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JANUARY/FEBRUARY IV77
«he was found guilty on that count, a verdict of guilty
°f murder would in the circumstances be correctly sub-
stituted under Section 3 (2) of the Criminal Justice
Act, 1964.
Mr. Justice Henchy said that in the case of Noel
Murray he would hold that as
mens rea,
in the form of
either intention, or recklessness, could not be attributed
10
Noel Murray, the verdict against him could not
stand. However, the alternative verdict against him of
tturder, as allowed by Section 3 (2) of the Criminal Jus-
"ce Act, 1964, was inescapable.
At all event, it could not be fairly inferred from the
evidence that the discharge of a shot at a Garda was
Psrt of the pre-arranged scheme of things, and more
Particularly the discharge of a Shot against a Garda in
the circumstances in which Marie Murray shot Garda
Reynolds.
Substituting a conviction for murder with the man-
datory sentence of penal servitude for life, he said that,
tinning with that sentence, would be the sentences of
Penal servitude imposed for the non-capital offences of
Miich he was convicted.
In regard to objections to the validity of the sentences
penal servitude imposed on her for the non-capital
offences, on the ground that they were incomptaible
Jrith the sentence of death, Mr. Justice Henchy said
tor the present, at any rate, these were removed by the
quashing of the sentence of death on Marie Munay.
Mens
Rea a necessary ingredient in all
these
Hrcumstances
Mr. Justice Griffin said in his opinion, on a proper
*topstruction of the Act, capital murder was a new
offence created by the Act and was not the offence of
tourder at common law.
The further question that arose was the nature and
®*tont of the
mens rea
required in the case of the mur-
der of a member of the Garda Siochana acting in die
course of his duty.
. He found it very difficult to accept that, once the
JNention or will, to seriously injure, was proved, the
^reachtas intended that guilt under Section 1 of the
y 6
4 Act depended on the accidental or fortuitious
J^nt that the person killed happened to be a Garda
1"}S to the course of duty.
There seemed to be no basis in justice, reason, or
*P2diency for imposing increased punishment on those
hose victim was, fortuitously, a Garda.
He would accordingly hold that
mens rea
was a nec-
JjSsary ingredient of all the elements which went to
up the offence of capital murder.
Mr. Justice Griffin said that the necessary
mens rea
rjhpu in an appropriate case, exist not only where
here was intention, but where there was recklessness
,
s
to the surrounding circumstances. In his view, reck-
jysness on the part of an accused as to the existence
1
Present facts would not be sufficient to support
conviction if a specific intent as to those facts was
accessary". Applied in the present case, the relevant
*ct was membership of the Gárda Siochána.
^
l n
his opinion, the necessary
mens rea
as to the mur-
w
as the intent required by Section 4 of the Act;
sta
n e c e s s a r
y
men
s rea
as to the concomitant circum-
ces was recklessness.
Recklessness essential
que •
r e a s o n o f
toe course which the trial took, the
the i°
n o f
recklessness was not considered. The Court
^refore misdirected itself in law in relation to the
con**
r e u n e c e s s a r
y
tor capital murder and did not in
jl
s
-quence make'any findings as to whether, or not.
accused had adverted to" the possibility that the
deceased was a Gárda. The Special Criminal Court
was the Court which must find the facts.
As to Marie Murray, Mr. Justice Griffin said the
mens rea
required was not that she ought to have known
that the possibility existed that the person was a Gárda,
but that she must necessarily have known that
this possibility existed. Before their could be reckless-
ness on her part there must be advertence to this pos-
sibility.
The case therefore must be approached on the basis
that there was no evidence that she knew that the victim
was a Gárda.
Mr. Justice Griffin said that both of the Murrays
were highly intelligent as was demonstrated by their
submissions and arguments at the trial.
In his opinion, there was, at the trial, evidence on
which it would have been open to the
T r i a l CY»»irt
to
hold (1), that in all the circumstances Marie Murray
must have adverted to the fact that there was a nsic
that their pursuer was a Gárda, and, (2), that, in
shooting that person who was holding her husband,
she disregarded that risk.
If the Special Criminal Court, as the fact-finding
Court, so found, it would follow as a matter of law that
she would have the necessary
mens rea
to support a
conviction for capital murder.
In Noel Murray's case, he could see no logical or
rational basis for differentiating between him and Maris
Murray. They were engaged in a common design to
rob the bank. On the findings of the trial court, Noel
Murray was the person who appeared to be in charge
of the operation. Each carried a loaded gun, ready to
fire, and his gun had the safety catch off. The only in-
ference which could be drawn from these facts was
that, if necessary, the guns would be used for the pur-
pose of carrying out the robbery, or enabling the par-
ticipants to escape. Each was in possession of a gun
to the knowledge of each other.
Mr. Justice Griffin said that at some time during the
chase, Noel Murray gave his gun, fully loaded, with
a bullet in the breach and the safety catch off, to his
wife. On the available evidence, he had precisely the
same means of knowledge as his wife of the possibil-
ity of the person by whom they were being followed
being, in fact, a Gárda. In his opinion, on the facts, there
was evidence on which it would be open to the trial court
to hold that Noel Murray could properly be convicted of
the capital murder of Garda Reynolds.
For the reasons stated, as there was a misdirection
in law at the trial, he would quash the conviction of
capital murder in both cases, and hold that a re-trial
on the count of capital murder should be directed
in respect of each.
Clear language necessary for mens rea in capital
murder
Mr. Justice Kenny said there was coercive evidence
that Marie Murray shot the Gárda and that her hus-
band was present. Gárda Reynolds was not in uniform,
and there was no evidence that he gave any indication
to either accused that he was a Gárda, or that he was
acting in the course of his duty. It had not been proved
that either accused knew that he was a Gárda. or that
he was acting in the course of his duty. It had not been
proved that either accused knew, or had grounds for
believing that he was.
If the 1964 Act did not create a new offence of cap-
ital murder a verdict of capital murder would have
been appropriate if the prosecution proved, beyond
reasonable doubt, that Marie Murray intended to kill,
or cause serious injury, to the Garda even though she