A teenager who was 14 when he stabbed Urantsetseg Tserendorj to death has launched an appeal against his murder conviction, arguing that allowing evidence from a second woman the adolescent threatened and tried to rob a short time after the fatal assault was “prejudicial”.
Ms Tserendorj was stabbed in the neck on a walkway between George’s Dock and Custom House Quay at the IFSC, Dublin on January 20th, 2021, after the teenager attempted to rob her.
She was making her way home on foot on the night when she was approached by the teenager who asked for money. When she said she did not have any money, he stabbed her.
He admitted stabbing Ms Tserendorj when gardaí went to his home the following day in response to a report of a stolen bicycle.
The youth, who cannot be named because he is a minor, had denied the murder of Ms Tserendorj but had pleaded guilty to her manslaughter on January 29th, 2021. He was found guilty of her murder by a jury last year following two trials. The first trial ended with a jury disagreement.
Life sentence
In February of this year, the teenager was sentenced to life in prison, subject to a review after 13 years.
Ms Tserendorj was declared dead on the evening of January 29th, 2021, because of a lack of oxygen to the brain caused by a stab wound no bigger than 1.5cm that partially severed her carotid artery.
The mother of two, who worked in Dublin’s city centre, had moved to Ireland with her husband and two children approximately 15 years before she was killed.
At the Court of Appeal on Friday, Michael O’Higgins SC, representing the now 17-year-old, contended the trial judge Mr Justice Tony Hunt erred in permitting the prosecution to call evidence of another attempted robbery by the accused and of comments made during that offence, which took place shortly after the fatal assault.
He submitted that this was in circumstances where this evidence had “no probative value” or where the prejudicial effect of the evidence was “disproportionate” to any probative value it might have had.
Mr O’Higgins also submitted that the jury should have been discharged following a comment made by prosecuting counsel Sean Guerin SC during his opening address that the teenager “went for the jugular” when he stabbed Ms Tserendorj.
In a written submission, he described the comment as “sensationalist and purely prejudicial”.
Responding during Fridday’s hearing, Mr Guerin said the phrase was “both physiologically and linguistically accurate” and said he stood by it.
Stabbing incident
Counsel said if there was to be an issue in the case about the use of facts, the court should look at Mr O’Higgins repeated use of the word jabbing to describe the stabbing incident.
He said he had “never in my life” heard someone describe a swinging motion, full width as jabbing and submitted to the three-judge court that they could view the for themselves on CCTV compiled for the trial.
Regarding the evidence put before the court in relation to a second incident shortly after the fatal stabbing, Mr O’Higgins said that in a voir dire [a hearing in the absence of the jury] during the trial, the defence had challenged the admissibility of Ms Tayo Odelade’s evidence.
This witness was to give evidence of an attempted robbery and the production of a knife by the teenager, which occurred 25 minutes after the incident with Ms Tserendorj.
In her statement to gardaí, Ms Odelade said she had been walking on Amiens Street and took out her phone to listen to some music. Not long after, the appellant tried to grab it from her.
There was a struggle, words were exchanged and Ms Odelade started to walk back in the direction she had been going. The teenager was behind her and said: “That could have been a lot worse for you”.
Mr O’Higgins said the defence objected to this evidence being admitted on the basis that it was evidence of serious misconduct on the part of the appellant, which had no probative value and which would have an “entirely prejudicial effect”.
Admissible
Counsel for the prosecution, however, submitted that the words used in the course of the attempted robbery was evidence that the teenager understood the seriousness of using a knife.
Ultimately the court ruled that the evidence of Ms Odelade was admissible.
Mr O’Higgins submitted that the trial judge had erred in permitting the prosecution to call this evidence and pointed out that the trial judge in the first trial had ruled against admitting it.
However, Mr Guerin denied that judge had erred as alleged.
He said that during the voir dire in the second trial, he had submitted that the comment made to Ms Odelade revealed “a state of mind, a state of understanding about the seriousness of use of a knife, which a jury can reasonably infer would also have been in existence half an hour earlier and that therefore informed his state of mind.”
He said the trial judge, having heard submissions from both sides, considered his position overnight before ruling that he was satisfied that the statement “given the circumstances shortly after what had just happened, is in fact a sufficiently wide window onto his state of mind at and around that particular time to be relevant for the jury to consider in determining what the facts of this intention 20 minutes earlier were”.
'Deliberate decision'
The trial judge said that in his view, this showed “a deliberate decision to expose the knife when he has been, as he perceived it, cheeked by his potential victim”. He said this had an “uncomfortable echo” of intervening in a certain way when things didn’t go his [the appellants] way.
Mr Guerin submitted that evidence the appellant had, 25 minutes after stabbing Ms Tserendorj, produced a knife and uttered the words “that could have been a lot worse for you”, was capable of showing that he was fully aware that a knife could be used to inflict serious injury, thereby “illuminating his state of mind”.
He also submitted that this evidence was all the more relevant in circumstances where the appellant’s case was that he did not intend to kill or cause serious injury to Ms Tserendoj.
The lawyer contended that the evidence was “highly relevant” and of “significant probative value”.
In his submissions to the three-judge court, Mr O’Higgins said this was a “finely balanced case”. He said the jury in the original trial failed to reach a verdict and in the second trial the teenager was convicted by a “bare majority” after several days of deliberation.
He said on the one hand, there was footage which showed what was clearly a dangerous assault by a person committing a robbery, armed with a knife. There were two “swiping gestures” with the knife he said, towards the victim’s upper torso, one of which connected.
Counsel said on the other hand, the person committing the assault was a 14-year-old-child who was intoxicated at the time and who, in the aftermath, showed every indication of shock and remorse of the consequences of his actions.
'Emotionally-charged' case
“Against this background, it was particularly vital that the jury would be in a position to dispassionately assess the sole issue – whether the appellant had intended serious harm – without prejudicial matters interfering with their assessment,” he said.
The barrister said their task was made more difficult by the fact that it was an “emotionally-charged” case.
He said against such a highly charged background, and given how finely balanced the case was, any prejudice was capable of having a decisive negative effect on the appellants prospects of a fair trial. He submitted that that was “exactly what happened”.
Mr O’Higgins also raised the issued of what he described as a difference in the “ambience” of the first and second trial.
He said during the second trial it was “a completely different atmosphere, it was a completely different case”.
He said when a juvenile is being tried, the procedures in court should be different than those for an adult.
He said in the first trial, the judge moved from her bench and spoke to the child in a manner that was appropriate. He said when it came to this trial, “it was ‘you’ve been here before, you know the procedure. If you need a break let us know’.”
It was also argued that the trial judge erred in law in admitted into evidence a hearsay account of the assault given by the deceased to her husband, and erred in particular in finding that the hearsay account fitted the criteria of a valid dying declaration.
Mr O’Higgins said there was “a significant degree” of interacting prejudice between the comments made in the opening speech, the misconduct evidence and what he termed as “other prejudicial and unsatisfactory aspects of the proceedings”.
Counsel submitted that the “cumulative effect” of the prejudicial evidence and other circumstances of the teenager’s trial were such that the verdict was unsafe.
In the teenagers first trial, these evidential issues and prejudicial matters did not arise and the appellant was not convicted, the lawyer said. He said in the retrial they proved “decisive” and the young man was convicted.
Court of Appeal President Mr George Birmingham said the court would reserve judgement in this matter.
“We’ll give a decision when we’re in a position to do so,” he added.
