Monday 19 August 2019

Bitter family dispute case may be dismissed

A Duncormick man accused of assaulting his brother in an ongoing dispute over a plot at the family homestead may have the case against him dismissed if Judge Gerard Haughton finds that the prosecution was not brought properly.

Before him on March 2 was Patrick Power (43), of Park, Duncormick, accused of assaulting his older brother John on June 7, 2013.

Defending solicitor, Gerry Flynn, made an application at the outset to have proceedings struck out, claiming that there was 'no fair and proper investigation prior to the institution of the summons'. He said that the summons against his client was applied for in November 2013 and issued in January 14, but the investigating Garda, Oliver Daly, did not speak to Patrick Power about the matter until the following June.

He said it appeared the decision had been made to prosecute before all facts were known, and that therefore proper procedures were not adhered to and his client could not get a fair trial.

Judge Haughton elected to hear the prosecution evidence, saying Mr Flynn could raise those points again at its conclusion.

55-year-old John Power then told his version of events of the day. He went to what he referred to as 'my property' at about 3 p.m. to do some spraying, and after about half an hour, he heard his mother's voice saying: 'I'm watching you, boy'. She was joined by Pat Power's wife Nuala, who told him to 'go on home to Halseyrath' (where he currently lives).

He replied 'I am home, this is my home, and if you want to go home to Killinick, you're more than welcome'. He then continued to spray for a couple of hours, before going to his van in the laneway alongside to get a drink of Lucozade as his energy levels were low due to him being on dialysis at the time.

His brother Pat came up the lane in his jeep, stopped beside him, pointed at him and said: 'you're going to get it here, boy'.

'I replied 'you've court next month, don't be late for it', and with that, he came charging for me,' he continued, adding that he was punched to the ground and then struck on the back of the head as he lay there.

Nuala, standing alongside, offered to bring him to hospital, but he refused. He instead rang his brother Nicky, who arrived a short time later and told her (Nuala) to 'get the hell away from me'. She started to argue with Nicky, and Pat tried to goad Nicky into hitting him, at one stage provoking him by kissing him on the cheek.

Their mother then arrived, and started going on about Nicky's daughter having been in an accident. 'She said 'God had his hand on her, and he has his hand on you now. You're not long more for this world',' he said.

He said he managed to get back on his feet after about 15 minutes, and both Nicky and a friend who happened to pass by - Billy Lambert - brought him back to Nicky's house, where his condition improved.

With regard to the property in dispute, he claimed his father gave him a plot 'at the home place' in 1986. It lies between his parents' property and his brother's property, so they all have to pass each other on the laneway.

In cross-examination from Mr Flynn, John Power accepted he has been living away from the family place for the past 18 years, as he shared a home with his partner some four miles away at Halseyrath until she sadly passed away last year. He denied that he goes to 'the home place' just to antagonise other members of his family, or to advance any claim he might have for squatters rights on the disputed plot.

Asked if he accepts that his parents don't want him there, he said he can't speak for his father, as he doesn't see him or talk to him. As regards his mother, aged in her eighties, 'she'd be there all right, giving plenty of abuse. She might be in her eighties, but she's well able to stir up trouble. She lives for it'.

He also denied regularly abusing his brother's wife Nuala by calling her 'Orphan Annie'.

'I never called her that. I might have told her to eff off a few times, but that's as far as it goes,' he said.

Nicholas Power then told how he had a phone call from John around 5.30 p.m. that day, asking him to 'come down' and saying he'd been hit. He was there within a minute or two as he was getting into his car at the time anyway. He saw John slumped on the ground, 'unresponsive and glassy-eyed', and saw Nuala and Pat there too.

Pat began 'making shapes - trying to get me to hit him', and then their mother came along and gave him 'horrible' abuse too. 'It was real filth and dirt,' he said.

'And Nuala kept on to John all this time, so I opened up on her instead,' he added, saying that he reminded her of 'an incident at the hall in Rathangan'.

'The idea was to get her attention off John and onto me, and it worked,' he said. 'They hurled abuse at me, but I gave as good as I got.'

In cross-examination, he said that he tries to have very little to do with his sister-in-law Nuala, 'or any of that part of my family'.

'And that's by choice, going back years,' he said. 'My own wife and children get the same sort of treatment from them. And I saw something in her (Nuala) that day that I didn't like. It was actually frightening. She was like a wild animal going for the kill, and the worse John got, the more excited she got.'

Garda Oliver Daly told how he investigated the case after John Power made a complaint on June 17, 2013 (ten days after the alleged assault). He accepted that he did not speak to Pat Power before applying for a summons and in fact did not speak to him at all until June of the following year.

This was when he and a colleague went to Pat Power's property with the summons. He (Garda Daly) spoke to Pat Power about the matter before his colleague served him with the summons.

'I've dealt with a lot of similar matters involving the same people over the years, and in hindsight, this was one I had actually forgotten about,' he said.

Solicitor Gerry Flynn again submitted this means that fair procedures were not followed, and again sought a dismissal.

Judge Gerard Haughton said he would have to research legal precedence in such cases, as it appeared that while Garda Daly did not speak to the defendant before applying for a summons, he did in fact speak to him before that summons was served.

He adjourned to April 20, saying he will give his decision on that date, and fix a date to hear the defence evidence if necessary.

'But no matter what I do, I am not going to solve the problem,' he said. 'The only way it can be solved is for John Power to put his money where his mouth is and make an application to the Land Registry for ownership. If that decision is made, they will all have to learn to live with it.'

Wexford People