Monday 19 March 2018

Waitress who drove man who loved her into deep harbour opens appeal against murder conviction

Marta Herda. Photo: Collins Courts
Marta Herda. Photo: Collins Courts

Ruaidhrí Giblin

A 30-year-old woman who drove a man who loved her into a deep harbour, where he drowned, has opened an appeal against her conviction.

Marta Herda, of Pairc Na Saile, Emoclew Road, Arklow, Co Wicklow, knew her passenger could not swim when she drove her Volkswagen Passat through the crash barriers at South Quay, Arklow shortly before 6am on March 26, 2013.

Herda had pleaded not guilty to the murder of 31-year-old Hungarian man Csaba Orsos but a jury at the Central Criminal Court found her guilty and she was given the mandatory life sentence by Mr Justice Patrick McCarthy on July 28, 2016.

The Central Criminal Court heard that the Polish waitress escaped through the driver’s window at the harbour but her colleague’s body was found on a nearby beach later that day. A post-mortem exam found that 31-year-old Csaba Orsos died from drowning and not from injuries related to the crash.

The trial heard that the handbrake had been applied before the car entered the water and that the only open window was the driver’s.

Herda moved to appeal her conviction on a number of grounds today broadly including the issue of recklessness; Whether or not the driving into the river was accidental or deliberate; If it was deliberate, whether “assault manslaughter” was still open to the jury: “Alleged confessions” and the judge's charge to the jury with regard to circumstantial evidence.

Counsel for Herda, Giollaíosa Ó Lideadha SC, said the prosecution ran a case, at least in the beginning, that this was a deliberate, pre-meditated, nasty, nefarious luring of the deceased out for the purpose of an “execution” involving a plan to drive into the river with the window down knowing he could not swim and knowing she could.

That was one prosecution theory that seemed to be central to the case, he said.

However, at the end of the case, he said the prosecution appeared to acknowledge perhaps the pre-meditated scenario was “far-fetched”. Their case turned to another theory, Mr Ó Lideadha said, that Herda might have just “lost the head” and was trying to commit suicide.

That was a very different type of case and, part of that, was the proposition that Herda effectively “confessed”.

Mr Ó Lideadha said there was no evidence at all on Herda's state of mind or deliberate intent apart from these “alleged confessions”. She never said she was driving into the river knowing she was driving into the river, he stated, and there was no suggestion she was attempting to commit suicide.

He said there was a materially important and distinct “language issue” which should have attracted a comment or warning from the trial judge as a matter of fairness.

He said the defence had demonstrated that when Herda answered garda questions, not everything she said was written down or understood. Sometimes the sequence of sentences written down gave the impression of a sequential description she actually did not give.

At no point did she say or mean she drove into the river deliberately yet the prosecution made the case that she admitted driving in deliberately and there was no comment at all from the trial judge on how this matter should be approached, counsel submitted.

There was evidence of Herda telling gardaí: 'I drive to water I wanted it to stop all this' but on the video she's actually saying: 'It wasn't the reason I drive there'. “It wasn't the reason” wasn't written down by the interviewing garda, he said.

Mr Ó Lideadha said the circumstantial evidence on its own could not have grounded a conviction for murder but the trial judge essentially conveyed to the jury the proposition that circumstantial evidence could ground a conviction.

He asked the Court of Appeal to consider that point as a matter of law.

Mr Ó Lideadha said “we have a scenario” where a woman has not behaved consistently towards a man who appears to be obsessed with her.

Instead of giving him the cold shoulder, as many would say she should have done, counsel said, she gives him the cold shoulder and on the evidence she gives him “some hope”.

There was a suggestion she was getting some psychological benefit in maintaining contact with him, counsel said.

Mr Ó Lideadha said there was a danger that a “social offence as it were” of “perhaps leading him on” for “psychological” reasons has been transformed into a miscarriage of justice. That's what most of the items of circumstantial evidence were relevant to.

He referred to the keeping of a Valentine's card and the question of whether Mr Orsos' door was ajar when he supposedly left his home.

Phone calls, picking him up and so forth was consistent with an inconsistent posture on her part towards Mr Orsos, Mr Ó Lideadha said.

He asked the court to think about the idea of a person deliberately putting their window down and making a decision to “execute somebody” else by driving through barriers on the basis that she would be able to escape.

He said the circumstantial evidence did not point to murder and the trial judge's direction that the circumstantial evidence could amount to murder was not founded in law.

Although at times she felt harassed by him, counsel said, Herda did not adopt the position she probably should have adopted – to “freeze him out as it were” and not have communication with him.

Legally, Mr Ó Lideadha submitted that the trial judge did not correctly charge the jury with regard to whether or not the driving into the river was accidental or deliberate.

He said it was essential for the trial judge to make clear to the jury that presumptions regarding consequences of action could only apply if there was firstly a determination that the action itself was deliberate.

Mr O Lideadha said there appeared 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 her 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.

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