A jury of eight men and four women failed to reach a verdict in the case of a North Cork doctor accused of indecently assaulting a 15-year-old girl during a medical examination shortly before Christmas 1989.
Dr Kevin Mulcahy, aged 55, of Creggane, Lombardstown, Mallow, Co Cork, denied indecently assaulting the complainant.
After two hours and 40 minutes of trying to arrive at a unanimous verdict, jury members were directed that a 10/2 or 11/1 majority would suffice.
Judge Seán Ó Donnabháin said they could have all the time they needed, but that, in the fullness of time, they should indicate if no further time would be of benefit. Moments later they returned to declare that no verdict could be reached.
The hung jury was then discharged. The case against the accused was put back until the February sessions of Cork Circuit Criminal Court.
The complainant, now 38, said she had a chest cold or head cold at the time and that Dr Mulcahy examined her in her bedroom.
“He asked me did I know how to examine my breasts [for possible lumps]. I took off my top and my bra. I would have been naked from the waist up,” she said.
The witness claimed he carried out a physical examination of her breasts and then asked her to perform the examination on herself. She said he asked her if she had a boyfriend and if she knew what sex was.
“He started touching me around my vagina. I was clothed when this happened,” she testified.
Judge Seán Ó Donnabháin told the jury the prosecution was not alleging that any examination of the breast constituted an indecent assault and that the only alleged action constituting such an assault was the touching of the vagina outside the girl’s clothes.
In his address to the jury, the judge said they had to take into consideration that the incident assault complained of occurred 24 years ago, which posed difficulties for the defendant.
“If someone said you assaulted me last night on Grand Parade you could say I was at home watching television, or I was in the pub with someone. If they said it happened last year wouldn’t it be much more difficult to assemble your defence,” the judge said.
He said they would have to consider that it allegedly happened in 1989 and that the complaint was not made until 2010, the doctor having destroyed notes that were more than 10 years old for patients he no longer had.
“He says he has seen hundreds of thousands of patients since 1989. He has difficulty enough remembering what happened yesterday. He said this incident never happened,” said the judge.
He said the jury would have to ask themselves if it happened and also ask if it was a deliberate touching of the vagina.
After more than an hour, the jury returned to court with a number of written questions. In one they asked: “Did the defendant deny that an indecent assault took place?”
The judge reminded them of the defendant’s evidence: Mulcahy testified: “I have no recollection of what she stated here today… As far as I am concerned it never happened.”
Also read to the jury was the suggestion in cross-examination that he did touch the teenager’s vagina but simply did not recall it. Mulcahy replied, “No, she is not correct.”
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