DPP v Andrzej Benko
|Ms. Justice Ní Raifeartaigh
|14 May 2021
| IECA 143
|14 May 2021
|Court of Appeal (Ireland)
 IECA 143
Ní Raifeartaigh J.
THE COURT OF APPEAL
Conviction – Attempted murder – Presumption – Appellant seeking to appeal against conviction – Whether the trial judge failed to explain the presumption that a person intends the natural and probable consequences of his actions adequately to the jury
Facts: The appellant, Mr Benko, was convicted of the attempted murder of his wife on the 7 March 2014. The offence occurred on the 5 July 2010 at their home at Mulhuddart, Co. Dublin. It was not in dispute that the appellant struck his sleeping wife on the head with a lump hammer no more than three times, inflicting life-changing injuries. The appellant appealed to the Court of Appeal against conviction. The appellant contended that the trial judge failed to explain the presumption that a person intends the natural and probable consequences of his actions adequately to the jury. He also submitted that the trial judge should not have directed the jury about the presumption at all because the presumption is confined to murder cases where it arises by virtue of s. 4(2) of the Criminal Justice Act 1964.
Held by the Court that at common law there was a well-established rule or presumption which was broadly similar to that contained in s. 4(2) of the 1964 Act, and further, that this principle applied across a wide range of offences involving ‘intent’. The Court found that the presumption continues in existence in modern Irish criminal law independent to and outside of s. 4(2) of the 1964 Act. The Court rejected the appellant’s contention that because this was not a murder case the trial judge was in error in referring to the presumption. The Court held that the trial judge’s charge on the presumption in this case was correct and succinct. In the particular circumstances of this case, the Court was satisfied that the trial judge’s direction on the presumption could not have led to any unfairness or misunderstanding on the part of the jury; if defence counsel had thought it would, he would not have hesitated to press his requisition. The Court held that the trial judge did not fall into error in the manner in which he directed the jury in relation to the presumption.
The Court held that the appeal against conviction would be dismissed.
JUDGMENT of the Court delivered on the 14th day of May, 2021 by Ms. Justice Ní Raifeartaigh
In 1 the Supreme Court (Charleton J.) said that the difficulty with intent is that “no one can see inside the accused's mind” and added:,
“What the accused intended is to be inferred from what others see and hear; the facts on the ground, meaning the state of the victim's body or the presence or absence of defence markings, any admissions made by the accused which explain his mental state at the time; a prior declaration of intent; and the application of shrewdness and common sense in the analysis of the circumstances.”
One matter which frequently arises in the context of assessing the intentions of an accused person is the presumption that a person intends the natural and probable consequences of his actions (hereinafter “the presumption”). This judgment concerns a trial judge's charge to the jury on the presumption in the context of a trial for attempted murder where, of course, the required mens rea is intention to kill. The discussion in this judgment arises solely in relation to what is sometimes referred to as ‘ordinary’ intention. By ‘ordinary intention’, we mean the typical and most common meaning of intention, such that to ask the question, “What did this person intend to do by his or her action?”, means the same thing as asking, “What was her purpose in so acting?”, “What did he want to achieve by his action?”, “What did she mean to do by her action?”, or “What was her object/objective in so acting?”. We do not attempt to discuss what is sometimes referred to as ‘oblique intention’ or the relationship of the presumption to that concept.
The appellant contends that the trial judge failed to explain the presumption adequately to the jury. He also submits that the trial judge should not have directed the jury about the presumption at all because the presumption is confined to murder cases where it arises by virtue of s.4(2) of the Criminal Justice Act 1964.
This arises in the context of the appellant's conviction of the attempted murder of his wife, Joanna Benko, on the 7 March 2014. The offence occurred on the 5 July 2010 at their home at Mulhuddart, Co. Dublin. It is not in dispute that the appellant struck his sleeping wife on the head several with a lump hammer thereby inflicting life-changing injuries. The appellant appeals against both conviction and sentence. It is a tragic case, particularly when one considers the position of their young child; his father now stands convicted of the attempted murder of his mother, and his mother has sustained severe injuries such that she will need full-time care for the rest of her life.
The trial took place from the 4 March 2014 to the 7 March 2014. The sentence was adjourned to the 7 April 2014 at which time evidence was heard. The matter was then further adjourned to the 11 April 2014, when a sentence of 15 years imprisonment was imposed by the trial judge. This judgment concerns the appeal against conviction alone.
Most of the facts were admitted by the appellant at trial and the sole issue for the jury, in reality, was the question of whether the appellant had an intention to kill at the time he struck his wife, this being the requisite mens rea for attempted murder.
The offence occurred during the morning of the 5 July 2010, at the family home in Dublin. The injured party, Mrs. Benko, resided there with her husband the appellant, her 3-year old son and two other persons. The injured party had been married to the appellant since 2002 and had lived in Ireland since 2004. Both were originally from Poland. The offence took place on the injured party's birthday. The appellant left their home in the morning, travelled to various locations, and purchased flowers. On his return with the flowers, he removed the couple's child from where he was sleeping beside his mother and placed him on the couch downstairs. He went to get a vase for the flowers, but instead took up a lump hammer and attacked his wife in the upstairs bedroom. He then contacted the emergency services and travelled to Blanchardstown Garda Station where he told the Garda who was on duty in the front office what he had done. A voluntary cautioned interview took place, during which he gave a detailed description of the events of the morning. He also agreed to give the account on videotape. He was arrested and interviewed on four further occasions during his detention. The detail of what he said to the Gardaí is set out below.
When the ambulance personnel and Gardaí arrived at the family home, they found the injured party lying on the bed in the main bedroom of the house. She had significant injuries to her head and there was a considerable amount of blood around the pillow area of the bed. She was rushed to Blanchardstown Hospital, and then to Beaumont Hospital, where she was treated in a specialist neurological unit.
The medical evidence was that she had suffered a comminuted fracture of her skull, bruising and injury to her brain. Her injuries have left her confined to a wheelchair for most of her day, rendered her more childlike, severely limited her communication, and are such that she will require full-time care for the rest of her life.
Upon a search of the house, the lump hammer was found in a plastic basin in a storage rom. A box of syringes was found in the wardrobe of a bedroom, and several ‘bongs’ or drug smoking devices were found in various places. A metal tray with yellow powder was located in the bedroom in which Mrs. Benko was found; it did not contain a controlled drug but it was confirmed that controlled drugs are frequently ‘cut’ with other drugs.
Two Polish people who were living in the house at the time gave evidence that they had slept through the incident without being disturbed. They also stated they were aware of difficulties in the marriage, and one of them had heard raised voices and shouting on one occasion. A neighbour gave evidence that he had heard the Benkos fighting the previous day. A colleague of Mr. Benko said that he was aware from conversations that there were difficulties in the marriage and that Mr. Benko suspected his wife of taking and dealing in drugs, and that he wanted to go to a marriage counsellor. He also stated that he had spoken to the appellant on the morning in question and he had mentioned his plan to get flowers for his wife for her birthday, and to do something for dinner that night.
A blood sample taken from Mrs. Benko showed the presence of amphetamine at the level of 0.34 micrograms per millilitre of blood, within the ‘toxic’ range, in a scale which included the ranges ‘therapeutic’, ‘toxic’ and ‘lethal’.
The Gardaí collected CCTV footage which confirmed the appellant's account to them of his movements on the morning in question.
The prosecution case as to the appellant's state of mind rested in part upon his own admissions to the Gardaí, the admissibility of which were not contested.
When the appellant first arrived at the Garda station, he was in a panicked and agitated state and indicated to Garda Caul, who was on duty at the public counter, that he wished to speak in private. He was brought to a consultation room where he told her that he had hit his wife with a hammer while she was asleep. Garda Caul was joined by a colleague and...
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