THE TEENAGER WHO murdered Urantsetseg Tserendorj as she walked home from work is to remain serving his life sentence after his conviction was today upheld by the Court of Appeal.
Delivering the ruling on behalf of the three-judge court, Justice Tara Burns said that none of the appellant’s grounds of appeal could be upheld.
The appellant, who was just 14 years old at the time of the offence and is now aged 17, had denied the murder of Ms Tserendorj but had pleaded guilty to her manslaughter.
On 11 November, 2022, he was found guilty of her murder by majority jury verdict following two trials. The first trial had ended with a jury disagreement. He was sentenced to life in prison, subject to a review after 13 years.
Ms Tserendorj was stabbed in the neck on a walkway between George’s Dock and Custom House Quay at the IFSC, Dublin on 20 January, 2021, after the teenager attempted to rob her as she walked home after work.
Ms Tserendorj was declared brain dead on the evening of 29 January, 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. She died on 4 February, 2021, when life support was turned off.
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 in July, Michael O’Higgins SC, representing the teenager, contended that the trial judge Justice Tony Hunt erred in permitting the prosecution to call evidence of another attempted robbery by the appellant and of comments made during that offence, which took place shortly after the fatal assault.
O’Higgins also submitted that the jury should have been discharged following a comment made by prosecuting counsel Seán Guerin SC during his opening address that the teenager “went for the jugular” when he stabbed Ms Tserendorj.
In a written submission, O’Higgins described the comment as “sensationalist and purely prejudicial”. However, Guerin countered that the phrase was “both physiologically and linguistically accurate” and that he stood by it.
In addition, O’Higgins submitted that the trial judge erred in admitting into evidence a hearsay account of the assault given by the deceased to her husband, and counsel further submitted that the trial judge displayed an attitude that was negative towards the appellant and inappropriate in light of the fact that he was a child.
In returning the Court of Appeal’s judgement today, Justice Burns said that the sole matter before the jury in the trial had been the question of the appellant’s intention, namely whether it was established beyond reasonable doubt that he intended to kill or cause serious injury to the deceased.
Justice Burns noted that counsel for the appellant asserted that the trial judge was incorrect to allow the jury to hear evidence of another attempted robbery by the appellant on the night he stabbed Ms Tserendorj.
During this incident the appellant attempted to steal a woman’s iPhone and took out a knife, saying to the woman: “That could have been a lot worse for you”.
Justice Burns said that the prosecution had contended that this evidence was “material to an understanding of his state of mind… in relation to the use of a knife and what it means to use a knife”. She said that the trial judge clearly instructed the jury not to consider this misconduct evidence in a prejudicial manner against the appellant.
Justice Burns said that this evidence was relevant for the jury to consider, and the trial judge did not err in determining that “the probative value of this evidence far outweighed any prejudicial effect”.
Concerning the remark by Guerin at the opening of the trial that the appellant “got the knife and went for the jugular”, Justice Burns said that while this comment was emotive, “it did no more than express the case the respondent was making against the appellant”. She said that the trial judge and Guerin himself had informed the jury that nothing said by the prosecution counsel was to be taken as evidence in the case.
“The comment was not of such nature that it raised the prospect of the jury being unable to properly carry out their function,” said Justice Burns.
Accordingly, she ruled that the trial judge did not err in failing to discharge the jury in light of this comment.
The next ground of appeal raised by the appellant was an account of the assault given by Ms Tserendorj to her husband, as counsel for the appellant contended that the legal requirements which permit a dying declaration to be admitted into evidence had not been established.
The jury at the trial heard evidence from Ms Tserendorj’s husband, Ulambayar Surenkhor, who said that his wife repeated to him over and over: “What can I do, Umbar, I am dying.”
Justice Burns said that Ms Tserendorj uttered these words in circumstances where blood was pouring from her neck, which established that the deceased was of the view that death was imminent, and this satisfied the test of having “a settled, hopeless expectation of death”.
“It is clear from the evidence of the deceased’s husband that she was of the view that she was dying,” said Justice Burns.
She said that the test for the admission of this evidence as an exception to the hearsay law was met and the trial judge did not err in admitting it.
The final ground of appeal concerned the assertion that the trial judge displayed an attitude that was negative towards the appellant.
O’Higgins had raised the issue of what he described as a difference in “ambience” between the first and second trials.
Counsel said the second trial had “a completely different atmosphere” and 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, and that in the first trial, the judge moved from her bench and spoke to the child in a manner that was appropriate.
However, counsel 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’.”
Justice Burns said that a trial involving an accused child is conducted in a different manner to one involving an adult, but she noted that the appellant had already been through a previous trial where the jury disagreed, and he was familiar with the manner in which a trial of this nature is conducted.
Justice Burns said that the complaints made with respect to the manner in which the trial judge conducted the case “have no effect with respect to the fairness of the trial and do not render the verdict in the trial unsafe whatsoever”.
“In circumstances where we have not upheld any of the appellant’s grounds of appeal, his appeal against conviction is dismissed,” said Justice Burns.
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