The Gazette 1976

GAZETTE

UNE

1976

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,

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.

(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