DPP v Herda

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 12 October 2017
• Neutral Citation: [2017] IECA 260
• Docket Number: Record No. 226/2016
• Court: Court of Appeal (Ireland)
• Date: 12 October 2017

[2017] IECA 260

THE COURT OF APPEAL

Mahon J.

Birmingham J.

Mahon J.

Whelan J.

Record No. 226/2016

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

MARTA HERDA

APPELLANT

Conviction – Murder – Unsafe verdict – Appellant seeking to appeal against conviction – Whether verdict was unsafe

Facts: The appellant, Ms Herda, was convicted on the 28th July 2017 of murdering Mr Orsas on the 26th March 2013 by a jury at the Central Criminal Court and was sentenced to life imprisonment. She appealed to the Court of Appeal against her conviction on the grounds that the trial was unsatisfactory and the verdict was unsafe, in particular having regard to the various applications, submissions and requisitions made on behalf of the appellant and the adverse rulings made by the trial judge in respect of same.

Held by the Court that all grounds of appeal were rejected.

The Court held that the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 12th day of October 2017 by Mr. Justice Mahon

1 The appellant was convicted on the 28th July 2017 of murdering Csaba Orsas, a Hungarian national on the 26th March 2013 by a jury at the Central Criminal Court and was sentenced to life imprisonment. She has appealed against her conviction.

2 The appellant is a Polish national born in 1987. She came to live in Ireland at the age of nineteen, and at the time of the offence was working in a hotel in Arklow where the deceased was also employed. They had known each other for approximately two years. Both lived in Arklow, but in different parts of the town, with the deceased residing in a part closer to the harbour area. It was alleged by the appellant that the deceased had been, for some period of time, infatuated with her, regularly followed her and attempted to contact her, and in general terms, harassed her to the point of annoyance and concern on her part.

3 Early on the morning of the 13th July 2013 the appellant drove her Volkswagon Passat car, with the deceased in the front passenger seat, through a barrier and railing at Arklow harbour and into deep water. The appellant succeeded in exiting the car and swam to safety. The deceased's body was later found washed up on the nearby shore, having died from drowning. Immediately following the incident, the appellant was found by local people in a saturated state close to the harbour area and was taken by ambulance to hospital. At the trial, evidence was heard from people who came to her assistance, ambulance personnel and from two nurses who tended to her in hospital. The appellant did not sustain any physical injury.

4 At the time of the incident the appellant had been living and working in Ireland for approximately seven years and had a reasonably good, although not perfect, command of the English language. She advised D/Sgt. O'Brien at the commencement of her second garda interview on the 2nd August 2013 that she had a good understanding of English but might need help with some words.

5 The prosecution case against the appellant was that she had deliberately and intentionally driven her car at speed into the water with the intention of killing the deceased or causing him serious harm. Although the appellant did not give evidence at the trial, and no evidence called on her behalf, it was nonetheless clear from the cross examination of witnesses in the course of the trial by her counsel and from what he said in the course of his closing speech to the jury that the appellant vehemently challenged the allegation that she deliberately drove her car into the water or that she intended to kill or seriously harm the deceased. It was contended on her behalf that she did not have a full recollection of events immediately prior to the incident, and that aspects of statements made by the appellant immediately following the incident, and another some three to four months later did not convey information which the prosecution claimed they did. A similar position was taken in relation to a video taped interview of the appellant by the gardaí. Furthermore, some of the evidence given by the witnesses who came to the appellant's assistance after she emerged from the water on the morning of the incident and the evidence of the two nurses who tended her in hospital were robustly challenged by the appellant. In general, the appellant claimed to have little or no recollection of the events in the period leading up to driving into the water, including, in particular, the circumstances in which the deceased came to be in her car.

6 In particular, the appellant challenged the suggestion that she had said in statements or in her recorded interview that the deceased had suddenly appeared at her car outside her residence shortly after 5 a.m. on the morning of the incident while she sat in the car alone having been driven home by a work colleague, and that he got into the car and ordered her to drive. CCTV evidence established that shortly after that time the appellant was seen driving her car alone through the town of Arklow, and in the general direction of the deceased's address, and the harbour area generally. Telephone evidence also established that in or around this time the appellant had made three calls on her mobile phone to the deceased, and CCTV evidence showed her on a mobile phone making one of these calls as she drove through the town. There was also evidence from a witness that the appellant was on her mobile phone in her car and appeared to be engaged in very agitated conversation. There was also evidence that the appellant had driven her car at speed in the harbour area and through the barrier and hand rail into the water, and that the handbrake, (and not the footbrake), had been applied immediately before the car plunged into the water. There was also the suggestion that the appellant may have fully opened her electrically operated driver's window immediately prior to the car entering the water, although there was evidence that an electronically operated window could have been opened within one minute of a car entering water, and that a car may float briefly. The appellant was aware that the deceased was unable to swim and had a fear of water, while she was able to swim.

7 The grounds of appeal as originally filed by the appellant and which were generally expanded upon in the course of the oral hearing of the appeal (some to a greater extent than others), are as follows:

(i) The trial was unsatisfactory and the verdict was unsafe, in particular having regard to the various applications, submissions and requisitions made on behalf of the appellant and the adverse rulings made by the learned trial judge in respect of same.

(ii) The learned trial judge erred in ruling admissible the evidence of Nurses Best and Ging as to words alleged to have been spoken by the appellant during the triage process in the hospital to which she was admitted shortly after the events, the subject of the said charge.

(iii) The learned trial judge failed to adequately put the defence case to the jury rendering the trial unsatisfactory and the verdict unsafe.

(iv) The learned trial judge erred in directing the jury as to the law relevant to murder and manslaughter, and in failing to put the appropriate legal directions in the context of the relevant evidence and the main contentions of the defence and prosecution.

(v) The learned trial judge erred in refusing to direct the jury as a matter of law:-

(a) that the burden of proof was on the prosecution to exclude accident as a reasonable possible cause of driving through the barriers into the river;

(b) that if the prosecution failed to prove that the actus reus of driving through the barriers into the river was an intentional or deliberate act, then the verdict in respect of the murder charge must be not guilty; and

(c) that the statutory presumption that the accused intended the natural and probable consequences of her actions applied only in respect of the consequences of actions which were proven to be voluntary or non accidental actions and that the statutory presumption did not apply to the effect that the appellant intended to drive through the barriers into the river.

(vi) The learned trial judge erred in refusing to direct the jury as a matter of law, that if the prosecution failed to prove that the appellant intended to cause serious harm or death to the deceased, but if the prosecution did prove that the appellant was reckless in that she deliberately drove in a manner which she knew involved a substantial risk of serious harm or death, or had adverted to the fact that such might be caused but proceeded in such highly culpable circumstances disregarding such risks, then the appellant should be found not guilty of murder but guilty of manslaughter. Further, or in the alternative, having regard to the legal submissions made before the closing speeches, and the response of the learned trial judge to those submissions in regard to criminal / gross negligence and recklessness, the trial was unsatisfactory and the verdict is unsafe.

(vii) The learned trial judge erred in law in directing the jury as to the law on manslaughter, including in particular by directing the jury to the effect that such a verdict was appropriate if the jury found that the death occurred as a result of the carelessness of the appellant, to a degree to be determined by the jury.

(viii) The learned trial judge erred in refusing to charge the jury that manslaughter was the appropriate verdict if the prosecution proved that the appellant deliberately drove through the barriers into the river and intended to cause harm to the deceased, but not serious harm or death.

(ix) The learned trial judge erred in refusing to charge the jury that manslaughter was the appropriate verdict where the death resulted from an unlawful / criminal and...