B.C v Judge Brian Kirby and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice MacMenamin |
| Judgment Date | 11 February 2005 |
| Neutral Citation | [2005] IEHC 446 |
| Docket Number | [No. 339 JR/2002] |
| Court | High Court |
| Date | 11 February 2005 |
[2005] IEHC 446
THE HIGH COURT
BETWEEN
AND
ZAMBRA v MCNULTY 2002 2 IR 351 2002 2 ILRM 506
CRIMINAL JUSTICE ACT 1999
CRIMINAL LAW (AMDT) ACT 1935 S6
CRIMINAL LAW (RAPE) ACT 1981 S10
OFFENCES AGAINST THE PERSON ACT 1861 S48
CRIMINAL PROCEDURE ACT 1967 PART 2
C (P) v DPP 1999 2 IR 25
O'C (P) v DPP 2000 3 IR 87
CONSTITUTION ART 38.1
L (P) v JUDGE BUTTIMER & DPP 2004 2 IR 506
W (A) v DPP UNREP HIGH COURT KEARNS J 23.11.2001 2001/24/6472
M (E) v DPP UNREP HIGH COURT KEARNS J 22.1.2004 2004/28/6621
H (T) v JUDGE KENNEDY & DPP UNREP HIGH COURT KEARNS J 22.10.2004
W (D) v DPP UNREP SUPREME 31.10.2003 2003/48/11781
P (P) v DPP 2000 1 IR 403
M (J) v DPP UNREP SUPREME 28.7.2004 2004/29/6677
DPP v BYRNE 1994 2 IR 236 1994 2 ILRM 91
HOGAN v PRESIDENT OF THE CIRCUIT COURT 1994 2 IR 513
DPP v QUILLIGAN 1993 2 IR 305 1992 DULJ 105
B (C) v DPP 1997 3 IR 140
O'C (J) v DPP 2000 3 IR 478
G v DPP 1994 1 IR 374
CORK CORPORATION v O'CONNELL 1982 ILRM 505
R v KENSINGTON ITC 1917 KB 486
W (T) v DPP UNREP SUPREME 28.7.2004 2004/49/11228
CRIMINAL LAW
Delay Right to expeditious trial - Complainant delay - Prosecutorial delay - Right to fair trial -- Sexual assault - Minors - Whether applicant exercised dominion over complainant - Whether reasons justifying delay in complaining - Death of witnesses - Whether applicant prejudiced - Whether return for trial defective - DPP v Byrne [1994] 2 IR 236; B v DPP [1997] 3 IR 203; PC v DPP [1999] 2 IR 25; PP v DPP [2000] 1 IR 403; PO'C v DPP [2000] 3 IR 87; Zambra v McNulty [2002] 2 IR 351; PL v Buttimer [2004] 4 IR 494 and DD v DPP [2004] 3 IR 172 followed - Constitution of Ireland 1937, Article 38 - Return for trial quashed on Zambra grounds; application for prohibition on grounds of delay dismissed (2002/339JR - MacMenamin J - 11/2/2005) [2005] IEHC 446 - C (B) v Kirby
The applicant in these proceedings was born on 14th April, 1951. He is now aged 53 years. He is involved in the building trade. He is married with three children.
Insofar as this applicant is concerned, there are three complainants who make allegations against him. They are Mrs. M.C. (sister-in-law), J.G.C. (niece) and K.N.C. (niece).
Mrs. M.C. was born on 7 December, 1943 and is the applicant's sister-in-law. She is married to R.C., also one of the applicants.
The alleged indecent assaults are stated to have taken place between 1 October, 1976 and 30 September, 1977, at a time when M.C. was thirty-three to thirty-four years old.
The complaint on foot of which these charges proceeded was made to the Gardaí on 10 June, 1999. A further statement was made by Mrs. M.C. on 18 October 1999. These complaints took place twenty-two years after the last allegation.
The complaints which are now the subject matter of the charges were not the first occasion on which Mrs. M.C. had made a complaint to the Gardaí regarding sexual abuse.
The evidence disclosed that on 19 December 1986 Mrs. M.C. visited the Gardaí in her locality. On that occasion she made allegations against her brother-in-law, F.C., also one of the applicants. These allegations related to two of her children, W.C. and R.C. Junior. These children were sons of the complainant, Mrs. M.C. and R.C. Senior. W.C. was born on 23 January, 1978 and R.C. Junior was born on 29 March, 1975. This complaint was withdrawn on 25 February, 1987, a little more than two months after it was made.
The evidence disclosed that the withdrawal of the complaint took place because her husband, R.C., told her to drop the charges after a visit to their home from F.C. and his wife S.C. After this visit Mrs. M.C., her husband R.C. and F.C. and his wife drove down to the local Garda station to withdraw the complaints. Mrs. M.C. described the encounter thus:"[F and S] arrived. They were very domineering. I put the kids out of the room (my husband) was left in the room. The four of us had a row which lasted about an hour. [F and S] maintained that there was no abuse û nothing happened. I remember screaming at them. (My husband) told me to drop the charges and “we will sort something out”. I said no but later that evening agreed to drop the charges. I don't why I agreed."
Mrs. M.C. relates in her statement in the Book of Evidence, confirmed by affidavit that she had, even earlier than December 1986, taken her daughter, K.N.C., to the same Garda Station when K.N.C. was thirteen or fourteen years of age. This visit was stated to be in relation to allegations against the applicant herein. This alleged complaint was apparently made in the year 1981 or 82. She stated that she was unsure whether these allegations were withdrawn or not. There is apparently no trace whatever of these complaints in the relevant Garda Station. There was no other evidence available on the issue in court despite strenuous efforts which were made by Detective Sergeant Byrne, the investigating Garda in these proceedings, to obtain any such information as might be material.
In the complaints made in 1999, Mrs. M.C. describes a number of incidents of indecent assault occurring in 1976. This particular date is of some importance in the light of an apparent inconsistency in the evidence regarding when the alleged abuse began. The complainant describes becoming aware that her daughter, K.N.C., was being allegedly abused by B.C. having received such information from her brother-in-law D.C., who is also an applicant. She became aware of this when K.N.C. was between thirteen and fourteen years of age, that is in the years 1981–1982.
By inference it would appear that no reference was made in the complaints of 1981/82 to allegations relating to alleged assaults on Mrs. M.C. herself. They appear to have related only to matters alleged to have taken place between the applicant and her daughter, K.N.C.
The undisputed evidence in these proceedings demonstrates that Mrs. M.C. called to the Garda Station on 10 June, 1999. Her purpose was to make a complaint which appears to have initiated a train of events and given rise to a large number of the other allegations which were made in these cases. In the course of her statement, Mrs. M.C. recounted alleged abuse perpetrated upon her by her late father-in-law, J.C. (the father of the applicants). She also described being allegedly sexually assaulted by the applicant B.C., and his brothers P.J.C. and F.C.
Mrs. M.C. furnished a further statement on 18 October, 1999. In the course of her statement contained in the Book of Evidence Mrs. M.C. described the applicant saying after the incidents"who is going to believe you?" and "whose word will anyone take, yours or mine"? He states that B.C. ceased coming to her house about a year after the assaults.
At the time of the alleged offences Mrs. M.C. was aged between thirty-two and thirty three years of age. She is now in her fifty-eighth year. At the time of her statement on 10 June, 1999 she was in her fifty-third year. At this point, a period in excess of twenty-two years had elapsed since the most proximate offence was alleged to have taken place.
In the course of submissions, the applicant contends that it is inexplicable that when Mrs. M.C. brought K.N.C. to the Garda Station in 1986 that she made no complaint in relation to any offence committed against herself. In response, she states that she only made up her mind to talk to the Gardaí after one of her sisters-in-law, J.C., made a statement to the Gardaí in 1999. This statement of J.C. does not relate to the instant case.
There is some history of the complainant having previously informed other persons regarding sexual assault allegations albeit not against herself. She informed one P. D. and his wife E. that another individual family member was abusing their son. The date of this alleged occurrence is not disclosed. By inference, Mrs. M.C. did not have this applicant in mind as being the alleged perpetrator.
Mrs. M.C. also states in her affidavit that when K.N.C., her daughter, was about four years of age, she questioned her in relation to alleged actions of her grandfather J.C. K.N.C. reported to her what amounted to an indecent assault committed by her deceased grandfather. Mrs. M.C. told her mother-in-law at that point that she would get the police. No evidence is available as to what, if anything, occurred thereafter.
"I was sexually abused by the applicant herein as set out in my statements. I had a constant fear of my husband and all of his brothers including the applicant herein. I was brought up very innocent. I never knew anything like this existed. I think that is why I did not know how to deal with it. I only made up my mind to talk to the Gardaí after my sister-in-law J.C. had made a statement to the Gardaí. I had been 34 years married to my husband .. and I got a slap in the face off (him). I told him I wasn't going into the 35th year of marriage with a fear of the C…s (name of family) I told him he was going to hear things he didn't like. He started shouting and roaring at me and that is when I dialled 999. When I saw that J.C. 's complaint was being investigated and proceedings issued I gained confidence."
It is clear from the context and also from other material which emerges that the J.C. to which Mrs. M.C. refers is her sister-in-law who is married to P.J.C., also an applicant in these proceedings.
J.G.C. is the daughter of M.C. and Je.C. She was born on 22 June, 1961. She is now aged forty years. She made a statement to the Gardaí relating to the applicant on 8th July, 1999. She was then thirty eight...
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The Victim of Historical Child Sexual Abuse in the Irish Courts 1999–2006
...song of the rape victim. MelbourneUniversity Law Review 22(2): 442–465.Cases citedB v DPP [1997] 3 IR 140.BC v Judge Kirby and the DPP [2005] IEHC 446.DPP v JO’C unreported High Court, 27 July, 2001.FC v Judge Kirby and the DPP [2005] IEHC 445.JO’C v DPP [2000] 3 IR 478.JC v DPP (6 July 200......