Court hears Marta Herda appeal case
CONTINUED FROM PAGE 13 to be unambiguous agreement between the parties and the trial judge that the jury would be told a not guilty verdict in respect of murder would have been appropriate if the driving into the river and the cause of death arose from recklessness.
But when the judge came to charge the jury there was not a single mention of the word reckless, Mr Ó Lideadha said. He said you could not properly infer malice from an action that was not deliberate .
Furthermore, if the prosecution proved Herda had driven into the river deliberately, they must then have proven there was the requisite intent to kill or cause serious harm, Mr Ó Lideadha submitted.
Counsel for the Director of Public Prosecutions Brendan Grehan SC said ‘in many ways’ the case was ‘crystal clear’.
Mr Grehan said it was set out at the very beginning of the case. ‘Marta Herda deliberately drove into the sea’.
Where it happened was ‘more like a runway’ than a roadway, Mr Grehan said, leading straight down to the docks and to a 200 metre stretch of straight pier.
He said the car drove straight down that runway, straight through two barriers. It could only have been ‘at great speed’.
There was a 13-foot six-inch skid mark apparently achieved by application of the handbrake and it would appear likely, Mr Grehan said, that Mr Orsos applied the handbreak because Marta Herda could have used the ABS breaks.
On a very cold, dark morning, the car travelled straight down and straight into the water, Mr Grehan said.
He said Herda’s first lie was undone by the fact she had to travel through main street Arklow to Mr Orsos’s house on the seaside end of town and when she was driving by his house she was alone.
There was a very short interval – around 15 minutes – between the last of Herda’s three phone conversations with Mr Orsos that morning and the moment she was seen running, soaking wet, up the harbour ‘shouting rape’. During the trial it was noted by Mr Ó Lideadha that there was no suggestion she had been raped.
Mr Grehan said he never made the case Herda confessed to murder but it was the case that she admitted deliberately driving into the sea. She said it to a number of people, emergency service personel ‘simply doing their job’, who had no conceivable interest in trying to incriminate her.
Mr Grehan said it was only four months later, when gardaí contacted Herda for the purpose of taking a second statement, that the suggestion of an accident first arose.
Mr Grehan said she was ‘caught out on lies’ in terms of the contact she had with Mr Orsos and how he got into her car. Furthermore, she had a ‘very convenient loss of memory’ in terms of how the car ended up in the river.
He said there was a low point in the trial when one of the witnesses who had given evidence of hearing a woman shouting rape was recalled ‘expressly on Ms Herda’s instructions’ to ‘put her character on the stand’.
He said Herda did not give evidence herself but the jury saw ‘hours and hours’ of her garda interviews. The jury could see, he said, what her ‘use and command’ of the English language was. She was very articulate, Mr Grehan said, and it was difficult to write down everything she said because of the ‘manner of her delivery’.
Mr Grehan said the complaint in the Court of Appeal was essentially that the jury were wrong to reach a guilty verdict on the combination of evidence that was there.
He said the prosecution’s case was that there simply had not been the legal controversies in the trial the defence were now seeking to rely on.
Mr Grehan will continue making submissions before Mr Justice George Birmingham, Mr Justice Alan Mahon and Ms Justice Máire Whelan, today.
It is the first criminal appeal heard by Ms Justice Whelan since her appointment to Court of Appeal last month.