The Chief Justice, Her Brother And How George Gibney Got Away

at

9041156290337650gibneylawreport

From top: Susan Denham, Patrick Gageby and George Gibney; Law report on the Supreme Court hearing

The High Court judicial review in 1994 that quashed all sex abuse charges against swim coach George Gibney did not just set free a suspected paedophile.

It was a landmark decision which paved the way for similar successful actions over the next 20 years.

But it was only made possible by a judgment reached in the Supreme Court just before Christmas, 1993.

Six months earlier, Mr Gibney had been charged with 27 counts of indecency against young swimmers and of carnal knowledge of girls under the age of 15.

Seven swimmers had come forward and sworn statements to the Gardaí that Mr Gibney had assaulted them at various times between 1967 and 1981.

On July 12, 1993 Mr Gibney’s legal team, including barrister Patrick Gageby, applied in the High Court for a judicial review restraining the Director of Public Prosecutions (DPP) from proceeding with the prosecution.

A judicial review allows orders to be made against State decision-makers (including the DPP) if there is a a breach of fair procedures in the decision making process.

Mr Gibney’s legal team argued that the delay in initiating the prosecution infringed their client’s right to a fair trial.

On July 19, Justice Vivian Lavan in the High Court refused to stop the DPP from proceeding with the charges. He said that the delay did not infringe Mr Gibney’s right to a fair trial.

Mr Gibney appealed this decision to the Supreme Court.

On December 14, 1993, the Supreme Court granted Mr Gibney leave to apply for judicial review on the basis that his right to a fair trial might possibly have been infringed.

This was the first case in Ireland to recognise that delay in making a complaint of sexual abuse could preclude a subsequent prosecution.

Justice Declan Costello conducted the judicial review and held that Mr Gibney’s right to a fair trial would be infringed if the prosecution were to be proceeded with.

He granted an order precluding the DPP from proceeding with the charges.

An opportunity to appeal the decision was declined by Eamonn Barnes, then Director of Public Prosecutions.

George Gibney left Ireland – travelling first to Scotland, where he coached young swimmers, and then to America.

What went unreported at the time of the Supreme Court decision and what few outside the legal fraternity knew, least of all Mr Gibney’s alleged victims, was that Susan Denham, sister of Patrick Gageby, was on the bench that day.

Ms Denham was in ‘complete agreement’ with the majority judgement and placed her feelings on the record.

She said,

‘all persons charged or convicted of an offence are entitled to the rule of law and have constitutional rights. Such persons are also entitled to due process of law. A trial, in a court of law is not an exercise in vengeance but is a trial in due course of law in the pursuit of justice on behalf of the community.

The rule of law was the essence of a civilised society. In so far as there were, developments and knowledge in society a about issues relating to this case, these must be dealt with in a fair and just way by the courts.’

Ms Denham added that on ‘the affidavit and statement filed [in this case] it was clear that such a case had been established to meet this initial burden of proof.’

There was no objection to Ms Denham hearing her brother’s case from the Director of Public Prosecutions, represented in court by the late Eamon Leahy.

The Code of Conduct of the Irish Bar provides that:

“Barristers shall not habitually practice in a case in which their parent, spouse or near blood relative is a presiding judge.”

In O’Reilly v Cassidy, a decision of a Circuit Court judge in favour of a client represented by his daughter was set aside by a superior court.

In the United States, Australia and the United Kingdom, rules specifically provide that a judge shall not hear a case in which a family member appears for a party – a principle which is also contained in the Code of Judicial Conduct laid down by the United Nations.

Irish law is also subject to general rules of fair procedure, including the principle ‘nemo iudex in causa sua‘ (no man shall be a judge in his own cause), which provides for the quashing of judicial decisions made in ‘circumstances which would lead a fair-minded and informed observer to conclude that there was a real possibility … that the tribunal was biased’.

Last year, the Supreme Court quashed a decision of a High Court judge who had held shares in one of the companies party to the litigation in circumstances where he had mistakenly failed to disclose the full extent of that shareholding.

In this instance Susan Denham, now Chief Justice, gave the majority verdict.

She said objective bias was a matter not just for the parties, or the trial judge, but brought in issues regarding

“the fundamental concern for the manifest impartial administration of justice and the confidence which the people rest in the judiciary.”

Following the Gibney judgment, a significant number of applications to stop prosecutions for sexual offences on the basis of delayed complaint were made through the courts.

Patrick Gageby made 16 of these applications, most of which were heard in the period 2004-2007.

Seven of his applicants were successful including a psychiatric nurse facing 32 counts of indecent assault against a patient between 1975 and 1979, a man charged with 63 sexual offences against his sister from the 1960s and 1970s, and two priests accused of sexual offences in the late 1980s.

One unsuccessful applicant was Dublin swimming coach Derry O’Rourke who was convicted in 1998 for 12 years on 59 sample charges of assaulting and raping 12 girls. In 2001, he was convicted of child rape and sentenced to seven years and, in 2005, he received another 10 years for a third set of convictions.

In 2003, the Irish Times reported Mr Gageby telling a conference that there was a ‘subversion of the presumption of innocence’ with historic sexual abuse cases.

“People asked why a person would “say such a thing” if the offence had not happened,” he is reported as saying.

The paper reported:

‘[Mr Gageby] warned that cases up to 40 or 50 years old might be given a credence they did not deserve. Judges should give carefully worded warnings to juries when they were summing up old cases. Proper and full disclosure was vital, he said. The gardai were not there primarily to help the victim, but to assist in the administration of justice.’

In 2005, Mr Gageby told a prosecutors’ conference that there should be a limit on the time allowed to elapse between an alleged sex crime and the prosecution of a suspect.

in 2007, Mr Gageby was appointed by the then Justice Minister Michael McDowell to review the Garda investigation of the 1973 death of then 11-year-old abuse victim Cynthia Owen‘s daughter Noleen Murphy and concluded no public inquiry should be carried out into the death.

A year after the sex abuse charges against George Gibney were dropped, police in Colorado investigated a complaint of sexual assault made by a young swimmer against Mr Gibney, who had been working as a coach in the North Jeffco Parks and Recreation District.

Pics: Rollingnews

Earlier: Unreasonable Delay

70 thoughts on “The Chief Justice, Her Brother And How George Gibney Got Away

  1. Neilo

    Or an unfortunate hybrid of Stu Francis and David Brent that’s fronting up a Buggles tribute act.

  2. A Certain Ratio

    There you have it folks…

    1 Quality, well researched and written piece to every 50 LJG and Dan Boyle “pieces” of “content”.

    See you in three to four months, LCD.

    1. Rob_G

      Dan Boyle is ok; I don’t always necessarily follow his arguments, but he usually picks one topic and makes a few points about it in a more-or-less straightforward manner.

      Unlike, say, Mercille, who picks a topic, and then flails around trying to link it to every conceivable progressive cause celebré.

      1. A Certain Ratio

        Personally I loathe Ban Doyle for his participation in the you-know-what back then.

        I just scroll by Mercille, pausing long enough to gaze into the pixels that represent the window to his fiery Gallic soul.

  3. Clampers Outside!

    “delay in making a complaint of sexual abuse could preclude a subsequent prosecution.”

    When’s a delay not a delay? If a boy of age six is raped and says nothing until he’s 46….. is that within the limit? It should be, but I dunno…

    1. Dόn 'The Unstoppable Force' Pídgéόní

      Now that’ I’ve read it – same question. Because they waited too long they won’t get a fair trial? That makes no sense at all

    2. 1980s Man

      I know someone who fits that description Clampers, almost exactly. He made a complaint to the Garda they did nothing until a new cop took the case. Then the DPP did nothing. No reason other than they said there wasn’t enough evidence, despite their being other boys willing to testify that they too had been abused.

      Ireland protects the establishment, not the people.

    3. Sheikh Yabooti

      I guess I was lucky to only have been thrashed & kicked as a child by men of the cloth. Trembling for a few hours afterwards isn’t as bad as having waited decades for justice that never comes…

  4. 1980sman@hotmail.com

    The people who have done the most long term damage to this country and who deserve long jail sentences have always been those ‘fine upstanding respectable’ types who inhabit the mansions from Howth to Dalkey.

    They subvert the laws of our state and even write new ones to protect their ilk against any real accountability for their actions. They cover for each other, even in the supreme court.

    Their greatest camouflage is that they look like everyone else. If Ireland was an African colony instead of a European one, they’d have been strung up by the populace long ago.

    I am starting to think there was and possibly still is several child abuse rings operated among the higher echelons of society. More than we could dare to believe. And I would not be surprised if people have been murdered to cover them up.

  5. 1980s Man

    The people who have done the most long term damage to this country and who deserve long jail sentences have always been those ‘fine upstanding respectable’ types who inhabit the mansions from Howth to Dalkey.

    They subvert the laws of our state and even write new ones to protect their ilk against any real accountability for their actions. They cover for each other, even in the supreme court.

    Their greatest camouflage is that they look like everyone else. If Ireland was an African colony instead of a European one, they’d have been strung up by the populace long ago.

    I am starting to think there was and possibly still is several child abuse rings operated among the higher echelons of society. More than we could dare to believe. And I would not be surprised if people have been murdered to cover them up.

      1. Rob_G

        Riiiight – even when it was the paedos, I always knew that it was in fact the blushirts/bankers.

  6. BlackRock Ronán

    “The Chief Justice, Her Brother …”

    So, are you implying that the CJ and her brother, either by way of conspiracy, of their being related, or both somehow did neither uphold the law nor applied it fairly without favor, or somehow failed to defend the rights of a citizen as he was entitled in accordance with the law?

    if that was the implication or thrust you are attempting to project, then that would both be deeply untrue and deeply defamatory…

    1. classter

      I don’t think that LCD is making a comment on the judgement itself

      He/She is, however, suggesting that the judgement was important & that it was improper for a judge to be on the panel if the case related to her brother. Pretty uncontroversial stuff, no?

      That judge should clearly (speaking imo now) have recused herself & by failing to do so, she has brought a pall around the judgement & detracted from the reputation of the Supreme Court. I think a little bit less of the SC after reading that.

      “Justice should not only be done, but should manifestly and undoubtedly be seen to be done” etc

    2. Bobby

      From the article: “The Code of Conduct of the Irish Bar provides that, “Barristers shall not habitually practice in a case in which their parent, spouse or near blood relative is a presiding judge”.”

    3. Formerly known as @ireland.com

      @BlackRock Ronán

      FFS, it is obvious that there should be no conflict of interest, or possibility of a perceived conflct of interest, in legal cases. Did the judge forget she was related to the barrister? Did other legal people not know it?
      Scumbags did not face justice, they got looked after.

      1. Saturday Night Newsround

        Google ‘Susan Denham’ ‘Patrick Gageby’

        There are lots of references iabout the relationship including a couple of articles when she was first appointed in 1992.

        Their dad was Douglas Gageby, I’m sure the fact they were siblings was no secret to the court.

  7. Father Filth

    He instructed us at Newpark, I was just a tadpole at that point. His hairline wasn’t umm being ‘assisted’ by the merkin he seems to be wearing on his head, in Broadsheet’s photo.

    I can’t recall anything odd, he did appear in the changing rooms, nothing much else.

    1. Tell-it-as-it-is

      I was in Newpark too and Gibney was a first class stinking piece of pedo poo if ever there was one. Opening his dressing room door with skimpy towel partially wrapped around his waist was common practice. He regularly instructed the prettier girls to “see me in my dressing room”. The fupper better not set foot back in Ireland.

  8. Truth in the News

    Did at any stage Susan Denham nee Gageby advise the other members of the Court that her brother acted for Mr Gibney, who was aware of this in Judical Circles
    irrespective court protocols, the sheer optics of whole thing raises serious questions
    Patrick Gageby is entitled to represent whom he so wishes or who can afford him
    however when it come’s to who sits in Judgement is another matter, why has
    this not come into the public domain earlier.

    1. delacaravanio

      Patrick Gageby is not entitled to represent whom he so wishes. Barristers operate a taxi cab system. They have to take whatever case is offered to them. The point is that Sue Denham is the one who should have excused herself at the time.

  9. Anne

    Mr Gibney’s legal team argued that the delay in initiating the prosecution infringed their client’s right to a fair trial.

    And yet in the Cynthia Owen case, if there were a prosecution in 1973, there’d be no DNA evidence available at that time I don’t think…. and yet there’s probably still DNA evidence available now. How fairer can you get than actual DNA evidence? (as opposed to someone claiming sexual abuse years later with no physical evidence… I presume that’s the possible infringement) You couldn’t have a case more capable of definitively proving who the abuser was – or one of them at least)

    “The rule of law was the essence of a civilised society.” Could you get any more Orwellian? Joke.

    Disgusting treatment by the State of Cynthia Owens.. Civilised my hoop.

    1. audi alteram partem

      That’s a really good point, Anne. I think Broadsheet had a previous post on how Michael McDowell (who appointed Gageby to conduct the review of Cynthia’s case) refused permission for an autopsy to be carried out on the baby’s corpse, of course the father of the baby would have been guilty of statutory rape and his DNA would be identifiable.

      I don’t think very much of how McDowell (or whatever member of the civil service was advising him) handled the Cynthia Owens matter at all, firstly in refusing the autopsy, and secondly in his choice of appointment to conduct the review. Although a well-respected criminal law barrister, it’s clear from the above that Patrick Gageby was a defence rather than a prosecution counsel and that his particular speciality was having sexual abuse cases struck out on the basis of delayed complaint. Surely McDowell – as a barrister himself – or his advisors, knew this would look like picking someone who would be psychologically predisposed towards a particular conclusion.

      What’s surprising is that this information – all of which was in the public domain – wasn’t identified and highlighted before. It’s not enough to set up an inquiry – we need to look at how the inquiry is dealt with too, and the procedure for appointing persons to carry out an inquiry needs to be looked at.

      As regards the Denham-Gageby family connection, the Chief Justice at the time, who would have been responsible for assigning the judges, bears some responsibility for this mess too. Does Mr Gageby still appear before the Supreme Court when Susan Denham is sitting? It’s not like there aren’t sufficient other judges on the Supreme Court to make up the necessary quorum without her.

      Going back to Cynthia Owen, I would really like to see the Gageby report, and on what basis he concluded against her – particularly given that a jury had already found in her favour. As a criminal defence counsel, Mr Gageby would presumably be aware of the importance of the jury trial in the criminal process?

  10. cynthia owen

    Hi just to clarify, (I am cynthia Owen) see my blog http://www.noleenbetrayed42years.blogspot.com or my facebook page Sindy Theresa Murphy that an autopsy was carried out on my daughter at the time of her death, McDowell refused to allow her to be exhumed for DNA to establish her father and therefore identify the abuser.

    McDowell hired Gageby to look at the Garda files, Gageby was asked by my solicitor if he wanted to meet with me but he didnt meet with me, which beggars belief, because he made some errors in his report that had he of spoken to me I could have cleared up, he met with the Garda and yet I was alleging that I was abused by three retired members of the Garda, and he made his report up out of what they told him, the Garda on my case where friends with my father and with the three members who abused me.

    The report was biased and flawed and the terms of reference were not agreed upon by my legal team, Gageby ignored the jury findings.

    He recommended that no further public money be spent on my case, and four weeks after that the cops sent the file to the DPP??? And last year they sent it to the DPP again for the 8th time, and have just been working on it for 30 months???

    So some questions, am I mad and making all this up??? Well, if so, why have I never been charged with wasting police time, or giving false and misleading information??

    Are the Garda so incompetent that they listened to me, a lunatic fantasist and so much so that they dug the garden of my family home, held the inquest and sent the file 8 times to the DPP??

    Were the jury wrong to identify my daughter as Noleen Murphy born to an 11 year old child in her family home and died by stabbing??? And if so then why has another inquest not been demanded, oh wait, my father and three sisters took a High Court case and tried to over turn the decision but LOST, and that led to questions as to where they found the money to fund a High Court case????

    And where did my father who left 100,000e in his will to four of my siblings, two of them who admitted they knew my father had abused their own children, where did my father get the money to pay for a full legal team for himself and my three sisters who sat beside my father in the inquest and loyally supported him, despite giving evidence themselves that they had been abused too, where would a retired council worker aged 81 get that kind of money to fund a solicitor, barrister and a senior counsell for FOUR people and then die a year later and leave 100,000e, so, even if I am mad, and making it all up, who is right/wrong here the police for believing me,and acting on my allegations, the jury for believing me, or is Gageby wrong?

    Mmm, I would hedge my bets and say Gageby was wrong to produce in my view a completely biased report full of errors and mistakes and personal opinions, that no one took any notice of anyway, because the Garda continued to spend money on the case, and the men who abused me are STILL on file as official suspects, by their own admissions and have NOT been cleared in this case.

    And yet the Dept of Justice said they were accepting the Gageby Review and refuse point blank to meet with me or my solicitor and then the Panel Review set up to look into 321 cases of Garda corruption and mishandling then while admitting that the Gageby Review was outside their remit viewed it anyway and also agreed with it and refused to give me a Commission to Investigate, so now the Dept of Justice have TWO biased Reviews into my case and both parties of those reviews did not meet with me or correspond with me but delivered findings that nothing more needs to be done in my case, while 8 men are walking around free that could be Noleens father and are a huge risk to your children.

  11. Truth in the News

    There needs to be a full Inquiry to establish the facts, as the revelations are serious
    and the ways they have been dealth with give rise to widespread public concern
    it is not a case of offical bungling, there is sinister hidden element below the surface
    and they need to be exposed…..no civil society can allow this to be ignored;
    Full praise to Broadsheet for exposing the issue in such detail

  12. some old queen

    I remember a care taker entering a class room in my school then walking over and fingering a girl. The teacher who was female, pretended she heard nor seen anything despite the poor girl pleading for him to stop. “Cross Jamsie” done a lot of harm.

    We should not be surprised that in those times pedophile rings operated without impunity. Hopefully not in these times but when the legal profession is still such a biased top down system of ‘justice’, only history will tell.

    Keep at it Cynthia. Best wishes to you and yours. xx.

      1. some old queen

        Yes that actually happened. If he could do that in a room of thirty children and a teacher, god knows what else he done. And it was probably covered up too. One of many I expect.

        There is clearly some powerful people involved in this case but it is too easy to also wave the high hand and dismiss it all as a conspiracy. I have sent links to this campaign to a number of people and not one response. We try to ignore what makes us feel uncomfortable. We deny that something like this could ever happen.

        In the mean time, a woman has to resort to sites like this. No offence BS and well done for your continued highlights but until people accept that the justice system has failed Cynthia Owen, nothing has really changed.

        WE have not changed.

  13. Paul Meuse

    Chief Justice Susan Denham should be forced to resign from the Court!

    What she did was highly unethical, and that court case and the subsequent judicial review which tossed out the criminal charges against him led to other paedophiles getting off the hook. And like the Catholic hierarchy has done repeatedly the perpetrator was allowed to continue to molest and rape future victims abroad.

    The fact that Susan Denham didn’t see it inappropriate for her to sit on the case where her brother was involved speaks volumes about her real ethical integrity.

    I was a counselor and also have two law degrees. As a counselor I had other counselors removed permanently after filing ethical charges against them. Susan Denham ignored a most important principle; that is “to avoid even the appearance of impropriety.”

Comments are closed.