Lawyers for Andrzej Benko (48) of Ladyswell Road, Mulhuddart, claim his conviction following a jury trial at the Central Criminal Court in April 2014 for the attempted murder of his wife, Joanna, at their home on July 5th, 2010 is unsafe.
At the Court of Appeal on Thursday, Seán Guerin SC for Benko questioned whether on the circumstances of the case the jury was entitled to infer that death was a natural and probable consequence of his client’s actions.
Mr Guerin claimed a grave error had been made by the jury not being offered any guidance by the trial judge on adopting such a presumption.
Intention
He acknowledged that his client had made admissions to gardaí that he had intended killing his wife at several stages but said it was not clear from the evidence that Benko held that intention at the time he committed the physical assault on her.
The Court of Appeal heard lawyers for Benko had asked for a charge of assault causing serious harm to be added to the indictment for the attack on his wife, for which he would have pleaded guilty, but the request had been turned down by the DPP.
Mr Guerin said the prosecution had left it to the trial judge, Mr Justice Patrick McCarthy, to put an alternative verdict to the jury but it had not been made available.
Mr Guerin said there was no dispute that it was possible that the victim could have died as a result of the assault. However, he claimed there was no evidence from any medical witnesses that death was “probable” or a natural consequence of Benko’s actions.
“It is an extremely important matter,” Mr Guerin remarked.
He argued that it was not clear as a matter of common law in Ireland, apart from murder cases, if a presumption that death was the natural and probable consequence of certain actions could be made.
Mr Guerin said the starting point for any presumption should be neutral and not favour either the prosecution or defence, while there were also questions over what degree of probability should be met to allow a jury draw inferences.
He also pointed out that there had been almost no pre-planning by Benko in the attack on his wife, while he had made no effort to hide his role in the offence.
Benko had bought flowers for his wife for her birthday earlier that day and intended taking her out later that evening for dinner.
The father of one also alerted the emergency services about his wife’s injuries and had presented himself at Blanchardstown garda station where he confessed to killing his wife.
Common sense
Opposing the appeal Dominic McGinn SC, for the DPP, said Benko’s lawyers were attempting to over-complicate what was “a logical and straightforward concept” that the natural and probable consequence of striking a sleeping woman on the head three times with a hammer was death.
Mr McGinn said it was a matter of common sense to reach such a conclusion.
“He deliberately took a heavy weapon and struck a sleeping, defenceless woman three times on the head,” Mr McGinn said.
He pointed out that Benko had made admissions about his intention at various stages to kill his wife.
While he had prevaricated about attacking her, Mr McGinn said Benko’s intention once he had decided to attack her was to kill.
The original trial heard the couple had been having marital problems with Benko accusing his wife of taking and dealing drugs and spending all his money.
Ms Benko, now 41, suffered life-changing injuries and requires full-time care.
The trial heard that the couple had been having marital problems, with Benko telling gardaí that his wife had been taking and dealing drugs and spending all his money.
Although Benko had stated he had only used 20 per cent of his force when hitting her, Mr McGinn said the jury had heard the evidence and still reached the verdict of attempted murder.
The President of the Court of Appeal, Mr Justice George Birmingham, sitting with Ms Justice Aileen Donnelly and Ms Justice Úna Ní Raifeartaigh, reserved judgement in the case.
