Is Judge Carney right?

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Purple

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What do AAM posters think about the speech made by Judge Carney to the UCC law society?
Personally I agree with every word of it and think the Minister Lenahan should legislate to allow Judges to edit or stop publication of victim impact reports as comments can be made in the privileged environment of the court that might otherwise be libellous. I think his comments should be seen in the context he intended, i.e. not just in the context of the sentence hearing of Wayne O’Donoghue.
We have to decide if we accept the premise that trial by court, with a presumption of innocence where the burden of proof is on the prosecution is what we want or if we want trial by the media/ mob justice where innuendo and conjecture are applicable.
 
Yes, I agree also. I was shocked and annoyed at Mrs. Holohan's speech at the time.
 
Technically he may be correct in legal terms but I was genuinely shocked that he chose to make such a public attack on Mrs Holohan, who in my view has suffered enough. The Judge has plenty of other avenues to express his opinions to the powers-that-be.

I believe it was a serious error not to disclose the semen evidence during the O'Donoghue trial. It should have been quite possible to have it disclosed to the jury as a fact material to the case, perhaps with a proviso (maybe agreed by both defence and prosecution) that it was unreliable evidence and should be ignored. The Gardai had obviously and properly appraised the Holohan family on the existence of this evidence, prior to the trial. Its suppression during the trial left a "smoking gun" that would do serious harm to O'Donoghue if it was ever disclosed in the aftermath of the trial. It would not take a genius to realise that this was a real possibility.

Personally, the other inconsistencies and issues raised by Mrs Holohan (in relation to Robert not wearing shoes when he was supposedly riding his bike on the road, and the early-morning phone calls) would worry me more than the dubious "semen" evidence.

Its a bit naive to suggest that Mrs Holohan needed to use the victim impact statement in order to protect herself from libel proceedings had she chosen to make her comments elsewhere, for example in a media statement on the steps of the court. In the aftermath of being jailed for the manslaughter of a child, its hard to believe that O'Donoghue would have been in much of a position to sue anyone (least of all the mother of his victim) for damage to his reputation.

Finally, and on a different note, Judge Carney was a mile wrong, and imho betrayed a certain class bias, when he singled out the tabloid media for the attention they gave to the trial. I happened to be driving for several hours on the day of the verdict and RTE radio & Today FM gave the story wall-to-wall coverage that day, including the "semen" angle.
 
I agree with what he was trying to say but I thought he was very insensitive in his choice of language. I have alot of repect for that Judge and he obviously felt very passionate about the issue but I don't think there was any need to come out into a public forum and have a go at the victims family so long after the event. I don't remember him raising it at the time in the media so why drag it into the public domain now?
 
If you're going to act on victim statements on the basis of being in a privileged environment, then you also need to start considering what other situations should be changed. Should slanderous remarks mabe in parliament become actionable under law?
 
The judge wants the poor guy to be able to rebuild his life when he gets out after his measely 4 years. Lets have a big ahhh.

The Holohan family will never get a chance to rebuild their lives. Anyone that knows a family that have lost a child would know this only too well.
Add to this the fact that their child was killed (I could use a word that would be used to describe the death in some jurisdictions) only adds further pain to this grief.

It is typical of our judiciary and the soft approach to crime that somebody that takes a life gets all the breaks and the victims get sidelined and almost ignored by the same system.
The judge's comments and the way in which he delivered his criticism were condescending towards the real victims of this crime.

Is this not also the judge that had to review a case where a rapist was on a suspended sentence?
 
jmayo said:
Is this not also the judge that had to review a case where a rapist was on a suspended sentence?
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Yup, that's him...his reason was something on the lines of "he (the rapist) comes from a good family."

I was not impressed with that particular judgement.

I think a personal attack on someone who had lost their young son under such circumstances is harsh...shows a lack of empathy for the victim. Just my tuppence worth.
 
It WAS unreliable evidence. That is why it wasn't used. What purpose would it serve to tell the jury it should be ignored??? If it should be ignored then, clearly, it shouldn't be given to the jury!
The Gardai had obviously and properly appraised the Holohan family on the existence of this evidence.
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It appears that somebody DID appraise the Holohan family. Was it proper? No it wasn't!! Why? Because it was disclosing material which might have prejudiced the trial and resulted in its collapse - and, furthermore, as the investigation into the semen showed that it could not be relied on, the Holohan family had the further added trauma of coming to terms with all the permutations that the involvement of semen brought up. I can't even begin to imagine how the Holohan family felt - and continue to feel - when the heard this.

....the other inconsistencies and issues raised by Mrs Holohan (in relation to Robert not wearing shoes when he was supposedly riding his bike on the road, and the early-morning phone calls) would worry me more than the dubious "semen" evidence.
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Mrs holohan was not prosecuting O'Donoghue. Nobody judges in their own case.

Victim impact statements have helped many towards coming to terms with their particular ordeal. It now appears, as a result of Mrs Holohan's anguished statement, that victim impact statements may be curtailed in the future. In my view the long-term good of victims in the Irish judicial system was not well served by Mrs Holohan's heart-felt grief.
 
Is it not a fact that in our legal system there is a presumption of innocence and that the Prosecution, on behalf of the state, has to prove its case beyond a reasonable doubt? If that is correct then I think Judge Carney was right to say what he did.

The content of a Victim Impact Statement cannot be allowed to contain new accusations that did not form part of a trial. If this particular V.I.S. remained unchallenged, such accusations could have repercussions in any future criminal trial, the effect of which could be to thwart justice. It can hardly be justice to allow an individual to make an unsustained (and unsustainable in this case based on forensic reports) accusation or allegation at a time when the accused person is precluded from defending him/herself. That to me smacks somewhat of a Kangaroo Court or a Trial by Media, which can hardly benefit a civilised society. While every sympathy and support should be afforded to the Victim’s family, the family of a perpetrator are not guilty of anything.

In defence of Judge Carney, to be best of my knowledge this case was the first occasion when a V.I.S. departed from being solely an opportunity for a family to describe in public the impact the crime has had on their lives.
 
If the judge has anything to say to Mrs Holohan, he should arrange to meet her face-to-face (maybe with a treasured photograph of Wayne) in his eyeline, and explain to her directly how important his concerns are, relative to the grief of a parent who has lost a child. I wonder if his honour has the cojones to try this approach?
 

C'mon now RainyDay, let's be at least a little bit informed on the matter before commenting. Mr. Justic Carney, as Adjunct Professor of Law in UCC, was delivering a law lecture to the college law faculty, NOT addressing Mrs Holohan.

Whatever he might say to Mrs Holohan would be said in a court of law, not in any other non-judicial context. Any explanation of rationale in a case happens only in the courts system.
The mind boggles at a system where a justice is expected to meet with victims families in a non-judicial setting. Where would you stop? Would you want justices to meet with, say the familes of murdered drug barons? Or only in cases where an innocent is involved? Who decides as to who is an innocent?

At Justice Carney's inaugural lecture, some time ago, he said that there were "two great issues which must be faced:
1 conduct on the part of the victim which might lead to a liability for contempt of court.
2 the building up by the media of selected victims into such an iconic status that other participants, including the judge, are handicapped in the discharge of their independent roles"

In this context Justice Carney was expanding, primarily to interested legals, on his previous lecture.

As to meeting victims families face-to-face, he does that every time he steps into a courtroom. ...and yes he does have the balls (aka, as you put it, "cojones") to meet victims families..... and also to face down every manner of criminal each of those days.
 
Marathon Man said:
C'mon now RainyDay, let's be at least a little bit informed on the matter before commenting. Mr. Justic Carney, as Adjunct Professor of Law in UCC, was delivering a law lecture to the college law faculty, NOT addressing Mrs Holohan.
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I'm aware of that. It was cowardly of him to comment in public about Mrs Holohan's statement in the safe environment of a lecture hall. I'd suggest he should have said it to her face first.
 
RainyDay said:
I'd suggest he should have said it to her face first.
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He can't do that while a sitting justice. It concerns the separation of powers and the independence of the judiciary.

As I said previously, "Justice Carney was expanding, primarily to interested legals, on his previous lecture." It was NOT a public lecture.

Justice Carney referred to four cases during his lecture. The Holohan case was not one of those, however, without quoting the case, he mentioned another, saying " Victim impact evidence achieved its greatest notoriety in a murder trial before me" - it was clear to all that this was the Holohan case.

If we follow your arguement that Mrs Holohan should have been spoken to face-to-face first, then the same should apply to victims in every other case mentioned, along with the others on which he spoke.

It was cowardly of him to comment in public about Mrs Holohan's statement in the safe environment of a lecture hall.
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On the contrary, it would have been cowardly, and far easier for him to say nothing.

However, you appear to miss the entire point at issue: Mrs Holohan departed from a victim impact statement which she composed, or was composed on her behalf, to which she voluntarily agreed, and in this departure, she proposed as "evidence" matters which were NOT evidence in the case. That is the issue NOT whether she should have been consulted.
 
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Marathon Man said:
He can't do that while a sitting justice. It concerns the separation of powers and the independence of the judiciary.
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Please continue - I'd be fascinated to hear a full explanation of why he can't meet a participant in one of his past cases. I'm not a legal expert, but I can't see any relevance of 'seperation of powers' on this issue.
Marathon Man said:
As I said previously, "Justice Carney was expanding, primarily to interested legals, on his previous lecture." It was NOT a public lecture.
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This is the kind of 'angels dancing on heads of pins' rubbish that seems to be hugely significant in the legal world, but have no relevance in the real world. Unless his honour is a total gombeen, he would have been well aware that his comments would be made public and would cause substantial hurt and offence.
 
The legal system has to be based on factual evidence which the prosecution thinks has a reasonable chance of standing up in court.
The semen evidence was looked at by the DPP and found not to be reliable. We cannot convict on conjecture, we cannot convict on emotional grounds and we cannot convict on evidence that has been shown to be flawed.
The perception of the irrefutability of DNA evidence is deeply concerning as it can be used by the prosecution as a "silver bullet". I think the DPP was aware of this as was seeking the truth as opposed to seeking a conviction of any sort.
This is not "'angels dancing on heads of pins' rubbish", it is what safeguards us against mob justice. It protects us from a jury convicting or acquitting based on how they feel about the people involved, their own biases about those people and their sense of outrage at an appalling crime. Reginald Rose’s play 12 Angry Men is a masterful study of this.

So why did Judge Carney speak now and not then? He answered this himself, he said that he wanted to say something sooner but didn’t as he knew that when he did it would cause upset to the family.
It has been established in law that Wayne O'Donoghue is a child killer. He has to live with that. It is not OK to insinuate that he is also a paedophile. The reason for this is that if it’s OK to accuse him then it’s OK to accuse anyone.
The court room has to be a rather cold and dispassionate place. It has to be such so that logic and fact are used to establish the guilt or innocence of the accused and base tabloid sensationalism, which firmly occupies the realm of emotion, is not allowed to influence the process.
If you are not sure what happens when emotion and shock are allowed to influence the police, the state prosecution service and/or the courts then ask the Guilford four or Birmingham six.
 
Forget all this semen stuff. What really gets me is the hugely sympathetic approach of JC to WOD. "Just a bit of horseplay gone wrong, Mrs H ruined my chance to rehabilitate WOD". JC' main objective in sentencing would appear to be rehabilitaing WOD rather than punishing him, he surely does not expect Mrs. H to share that objective.

Let's consider what we do know. WOD killed that kid, went to extreme and callous lengths to conceal the body. Stopped off for a mineral whilst the body was in the boot. Watched a video with the girlfriend after he had dumped the body. "Helped" in the search and assured Mrs H Robert would be found safe and well.

Just a little horseplay gone wrong, indeed?

Even the DPP thought the sentence was too low. We now know why it was too low, JC had taken the hump at Mrs H audacity in "abusing" his court. JC really has taken the Mrs H thing far too personally for me to think he is still objective on the point (he walked out of a Mass she was attending).

The DPP appeal probably failed because the legal institutions were in JC' camp and also possibly out of not wishing to be seen to be influenced by the tabloids.

Were the tabloids wrong? On the more lurid headlines, yes. But in getting WOD a "heavier" penalty than our "justice" system was able to deliver, they performed a service.
 
RainyDay said:
Please continue - I'd be fascinated to hear a full explanation of why he can't meet a participant in one of his past cases. I'm not a legal expert, but I can't see any relevance of 'seperation of powers' on this issue.
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Sorry RainyDay - you'd need to do Law 101 and we'd lock up the AAM site in doing that here.

This is the kind of 'angels dancing on heads of pins' rubbish that seems to be hugely significant in the legal world, but have no relevance in the real world.
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???? I don't know what you intend by this.

Unless his honour is a total gombeen, he would have been well aware that his comments would be made public
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Agreed! The manner and location of JC's comments on the case are one of the few means available for the Judiciary to feed back into the system, given the Separation of Powers - see first point.

and would cause substantial hurt and offence.
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I strongly suspect that ANY reference to the matter by ANYBODY is going to be a source of hurt for the Holohan family FOREVER. The hurt, loss, anguish and grief will NEVER go away. Coping is a taking one day at a time.

btw, Purple has put the matter very well. Harchibald might do well to note, in particular, the last two lines of Purple's post.
 
I can't see why it was wrong of Mrs Holohan to bring up the semen issue in her Victim Impact Statement. As I understand it, such a statement is so that a person affected by a crime can state how their life has been affected by this crime.

If a mother has lost her child in the way Mrs Holohan did, and finds out that semen was found on her child's body, but this issue is not resolved in the course of the killer's trial, this knowledge surely has to make the impact of the crime even worse.

Perhaps the fact that the media had a field day with this information was not fair on O'Donoghue (not that I have much sympathy for him), but that wasn't Mrs Holohan's fault, and I think Judge Carney was entirely out of order to hold her responsible.
 
Marathon Man said:
Sorry RainyDay - you'd need to do Law 101 and we'd lock up the AAM site in doing that here.
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This is patronising and evasive. There is a fairly well established tradition round these parts that if you are going to make such claims as being a matter of fact, you need to stand them up and show evidence. Few readers are likely to give your claims of fact credibility without this.

Marathon Man said:
???? I don't know what you intend by this.
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See explanation below.
Marathon Man said:
Agreed! The manner and location of JC's comments on the case are one of the few means available for the Judiciary to feed back into the system, given the Separation of Powers - see first point.
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If this is one the few means, I would suggest that any other of the few means would be preferable. If the judge genuinly doesn't have means to 'feed back', then perhaps he should be focusing his campaigning and public comments on the lack of a feedback channel, rather than on Mrs Holohan's comments in the most challenging of circumstances.




My comment about angels and heads of pins was in relation to the text I quoted above this comment, i.e. the distinction which Marathon Man was drawing between public and private events. While this may well be technically correct, it is clearly completely irrelevant to the Holohans. His Honour must have known that his comments would be widely reported, and would cause extreme pain to the Holohans.

The comment that "he wanted to say something sooner but didn’t as he knew that when he did it would cause upset to the family" is bewildering. Could he possibly think that the pain of losing a child in these circumstances has been eased substantially in the relatively short time since the incident occured, particularly as we are now approaching the point where the killer may well be released on parole.

You will note that I haven't made any comment on the substantive issue of the eligibility of this evidence. I really feel I don't know enough about this case to comment sensibly on this.
 
OK I can see how you might feel that way, my point was that one MUST understand the Separation of Powers if one is going to engage in informed debate on the matter.

The Separation of Powers relates to the relationship between the Legislature (Dail), the Executive (Governmant) and the Judiciary. To explain it here would take an awful long time. However to understand what the judiciary may and may not do one really does have to understand the Separation of Powers. [BTW, the Separation of Powers was one of the prime, if not THE prime difficulty in the Judge Curtin case.] See here for a brief explanation of Separation of Powers http://en.wikipedia.org/wiki/Separation_of_powers


See Separation of Powers as to why he can't campaign.

You will note that I haven't made any comment on the substantive issue of the eligibility of this evidence. I really feel I don't know enough about this case to comment sensibly on this.
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With the very greatest of respect, this is what this debate is about. To reduce it to a simple "should he have respect for the privacy of the Holohans" simply doesn't wash.

btw. I understand that there was an article on the matter, in relation to introducing legislation curtailing Victim Impact Statements, on the News at One on RTE today. I didn't hear it but I will be reading it. To quote my own post
 
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