the jury about the danger of convicting in the absence of corroboration, Mr Justice Edwards said the trial judge was not asked to give a corroboration warning.
Furthermore, when the trial judge said he “half expected” to be asked to give a corroboration warning and said he wouldn't have given one anyway, defence counsel said “thank you, Judge”, Mr Justice Edwards said.
He said the essential justice of the case did not require the court to intervene.
Mr Justice Edwards, who sat with Mr Justice George Birmingham and Mr Justice Alan Mahon, said the appeal must be dismissed.
The Court of Appeal heard that Mulcahy is no longer practicing