Majella Holohan's controversial victim impact statement this week on the death of her son jolted the public view of the case, and now throws the role of such statements into question, writes Carol Coulter, Legal Affairs Correspondent.
The moment is always a tense one when a victim or a close relative stands up in court to outline the impact of a crime. Where the case involves the killing of a child or a young person, where the details of that death have been outlined in great detail over several days, and the person making the statement is the distraught parent, that tension is multiplied. When the statement is angry and the person reading it articulate, the impact can be electrifying.
So it was when Mary Murphy stood up in Dublin Circuit Criminal Court almost two years ago to describe the impact on her and her family of the killing of her son Brian outside Anabel's nightclub in Dublin. As well as describing in heart-rending detail her "larger-than-life" son, she excoriated the criminal justice system for not delivering the truth of what had happened to him.
Similarly Majella Holohan in the Central Criminal Court sitting in Ennis this week not only described how Robert - like Brian Murphy, the family first-born - was their "pride and joy", she also publicly asked why certain evidence had not been introduced into the trial. Her claim that Wayne O'Donoghue's semen had been found on Robert's hand overshadowed everything else that had been said during the trial, and plunged the country into debate about what this might mean and why certain evidence is excluded from the trial by the prosecution.
Wayne O'Donoghue's solicitor, Frank Buttimer, has taken the unusual step of entering the debate initiated by the victim impact statement, and rebutting the claims made by Majella Holohan. He vigorously denied there was any forensic evidence linking his client to sexual activity with Robert, or that evidence on his mobile phone placed the boy in the young man's bedroom at 7.30am on January 28th. He pointed out that Robert only bought the phone later that day, and that its clock had never been set so it did not show correct times.
HOWEVER, THE WHOLE episode, along with the Murphy case and, according to lawyers, other cases that have received less publicity, raise broader issues surrounding victim impact statements and the relationship between the Garda and victims in the investigation of serious crime.
Until recently, victims were the ignored bystanders in the Irish criminal justice system. However, this marginalisation has started to be reversed in a number of ways, not just in Ireland, but internationally. This includes the introduction of restorative justice schemes, provision for the payment of compensation to victims by offenders and victim impact statements.
These statements were introduced by the 1993 Criminal Justice Act, and followed a particularly harrowing rape case, where Lavinia Kerwick sacrificed her anonymity in order to describe the impact of having been raped. The court had already heard mitigation evidence about her rapist prior to sentencing, and the system as it then was offered her no way of countering it.
The Act makes no reference to murder victims, as they are, by definition, deceased. As Prof Tom O'Malley from NUI Galway told The Irish Times, it does not mention "victims", referring instead to "the person against whom the crime was committed".
It provides for such a person to describe the emotional, physical, or financial impact of the offence on them.
However, judges have interpreted the provisions of this Act to allow the next of kin of someone who has been killed to address the court prior to sentencing, even though they are not mentioned in the legislation, and the presentation of such victim impact statements is unregulated either by law or by the rules of court.
The Act spells out that the impact of the offence on the victim is one of the factors to be taken into account when a judge is imposing sentence. That is why the victim impact statement comes after the verdict and before sentencing. It is intended that the impact of the crime be outlined, not the impact of the trial. The statements are not meant to allow for the introduction of evidence which was already rebutted, or not introduced during the trial itself.
This raises the question of how victims' relatives come into possession of such evidence in the first place. Their knowledge of the evidence is another reflection of the greater involvement of victims in the criminal justice system over the past decade.
IN 1999, THE then Minister for Justice John O'Donoghue published a Victims' Charter outlining what victims could expect from the criminal justice system. It stated they could expect gardaí to outline the investigation process and ensure they were kept informed of the progress of the investigation, including whether a suspect was charged or cautioned.
In the chapter dealing with the prosecution service, it said that the DPP's office would "work with the gardaí to ensure that you are kept fully informed of developments in the prosecution of perpetrators of offences, especially those of a violent or sexual nature; at your request facilitate a pre-trial meeting with a representative from the State Solicitor's Office and counsel to discuss the case."
The charter adds, however, "It should be pointed out that the State Solicitor will not discuss evidence with witnesses in advance of the case." This leaves close relatives of the victim in an ambiguous position. They may not be witnesses in the trial. They are entitled to be fully informed of developments in the investigation. It is not clearly defined where being kept fully informed of developments ends, and detailed discussion of evidence (whether admissable in court or not) begins.
Gardaí investigate crime and collect evidence. It is not their primary job to consider its strength or relevance, or to consider how the defence might be able to demolish it. All the evidence goes to the DPP and he or his officials, along with their solicitor and counsel, decide what becomes part of the prosecution case and what does not. Their only objective is to present the strongest possible case, and to present the evidence most likely to secure a conviction. The objective of a criminal trial is not to reveal the truth, except insofar as it leads to a conviction or acquittal.
In Ireland we have very strict rules of evidence. Evidence unconstitutionally obtained, even if obtained in good faith, is excluded, usually by the judge. This is what happened in the Brian Curtin child pornography case, where his computer could not be brought into evidence against him because it was seized under an out-of-date warrant, and the judge directed an acquittal.
A judge will also exclude evidence if it damages the presumption of innocence of the accused. No previous convictions can be mentioned during a trial. Equally, a very damaging unproven allegation about the accused might be excluded if it tended to blacken the accused in the eyes of the jury.
The prosecutors will want to avoid the collapse of a trial, or a successful appeal of a conviction and will therefore include only evidence which supports their contention that the accused is guilty.
So a lot of the evidence collected by the gardaí never makes it to court. This may well be frustrating for members of the force who have worked hard on the investigation. It is not unknown for such evidence to find its way into the public domain through the media, even when there is no prosecution or where the accused is not convicted of the most serious charge laid against him.
Gardaí involved in the investigation also sometimes form close relationships with victims' families, and naturally share their desire to see the offender brought to justice. It would be unnatural if they did not share with them every advance in the investigation, even if some of the evidence gathered did not eventually make it into court.
ALL OF THESE ingredients - the unregulated nature of victim impact statements, especiallyfrom relatives; the very strict rules for admitting evidence into Irish courts; the sharing of information about the investigation with relatives; the close relationship between gardaí and relatives; the adversarial nature of the Irish criminal justice system, which seeks convictions rather than specifically the truth - contributed to the situation that developed this week, where the conviction of Wayne O'Donoghue for manslaughter in the courts was followed by a second trial by media for an unspecified crime where possible sexual abuse was implied.
This has generated great unease in legal circles and the wider community. It is likely to lead to a great deal of heart-searching about victim impact statements, and the question of who can be made aware of evidence which is gathered by the gardaí but not presented in court, and about the rules of evidence.
Prof O'Malley said there should be a close look taken at how the victim impact statement ingredient of criminal trials is operating, and it is understood this is part of the review of the Victims Charter now being done by the Commission for the Support of the Victims of Crime. Prof O'Malley also said that such a statement should perhaps be given at the outset of a trial, rather than at the end. Other measures might include having rules of court, backed by legislation, that lay down clearly the parameters of such statements, outlawing the inclusion of extraneous material.
One way or another, many people in the criminal justice system will want to avoid a repetition of what happened this week.