The Gazette 1977

GAZ

LTN

JANUARY/F

BRUARY 1977

Police, though they were aware of his identity.

He thought it was an inescapable inference that the

Oircachtas intended that the offence of capital murder

should be a separate and distinct offence from those

categories of murder which one might describe as

non-capital.

Capital murder cannot be inferred if accused did not

know victim was a Gárda

The Oireachtas, in enacting Section 4 of the 1964 Act,

repealed what had hitherto been the law, namely, that

the killing of an officer or a member of the Gárda

Siochána, done in the course of, or for the purpose of

resisting, or preventing a lawful arrest, was murder in

the absence of any intent to kill, or cause grievous

bodily harm, even in the case where it was known to the

assailant that his victim was a Gárda.

Mr. Justice Walsh said he found this expressed

legislative intention utterly irreconcilable with an inten-

tion which it was now sought to impute to the Oireach-

tas that a person could be guilty of the offence of cap-

ital murder by the fortuitous circumstance that his vic-

tim was, unknown to the murderer, a Garda.

Such a meaning could not be read into it in the

absence of clear and unambiguous wording to that

effect. There was no such wording in the Act. The

absence of a word such as "knowingly", in the statute,

did not raise any question of constructive knowledge;

that was to say, that if the appellants did not know

that their victim was a Civic Guard, they ought to have

known it. The whole tenor of Section 4 of the Act

contradicted this.

He held that a person could not be guilty of the

capital murder of a Gárda, in the course of his duty,

unless he intended to do serious injury to a Gárda, in

the course of his duty, and that injury caused his

death. The state of mind of the accused must have been

not only that he foresaw, but also willed, the possible

consequence of his conduct. There could not be in-

tention unless there was also foresight, and it was

this objective element of foresight which constituted the

necessary

mens rea.

Mr. Justice Walsh added that the appellants were

undoubtedly guilty of murder, but in his view the ab-

sence of the knowledge of the status of their victim

meant that the offence of capital murder had not been

established. For the reasons he had already given, it

could not be said to be intentional unless the evidence

established that the person who fired the shot—Marie

Murray—knew that her victim was a Gárda.

The position of Noel Murrray was that he could

not be convicted of capital murder unless it was estab-

lished that he had the same knowledge, or at least

that it was part of a common design to murder a

Gárda. if it should prove necessary, to execute and

undertake, and in the course of which the Gárda was

murdered.

The Judge said that the prosecution had been con-

ducted on the basis of an incorrect interpretation of

the law; that was, that capital murder was not a new

offence, and the evidence called and the submissions

made took no account of the necessity to establish the

mens rea

on the part of the appellants.

Mr. Justice Walsh said the trial Court had misdirect-

ed itself in law on this fundamental point in ruling that

capital murder was not a new offence, and in ruling

that the question of the degree of knowledge, if any.

of the appellants of the status, or occupation, of their

victim was not relevant to the proof of the offence of

capital murder, and that it was not necessary for the

prosecution to prove

mens rea,

concerning that aspect

of the case.

In the result, said the Judge, the Trial Court made

no findings as to the state of knowledge, or the state

of mind, of either of the appellants concerning this

matter. This was a misdirection of law crucial to the

charge of capital murder.

Even if recklessness was sufficient to constitute the

necessary

mens rea,

which, in his view, it was not, in

his opinion the prosecution could not now seek to estab-

lish in the Supreme Court recklessness as constituting

the necessary

mens rea.

The Supreme Court could not be asked to uphold a

conviction of capital murder by finding facts which not

only were not found by the Trial Court, but which

the Trial Court did not even consider.

For the reasons given, he was of opinion that the

conviction of capital murder in each case should be

quashed and that a conviction in respect of the murder

of Garda Reynolds should be substituted in each case,

and that the Court should impose the mandatory stat-

utory penalty of penal servitude for life on each. In his

view the other convictions and sentences should not

be in any way altered.

Capital Murder and murder distinct

Mr. Justice Henchy said that capital murder and

murder must be treated as distinct offences for the pur-

pose of proof of guilt, of sentence and of consequence

of sentence. The bar in Section 3 (5) of the Criminal

Justice Act, 1964 on treating capital murder as a dis-

tinct offence from murder for any purpose must be

read as a prohibition against doing so for any proced-

ural purpose. The legislature could not have intended

that the substantive and consequential differences be-

tween the two offences were to be ignored.

Capital murder, in his view was a new offence, or type

of offence in the sum of its essential component

elements. It would be repugnant to reason and fair-

ness if the death penalty were to depend on the out-

come of what in effect would have been a lottery as

to the victim's occupation and activity. Fortunately,

as he read the 1964 Act that conclusion did not follow.

He found an unrebutted persumption that the Oir-

eachtas in enacting Section 1 of the Criminal Justice

Act, 1964 and creating the new offencc of capital mur-

der, defined for the purpose of this case as "murder of

a member of the Gárda Siochána acting in the course

of his duty" intended that the section should be read

as requiring

mens rea,

for all the elements of that de-

finition. To hold otherwise, would remove any logical

or ethical basis for the distinction between murder and

capital murder.

Recklessness considered

Mr. Justice Henchy said the Special Criminal Court,

acting on the basis that neither intention, nor reck-

lessness, was necessary for the capital murder charge,

did not make a finding that Marie Murray had die

required guilty mind, which in the circumstances was

recklessness. The Court of trial did not address its mind

at all to the question. It misdirected itself in law, there-

fore, in holding her guilty of capital murder without

finding that in shooting Garda Reynolds she was reck-

less as to whether he was a Garda acting in the course

of duty. The verdict of guilty on the count of capital

murder, therefore, could not stand.

Whether Marie Murray had the required reckless-

ness was essentially a matter of fact to be inferred from

the evidence. It was not a matter that could be deter-

mined at second hand. He held that in the case of Marie

Murray there should be a retrial on the count of cap-

ital murder, the verdict of which would depend, prim-

arily, on whether she had the required recklessness. If