F C -v- Kirby & Dpp, [2005] IEHC 445 (2005)

Docket Number:2002 374 JR
Party Name:F C, Kirby & Dpp
Judge:Mac Menamin J.
 
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2005 IEHC 445THE HIGH COURT

[Record No. 2002/ 374 JR]

JUDICIAL REVIEWBETWEENF.C.APPLICANTAND

JUDGE BRIAN KIRBY AND THE DIRECTOR OF PUBLIC PROSECUTIONSRESPONDENTSJUDGMENT of Mr. Justice John MacMenamin delivered the 11th day of February 2005.

The background to these proceedings has already been outlined in the judgment delivered on the same day as this in the case of B.C. v. Judge Brian Kirby and The Director of Public Prosecutions.

The applicant in these proceedings was born on 9 December 1936 and is now 67 years of age. He has lived in a semi rural area close to a large city since 1969 where he worked as a builder until his retirement. He is married to S.C. and has six children.

The complainants

As far as the applicant is concerned there are seven complainants who make allegations against the applicant. These are Mrs. M.C., a sister-in-law of the applicant; K.N.C., a niece of the applicant; Mo.C., a nephew of the applicant; R.C. Junior (hereinafter 'R.C. Jnr.'), a nephew of the applicant; W.C., nephew of the applicant; L.C., niece of the applicant; and C.K. who is unrelated.

First complainant, Mrs. M.C.

Mrs. M.C. was born on 7 December 1943. She is also a complainant in the case of B.C. She is the sister-in-law of the applicant, being married to R.C. who is also an applicant in separate proceedings heard by the court. There are two offences alleged. These are of rape which is alleged to have been committed on two separate occasions on 1 August 1972 and 31 August 1973. On the latter occasion the complainant alleges that she was pregnant.

The complaints on foot of which these charges proceed were made to the Gardaí on 12 July 1999. Further statements were made on 26 July 1999 and also on 18 October of that year. In these statements the complainant describes an incident which occurred in the back of the applicant's van in a somewhat isolated area. In the course of this incident the complainant alleges that she was raped by the applicant.

The second incident is alleged to have occurred in the complainant's matrimonial home. The applicant is stated to have called by the house on a Saturday. At the time the complainant was pregnant. She states that she was wearing a maternity dress. He allegedly held her against a wall, stated "I can have you at any time I want" and thereafter had penetrative sexual relations with her. The complainant states that she was crying shouting and screaming at him. After the incident it is alleged the applicant said "I'll be back any time that I feel like it".

The gravamen of the alleged offences was set out in the first statement of 12 July 1999. The subsequent statements relate to alleged offences committed by the applicant relating to the children of the applicant, R.C. Jnr. and W.C.

1999 was not the first occasion upon which this complainant had communicated with the Gardaí and other persons on matters appertaining to sexual abuse. It appears from the evidence that Mrs. M.C. discussed alleged sexual abuse with her daughter K.N.C. in or around 1984. She also made complaints against the applicant to other persons not members of An Garda Siochana between the years 1982 and 1988. (These persons included, as she recollects, her daughter K.N.C., L.C., a schoolteacher and another acquaintance.) Reference to these will be made below. However at no stage prior to 1999 does it appear that the complainant made any mention to any of those persons of the fact that she had been raped by the applicant.

It is stated on behalf of the applicant that earlier complaints may have been made by Mrs. M.C. regarding alleged sexual abuse of her children R.C. Jnr. and W.C. in the year 1984. The Gardaí are unaware of any such allegation and there does not appear to be any documentary evidence of this. While it is stated to have emerged from the statement of Mrs. M.C., I do not believe there is such evidence of a 1984 complaint.

It is clear however that on 19 December, 1986 the evidence discloses that M.C. did make a complaint to the Gardaí. In this, she alleged that the applicant had sexually abused her sons, W.C. and R.C. Jnr. These alleged assaults are stated to have taken place two years prior to the year of complaint i.e. in or about 1984. The applicant F.C. is alleged to have taken the family and the complainant out to S. A. to visit R.C. her husband, who was then serving a sentence there. In the course of this visit it is alleged that F.C. took R.C. Jnr. and W.C. for a walk in a wooded area and thereafter committed sexual assaults upon them. In the case of W.C. when the matter came to Mrs. M.C.'s attention he allegedly stated that such incidents had occurred a few times before. In the case of R.C. Jnr. he allegedly stated that such an event had occurred on a good number of times.

Mrs. M.C. then contacted the Gardaí at her local Garda station and informed them of what had occurred. She stated that when F.C. called to her house: "I confronted him about the incidents and he denied it … my husband pleaded with me for his mother's sake not to proceed any further with the matte … I called to S- Station along with F. and said I was dropping the allegations against him".

Mrs. M.C. went on to state that about four weeks prior to her making the statement on 19 December, 1986, her husband was in bed and she was up talking to him when W.C. came in and said that F.C. had interfered with him again. She questioned him and he told her the same story as was told to Sergeant Keating in his statement. It may be taken therefore that the actual complaint made on 19 December, 1986 was made in relation to an alleged assault on W.C.

In the course of an affidavit sworn on 24 October 2003, Mrs. M.C. says that the reason she withdrew the statement made on 19 December, 1986 was that her husband R.C. told her to drop the charges after the applicant "S.C." had come to her house. I am satisfied this is an error. Mrs. M.C. is married to R.C. F.C. is married to S.C. The thrust of this particular allegation is that F.C. accompanied by his wife, S.C., came to visit the complainant and her husband, R.C., in the house and that R.C. after an exchange in the house told her to drop the charges. Some further light on the circumstances of the withdrawal may be gleaned from the fact that in the course of his statement R.C. Jnr., their son, describes an alleged serious assault upon him by the applicant following which he was brought to hospital for treatment. Thereafter his mother brought him down to the local Garda station where he made a statement. He thought W.C., his brother, did as well. He goes on to state "however my father made us withdraw it, he put pressure on Mum, he beat her up over it". He also states in his statement (made 11 June 1989) the applicant "had called to the house a few times - mainly to pressure them (meaning his parents) to drop the charges which they did".

On 25 February 1987 the complaint made by Mrs. M.C. on 19 December 1986 was withdrawn.

The statement reads - "second statement of Mrs. M.C. (address) made to Sergeant John J. Keating at S-Garda Station on 25th February, 1987 at 10.10 p.m.

I wish to withdraw the allegations in the statement which I made against my (sic) brother-in-law F.C. (address) which I made in writing to Sergeant K. on 19/12/86. I do not wish to pursue the matter any further. This statement has been read over to me by Sergeant K. and is correct.Signed …. M.C. witness (John J. Keating Serg. Date …. 25/2/87").

The timing of this statement is 10.10 p.m. In the course of the statement the complainant did not make any mention of rapes on her by the applicant.

On the same date as the complaint made by Mrs. M.C., Sergeant K. also took a statement from W.C., her son. In the course of this statement he describes the alleged incident which occurred in "A.". I infer this relates to S. A.. At the time W.C. would have been aged about 6 years. He describes a sexual assault upon himself by the applicant. Thereafter the applicant is alleged to have said "don't tell anyone about this, don't tell your Mammy or your Daddy and I'll give your money". That night, according to the statement, W.C. told his mother what had happened.

In the course of the same statement of 19 December, 1986, W.C. describes a further assault taking place in a toilet of a public house in the same general area. Thereafter the applicant is alleged to have said to the complainant "don't tell anybody". W.C. says he did not tell his mother or father what had happened on that occasion.

W.C., also in the course of his statement, describes a third sexual assault which allegedly occurred in a shed in premises where the applicant, F.C. and R.C. Jnr.'s father (who is the applicant R.C.) were working. He states that about a week afterwards he told his mother and father what F.C. had done to him. On 29 January, 1987 K.N.C., Mrs. M.C.'s daughter, made a complaint to the Gardaí (Garda Eileen Clare Kavanagh) wherein she described assaults allegedly committed upon her by B.C. In the course of that she also makes a reference to alleged abuse by F.C. in brief terms.

The latter statement was withdrawn on 26 February, 1987. The withdrawal statement reads -"statement of K.C. (she is now K.N.C.) of (address) made on 26th February, 1987 at her home at 10.50 p.m. -

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I do not want to go ahead with the prosecution of the case, Re: statements which I gave on 29th January, 1987 at (S)-Garda Station. I don't fell (sic) that I can go through with it. I have read over this statement and it is correct."Signed K.C.Witness Eileen Kavanagh Ban Garda 00398M (87) "W" date 26th February, 1987.With regard to the alleged incident in S. A. the matter is also dealt with in the statement of R.C., whose statement is exhibited in the affidavit of Detective Sergeant Byrne. R.C. states that when he was sent to S. A. …"one Sunday my wife, (the applicant) and all the kids came down to see me. I remember (the...

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