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Saturday 24 August 2019

Boy A's counsel asked for manslaughter to be put to jury

Justice Paul McDermott dismissed the application
Justice Paul McDermott dismissed the application

The defence team representing one of the boys accused of Ana Kriegel's murder asked the trial judge to allow the jury to consider a verdict of manslaughter for their client.

The application, which came after the jury had begun its deliberations, was dismissed by Justice Paul McDermott, who said it was "artificial" and "unrealistic".

Making the application, Patrick Gageby SC, for Boy A, said that if the jury found that he assaulted Ana it might not be satisfied beyond a reasonable doubt that he had the necessary intent for murder.

If that happened and the jury had no option for manslaughter it would be able only to acquit, he said, adding: "It's all duck and no dinner and it is not legally sustainable."

Complain

Prosecution counsel Brendan Grehan SC said Mr Gageby was taking some legal principles and addressing them to the court without engaging at all with the facts.

"I do complain it wasn't raised at the appropriate time and it wasn't raised with the judge before he dealt with the charge," he said.

Mr Grehan called it a "legal ambush" and said there was no defence put forward on behalf of Boy A other than his denial that he was in the house and his claim that he last saw Ana in the park.

Giving his ruling, Justice McDermott said Boy A had at all times denied being in the house and said during interviews that he last saw Ana in the park before her killing.

His defence was carried out "in the absence of any acknowledgement he was in the building", the judge said.

The evidence of former State Pathologist Professor Marie Cassidy was that Ana was violently assaulted and forensic scientist John Hoade gave evidence that blood spatter on Boy A's shoes showed that he either assaulted Ana or was in close proximity to her when she was assaulted.

Injuries

Her injuries, Justice McDermott said, were "catastrophic" and the prosecution maintained that the intention to kill was proved by the extent of her injuries.

The judge said the defence had not engaged with Prof Cassidy's evidence or any of the scientific or forensic evidence.

He further pointed out that the defence had not engaged with the prosecution's claim that intention to kill or cause serious injury was proved by the injuries she suffered.

He said this was not a criticism and pointed out that Boy A's defence had closed on the basis of whether the assault on Ana was planned.

Justice McDermott said it would have been appropriate for the defence to raise the matter at an earlier stage in the trial.

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