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Defendant dies: Status of Trial?

  • 14-04-2013 12:47pm
    #1
    Condatis
    Registered Users, Registered Users 2 Posts: 651 ✭✭✭


    Russian Lawyer and whistleblower Sergei Magnitsky died in a Moscow jail cell in 2009. Despite his death his trial is to continue posthumously. This is the first time that this has occurred in Russia.

    Could this happen in a criminal trial in Ireland? What is the position here when a defendant dies?

    My impression is that the trial does not proceed. Is it simply struck out or does the prosecution enter a nolle prosequi? Is there any statutory provision for such a situation or is it the case that precedent dictates the outcome?

    Is there any stipulation that a defendant be alive for a trial to proceed?

    Magnitsky had accused of tax and police officials of conspiracy involving illegal claims to tax rebates. Their is widespread suspicion that he was murdered in prison.


Comments

  • #2
    Slyderx1
    Registered Users, Registered Users 2 Posts: 153 ✭✭Slyderx1


    you suggest the defendant be dug up for cross examination?


  • #3
    Condatis
    Registered Users, Registered Users 2 Posts: 651 ✭✭✭Condatis


    Slyderx1 wrote: »
    you suggest the defendant be dug up for cross examination?

    I do not suggest anything. I found the report of the Russian case to be intriguing.

    Well! Can you answer the question that I posed? Or do you have a clue about it?


  • #4
    234
    Registered Users, Registered Users 2 Posts: 1,529 ✭✭✭234


    Slyderx1 wrote: »
    you suggest the defendant be dug up for cross examination?

    Popes have done it before...


  • #5
    johnnyskeleton
    Moderators, Entertainment Moderators, Politics Moderators Posts: 14,535 Mod ✭✭✭✭johnnyskeleton


    Condatis wrote: »
    Russian Lawyer and whistleblower Sergei Magnitsky died in a Moscow jail cell in 2009. Despite his death his trial is to continue posthumously. This is the first time that this has occurred in Russia.

    I'm sure during the purges and show trials they must have done the execution before the trial a few times by mistake.
    Could this happen in a criminal trial in Ireland? What is the position here when a defendant dies?

    A trial can take place in absentia, but fair procedures dictates that this is only where there is wilful refusal to turn up for court, at the request of an ill accused person etc. it is arguably unfair to try someone in absentia after their death, but in reality we will never see it happen because it serves no practical purpose. Appeasing the public need for vengeance is not a valid aim of an independent prosecutor - the government can convene a tribunal for that.
    My impression is that the trial does not proceed. Is it simply struck out or does the prosecution enter a nolle prosequi? Is there any statutory provision for such a situation or is it the case that precedent dictates the outcome?

    District court struck out, indictment nolled. No statute or case law that I know of, although interesting as an academic exercise I doubt it has ever come up or needed legislating.
    Is there any stipulation that a defendant be alive for a trial to proceed?

    They have to be fit to plead, and that requires that they can understand and follow the proceedings. Although meant more for mad people, if the dpp were ever crazy enough to do that I would assume the 2006 act could be used as an equally crazy way to halt the proceedings.[/quote]


  • #6
    johnnyskeleton
    Moderators, Entertainment Moderators, Politics Moderators Posts: 14,535 Mod ✭✭✭✭johnnyskeleton


    Slyderx1 wrote: »
    you suggest the defendant be dug up for cross examination?

    Id advise him to exercise his right to silence. Though if evidence was necessary, I'm sure he would "rise" to the occasion.


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  • #7
    Victor
    Registered Users, Registered Users 2 Posts: 78,494 ✭✭✭✭Victor


    It will of course depend on whether there are other defendants.

    In countries where there are investigative judges, the other defendants may not have been identified yet.


  • #8
    Slyderx1
    Registered Users, Registered Users 2 Posts: 153 ✭✭Slyderx1


    Victor wrote: »
    It will of course depend on whether there are other defendants.

    In countries where there are investigative judges, the other defendants may not have been identified yet.
    In Ireland The Director of Public Prosecution issues a direction to the Prosecution team to enter a Nolle Prosequi to the Court and sympathy whether merited or not is usually contained in the Direction.


  • #9
    Condatis
    Registered Users, Registered Users 2 Posts: 651 ✭✭✭Condatis


    johnnyskeleton wrote: »
    A trial can take place in absentia, but fair procedures dictates that this is only where there is wilful refusal to turn up for court, at the request of an ill accused person etc. it is arguably unfair to try someone in absentia after their death, but in reality we will never see it happen because it serves no practical purpose. Appeasing the public need for vengeance is not a valid aim of an independent prosecutor - the government can convene a tribunal for that.

    District court struck out, indictment nolled. No statute or case law that I know of, although interesting as an academic exercise I doubt it has ever come up or needed legislating.

    They have to be fit to plead, and that requires that they can understand and follow the proceedings. Although meant more for mad people, if the dpp were ever crazy enough to do that I would assume the 2006 act could be used as an equally crazy way to halt the proceedings.
    [/QUOTE]

    That all makes sense – and yes; and academic poser is what was intended.


  • #10
    Victor
    Registered Users, Registered Users 2 Posts: 78,494 ✭✭✭✭Victor


    Condatis wrote: »
    That all makes sense – and yes; and academic poser is what was intended.

    Now, now, johnnyskeleton is a real world poser, not one of those namby pamby academic posers.


  • #11
    valleyoftheunos
    Closed Accounts Posts: 2,332 ✭✭✭valleyoftheunos


    The situation in Russia is bizarre and i presume, politically motivated. Its not possible to try someone after their death and would serve no purpose because as one jurist put it, "they are far beyond the jurisdiction of any court."

    Incidentally this did actually arise in Irish Courts last year, in the trial relating to the Killing of a young African teenager in North Dublin (the names escape me just now). One of the accused had died before the case came to trial and the Jury was instructed that the guilt of the deceased man was not at issue and would not be addressed.


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  • #12
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    Slyderx1 wrote: »
    In Ireland The Director of Public Prosecution issues a direction to the Prosecution team to enter a Nolle Prosequi to the Court and sympathy whether merited or not is usually contained in the Direction.

    I have only seen it happen once in an Indictment trial, and yes there was a statement if sympathy for the family. I have also seen it happen a few times in DC appeals to Circuit, considering the person was judged guilty in District Court, in all cases the State requested the appeal be allowed.


  • #13
    CIARAN_BOYLE
    Registered Users, Registered Users 2 Posts: 14,599 ✭✭✭✭CIARAN_BOYLE


    What point is there in trying a deceased. Damaging someone's reputation is hardly fair grounds.

    Could money be a valid reason??? Does someone need to be found guilty of a crime before the Criminal Asset Bureau can go after their assets to recover the proceeds of crime? I am afraid I don't know much about the CAB but if someone could explain it would be appreciated.


  • #14
    valleyoftheunos
    Closed Accounts Posts: 2,332 ✭✭✭valleyoftheunos


    CIARAN_BOYLE wrote: »
    What point is there in trying a deceased. Damaging someone's reputation is hardly fair grounds.

    Could money be a valid reason??? Does someone need to be found guilty of a crime before the Criminal Asset Bureau can go after their assets to recover the proceeds of crime? I am afraid I don't know much about the CAB but if someone could explain it would be appreciated.

    Quite the opposite, its one of the CAB's greatest strengths.


  • #15
    johnnyskeleton
    Moderators, Entertainment Moderators, Politics Moderators Posts: 14,535 Mod ✭✭✭✭johnnyskeleton


    Victor wrote: »
    Now, now, johnnyskeleton is a real world poser, not one of those namby pamby academic posers.

    I'm all sorts of posers all wrapped up in one, don't get me started.


  • #16
    Victor
    Registered Users, Registered Users 2 Posts: 78,494 ✭✭✭✭Victor


    ResearchWill wrote: »
    I have only seen it happen once in an Indictment trial, and yes there was a statement if sympathy for the family. I have also seen it happen a few times in DC appeals to Circuit, considering the person was judged guilty in District Court, in all cases the State requested the appeal be allowed.

    X and his fiancée Y conspire to murder his wealthy brother Z for the purpose of inheriting his estate, for their benefit. X then kills Z. X and Y marry. X is found guilty and forfeits the estate to the next in line to inherit, while Y is found innocent. While the case is under appeal, X dies in prison. Surely it would be against public policy to roll over on the appeal and allow the estate to be misdirected?


  • #17
    johnnyskeleton
    Moderators, Entertainment Moderators, Politics Moderators Posts: 14,535 Mod ✭✭✭✭johnnyskeleton


    Victor wrote: »
    X and his fiancée Y conspire to murder his wealthy brother Z for the purpose of inheriting his estate, for their benefit. X then kills Z. X and Y marry. X is found guilty and forfeits the estate to the next in line to inherit, while Y is found innocent. While the case is under appeal, X dies in prison. Surely it would be against public policy to roll over on the appeal and allow the estate to be misdirected?

    District court appeal is a brand new hearing of all the evidence, central criminal court is point of law only. So it wouldn't happen in a murder or other serious offence, just district court summary matters.


  • #18
    234
    Registered Users, Registered Users 2 Posts: 1,529 ✭✭✭234


    Victor wrote: »
    X and his fiancée Y conspire to murder his wealthy brother Z for the purpose of inheriting his estate, for their benefit. X then kills Z. X and Y marry. X is found guilty and forfeits the estate to the next in line to inherit, while Y is found innocent. While the case is under appeal, X dies in prison. Surely it would be against public policy to roll over on the appeal and allow the estate to be misdirected?

    You don't need the criminal conviction to prove the murder. It can be done if somebody is contesting how the proceeds of the estate are being dispersed.

    Look at recent case about Nevin's estate http://www.boards.ie/vbulletin/showthread.php?p=83460202


  • #19
    Slyderx1
    Registered Users, Registered Users 2 Posts: 153 ✭✭Slyderx1


    Victor wrote: »
    X and his fiancée Y conspire to murder his wealthy brother Z for the purpose of inheriting his estate, for their benefit. X then kills Z. X and Y marry. X is found guilty and forfeits the estate to the next in line to inherit, while Y is found innocent. While the case is under appeal, X dies in prison. Surely it would be against public policy to roll over on the appeal and allow the estate to be misdirected?
    Who or what is going to reverse the decision of the Central Criminal court under the above circumstances?


  • #20
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    Victor wrote: »
    X and his fiancée Y conspire to murder his wealthy brother Z for the purpose of inheriting his estate, for their benefit. X then kills Z. X and Y marry. X is found guilty and forfeits the estate to the next in line to inherit, while Y is found innocent. While the case is under appeal, X dies in prison. Surely it would be against public policy to roll over on the appeal and allow the estate to be misdirected?

    There is a huge difference between an appeal from the DC and an appeal of an indictment. My post in relation to appeals only related to District Court appeals, a murder can not be tried in DC.


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