The case against a former hospital consultant charged with 38 counts of indecent assault on males is to be referred to the Supreme Court for a case stated on a number of legal points.
The request for Judge Bryan O'Shea to ask for the case to be stated was made by Mr Patrick McCarthy, for the State, after a plea and bar was made by the defence when Mr McCarthy said the State wanted to arraign the accused on 11 charges relating to seven complainants.
During day-long legal argument at Dundalk Circuit Court yesterday, Mr Felix McElroy, defending, said the sentencing provisions of the Offences Against the State Act, 1861, under which the charges are brought, fell foul of the Constitution because they provide for a sentence of 10 years if the victim is male and two years if the victim is female.
"If [the accused] was charged with indecent assault on a woman the maximum sentence he would be facing would be two years, but he is in a completely disadvantageous position and facing 10 years in prison by virtue of one fact only, the gender of the complainant who alleges indecent assault.
"There are not two separate crimes of indecent assault; there is one crime. I say this is discriminatory and impermissible and does not survive the enactment of the Constitution," he said.
He also argued that the presiding judge had jurisdiction to decide the sentencing provisions and referred to a number of previous judgments.
After extensive and complex argument, Judge O'Shea said it was appropriate to, at the request of the DPP and Attorney General,seek a case stated.
The case was adjourned to Kilkenny Circuit Court on November 4th.