The Gazette 1977

GAZ

LTN

JANUARY/F

BRUARY 1977

THE MURRAY CASE

This vital decision of the Supreme Court is

of capital importance. In view of its length, it

was not found practicable to include it in the

green pages. It wll not be officially reported

for at least one vear. In view of the demand,

particularly by law students, it has been de-

cided to publish it as an ordinary article.

Death Sentence on Noel Murray quashed because he had

°o gun, and was not guilty of capital murder

Marie Murray will stand new trial on question of

recklessness

The Supreme Court has, on 9 December, quashed

file conviction and sentence of death on Noel Murray

for the capital murder of Garda Michael Reynolds

nd substituted a conviction for murder, with a sen-

tence of life imprisonment, and ordered a retrial on

charge of capital murder of his wife, Marie Murray.

The couple had been convicted of the capital murder

of the Garda in St. Anne's Park, Rahenv, Dublin, in

September 1975, following an armed bank robbery

t Killester and were sentenced to death in the Special

^riminal Court. Their appeal was dismissed, but the

Court granted them a certificate of leave to appeal to

file Supreme Court, and their appeal was heard on the

first three days of November. The judgments, which

totalled about 25.000 words, and examined the legal

Position in several other countries, had been completed

to five weeks.

These were five separate judgments delivered which

T all took three hours to read in the crowded Court-

>om. Mr. Justice Henchy, Mr. Justice Griffin, Mr.

'Jstice Kenny and Mr. Justice Parke held that the test

Jj guilt was whether the accused intended to kill a

Uarda, or was reckless as to whether his victim was a

Uarda. Mr. Justice Henchy, Mr. Justice Griffin and Mr.

Justice Parke held that there should be a retrial of

Marie Murray on the capital charge, as there was

evidence on which the trial Court could find that she

JJas reckless. Mr. Justice Griffin, in his judgment, said

JJat there should be a retrial of Noel Murray also on

jfto capital murder charges as the trial Court could

*tod that he was reckless. Mr. Justice Kenny said there

no evidence of recklessness against either Noel or

Marie Murray, so they should be found guilty of

tourder and not capital murder.

.Mr. Justice Walsh. President of the Court, in his

Jjfigment, said that both should be found guilty only

* murder, as the test for capital murder was whether

^accus ed actually knew that the victim was a Garda.

. Mr.

Justice Walsh, who presided, said there was no

oubt, whatever, that on the evidence adduced at the

jjtol each of the Murrays was guilty of the murder of

Reynolds.

R degrees of guilt had to be indicated then, on the

J^fience, Marie Murray was by far the more guilty. On

J* evidence, she wilfully, and without request from

" husband, undertook to rescue him from Garda

^toolds whom she killed to elfect her purpose.

. ^t ot was in issue was whether, on the evidence and

the circumstances of the case, the verdict of capital

«^dcr found by the Spccial Criminal Court against

ppcllants could be sustained.

R Was clear that this case must be approached on the

s that neither appellant was aware that the victim

member of the Garda Siochana, or that he was

"JjjR in the course of his duty,

^^h i le it might very well "be that the Gárda, as he

e w

close to the robbers, called on them to stop and

revealed his identity, nevertheless there was no evidence

whatever of that fact and there was no evidence on

which knowledge of his being a Civic Guard could be

attributed to the appcllants.

Mr. Justice Walsh said the Spccial Criminal Court

was of opinion that, as the appellants were guilty of

murder, they were guilty of capital murder by reason

of the fact that the person murdered was a member

of the Gárda Siochána acting in the course of his duty.

Dealing with the appellants' ground of application

for leave to appeal to the Court of Criminal Appeal,

Mr. Justice Walsh said the Court came to the conclu-

sion that the Criminal Justice Act, 1964. did not create

any new offence and that, therefore the ingredients in

relation to the

mens rea,

necessary to constitute the

offence of murder, were identical with those necessary

for capital murder and, consequently, that the absence

of knowledge of the fact that the murdered man was

a member of the Gárda Siochana was immaterial to

the verdict.

The Court of Criminal Appeal, however, felt that

its decision necessarily involved a point of law of ex-

ceptional public importance, and that it was desirable

in the public interest, that an appeal should be taken

to the Supreme Court.

Mr. Justice Walsh said that the first point to be

decided was whether, or not, the 1964 Act created

a new offence of capital murder, or whether it simply

continued the then existing offence of murder, so that

the cffect of the Act was simply to remove the death

penalty for some murders, and to leave it stand for

other murders, including the murder of a civic guard

in the course of his duty.

New offencc on capital murder

Mr. Justice Walsh said that, prior to the passing

of the 1964 Act. there was no offence known to the law

as capital murder. He thought it was a fair inference,

that the Oireachtas bore in mind, when enacting this

legislation that our Police Force was an unarmed

Police Force, and had a special claim to whatever

additional protection the law could give its members

by providing the deterrent of the death penalty for

violent criminals with whom members of the Gárda

Siochána often had to contend.

The same, or similar, considerations probably existed

with regard to the murder of prison officers in the

course of their duty. What was remarkable was that

all the other categories of capital murder in the Act

were what might be described as political murders, or

politically-motivated murders.

Mr. Justice Walsh said that up to the 1964 Act

there had never been a murder of a member of the

Gárda Siochána, in the course of his duty, otherwise

than in the course of a "political" crime.

It was to be noted that a person going to the aid of

a member of the Gárda Siochána, in the course of his

duty, was not protected in the,same way as the Gárda

himself. This, to his mind, indicated that what the

Oireachtas had in mind was (1) that an assailant who

contemplated killing a Gárda would be aware that

his punishment would be quite different from that which

he would incur by killing a private citizen and (2),

that if that was to have a deterring effect, it would

have it only if the assailant was aware that his prospective

victim was a Garda.

Mr. Justicc Walsh said it was a fair inference that

the bank robbers were prepared to kill, if necessary,

in the course of the robbery, and the flight from it,

and that if. in a confrontation with civilians and police,

the success of their flight depended on killing someone,

the victim was more likely to be a member of the