The Gazette 1976

J UNE /J U LY 1976

GAZETTE

(9) Once the appellants had been convicted of capital murder, it was contended that no sentence should have been imposed on them in re- lation to other offences, of which they were convicted. As it was proper to indict the defendants on counts other than the count of capital murder, and if the Court convicts them, it is proper for the Court to impose a suitable sentence. (10) It is alleged that the appel- lants should have been present in Court when the death sentence was pronounced. However, in the latter portion of the trial, both accused had by their violent conduct time and again obliged the Court to re- quire their removal from the Court room. They were placed in cells con- venient to the Court, and were pro- vided with electronic devices to en- able them to hear everything that was said in Court. The members of the Court in the fact of provocation displayed at all times the greatest patience. In view of their deliberately contrived provocative behaviour, the Court had no alternative but to pro- nounce sentence in their absence. (11) The question raised is whether the Criminal Justice Act 1964 created a new offence, because it abolished capital punishment for most murders, and confined it in future to specified well-defined cases. If capital murder is a new offence, there would be a presumption that an accused person was not guilty unless he had a mens rea in relation to all the ingredients of the offence. In such a case, no person could be convicted of the capital murder of a Garda, unless the prosecutor estab- lished that the accused knew that the victim was a Garda acting in the course of his duty. S.3(5) of the 1964 Act states specifically that "capital murder shall not be treated as a distinct offence from murder for any purpose". It follows that no new offence was created. While the prosecution had the obligation of proving the additional allegations which will bring the offence within the category of capital murder, it is immaterial whether the accused knew that the person who pursued them was acting in the course of his duty. (12) The ground that the trial was in general unsatisfactory is rejected. The Court had in fact extended the greatest courtesy and consideration to the accused under extreme pro- vocation at all times. Their trial was conducted with absolute fairness, and the evidence pointed unequivocally to their guilt. The Court felt that the appeal raised a point of law of exceptional 27

as he did not use a gun, Noel Murray was not guilty of murder. In this case, the accused carried arms, and threatened to use them upon anyone opposing them. (3) Mrs. Murray contends that the shot she fired at Garda Reynolds was accidental. But this is quite un- sustainable as the Guard was hit at close range. Furthermore at the time Mrs. Murray was carrying a gun that was loaded and ready for use. (4) There was a mistrial, because the Special Criminal Court tried other counts in addition to capital murder. There is no rule of law which prohibits the trial of other offences with a count to murder. Counsel for the accused did not make any objection at the trial on this ground. This ground is accordingly rejected. (5) There was a mistrial, because the Special Criminal Court wrongly refused several applications for ad- journment made on behalf of the appellants. This arose from the fact that, on the 16th day of the trial, Stenson, who was being tried with them, became mentally ill, and his trial was adjourned. There was some question as to whether he could help upon the admissibility of the evid- ence made by the appellants to the Gardai, but the Court pointed out the application was premature. It was apparently proper for the Court to proceed without hearing this evidence. (6) A member of the Special Crim- inal Court, who was a District Justice, had on a previous occasion participated in an adjudication in a criminal trial involving both appell- ants. However this Justice had taken the constitutional oath to dispense justice without fear or favour, and there was no evidence that he had been prejudiced as a result of this. (7) The Special Criminal Court, in considering the case of Marie Murray, had not considered the doctrine of marital coercion. Under this doctrine, there is a presumption that if a wife commits a criminal act in the presence of her husband, this act was committed under coercion from her husband. However this de- fence is not available in the case of murder. (8) The Special Criminal Court had prevented each appellant from addressing the Court before sentence of death was pronounced. The Court contended that the appellants would not address them in an orderly way, and that this constituted a disruption of the Court. As the appellants, by their own alleged conduct, were pre- vented from speaking, this ground fails.

pany, is not a qualified person. Be- fore he became a director of this company, a Mr. W. had owned a doubtful premises called "The Revol- ution Club", where he had been convicted of selling wine after hours; but the relevant reputation is that of the company, and not of its Directors, which is irrelevant. The appeal is accordingly dis- missed, and an order of Certiorari and Mandamus will be directed to District Justice Donnelly to convict the company of breaches of the Licensing Acts. The State (John Hennessy and Chariot Inns Ltd.) v. Superintendent Commons — Supreme Court (Henchy, Griffin and Kenny JJ.) unreported, 29th July, 1976. CRIMINAL LAW APPEAL ON CAPITAL MURDER CHARGE DISMISSED ON ALL GROUNDS The appellants, Noel and Marie Murray, husband and wife, were convicted of the capital murder of Garda Reynolds in St. Anne's Park, Raheny, under the Criminal Justice Procedure Act 1964, in the Special Criminal Court on 9th June, 1976, and sentenced to death. They appeal on the following grounds :- (1) That the verdict of capital murder against the two defendants was against the weight of evidence, in that the evidence did not allegedly establish that Garda Reynolds pur- sued the get away car acting in the course of his duty, nor because he suspected that a felony had been committed but that he merely pur- sued them in order to remonstrate with the driver for dangerous driv- ing. This is rejected, because the behaviour of the four occupants of the get-away car, who had com- mitted a bank raid in Killester, in abandoning this car in St. Anne's Park, and fleeing from Garda Reynolds, and the conduct of Garda Reynolds in pursuing them on foot in civilian attire apparently amoun- ted to over-whelming evidence that Garda Reynolds was acting in the course of his duty in first pursuing the get-away car, and subsequently pursuing the occupants when they fled, and of actually suspecting the occupants of having committed a serious crime. (2) There was undoubtedly a com- mon design to rob the bank by force of arms, and this common design included all necessary steps in getting and keeping the stolen money. It cannot therefore be contended that,