The Gazette 1977

AZLTN

JANUARY/FIZBRUARY 1977

did not know he was a Gárda in the course of his

duty.

When he took into consideration that the expression

of "capital murder" was unknown to our law before

1964, and that it was defined by the 1964 Act, he came

to the conclusion that it was a new offence and was

not to be equated with murder.

Dealing with the question whether Marie Murray

knew, or suspected that Garda Reynolds was a mem-

ber of the force, acting in the course of duty, or that

she was recklessly indifferent as to whether he was or

not, the Judge said it was a general rule of law that the

Act itself was not criminal, unless it was accompanied

by a guilty mind.

The Oireachtas might make acts crimes, although the

accused was not aware that he was committing an off-

ence, but to effect this, clear language must be

used. In the absence of such an indication the general

rule was that the guilty mind, or criminal intent, must

be established.

Mr. Justice Kenny said there was no evidence that

Marie Murray knew that the Garda was a member

of the force, or that she knew anything from which

she could infer that he was. In those circumstances she

could not be held to have been recklessly indifferent

as to whether he was.

As Marie Murray did not know that Garda Reynolds

was a member of the Garda Siochana, and as she did

not know anything from which she could infer, or

advert, to the fact that he was, and as she was not

recklessly indifferent as to whether he was or not, she

was not guilty of capital murder.

Hie would therefore substitute a verdict of guilty of

murder against both accused for the verdict of capital

murder.

Mens Rea discussed

Mr. Justice Parke said that he agreed with the con-

clusions reached in the judgments delivered by Mr. Justice

Henchy and Mr. Justice Griffin except in so far as the

judgments of Mr. Justice Griffin related to Noel Murray.

He said he agreed with all the judgments delivered

in finding that capital murder was a new statutory

offence.

In applying the principle of

mens rea

it was essential

to distinguish two different states of mind: knowledge

and intention. With the greatest respect, he believed

that failure to distinguish betwen knowledge and in-

tention had been the cause of much judicial confusion.

He said he was in agreement with the passage in the

judgment of the CourTof Criminal Appeal in this case.

»n so far as it laid down that an accused person should

not be guilty of capital murder unless he had a

mens

rea in relation to all the ingredients of crime, but he

dilL» e«i .iom the conclusion which was drawn from that

{md ng namely; that would mean that no person could

be convicted of the capital murder of a member of the

Garda Siochana unless the prosecution had established

that the accused

knew

the victim was a member of the

Garda Siochana and was acting in the course of his

duty.

Mr. Justice Parke said he shared the view expressed

by Mr. Justice Henchy, Mr. Justice Griffin and Mr.

Justice Kenny that recklessness could constitute the

necessary element of

mens rea.

He expressly adopted

the observations of Mr. Justice Griffin on this subject.

The question of whether Marie Murray had, or had

not, such

mens rea

was not considered by the Special

Criminal Court, because that Court misdirected itself in

law by finding that capital murder was not a new stat-

utory offence and did not, therefore, direct its mind

to the degree of

mens rea

required for such new

offences.

He would accordingly quash her conviction on the

charge of capital murder and order a retrial on this

charge.

He was not satisfied that the same considerations

applied to Noel Murray.

Furthermore, Noel Murray, had no gun, and was.

therefore, never faced with the decision of whether

to fire, he was in the grip of Garda Reynolds, so that

he had neither the opportunity, nor the means, of

either assisting, or preventing his wife in the commis-

sion of the actual murder.

After Mr. Justice Walsh announced the overall re-

sult of the appeal, Mr. Seamus Sorahan, SC. for the

Murrays, said that as both had been under sentence

of death for six months, which, he thought was a

record for England and Ireland, the exception being

William Joyce in 1945, could the decision of the Court

be communicated by telephone to his clients so that

they could communicate with other prisoners, he asked.

Mr. Justice Walsh said the Chief State Solicitor was

present in the Court and no doubt the Governors

would be made aware of the decision.

STATUTES, DECISIONS AND TEXTBOOKS

CITED

1. The People v. Dwyer (1972) I.R. 416.

2. The State v. McMullen (1925) 2 I.R. 9.

3. The Criminal Justice Act 1964.

4. R. v. Galvin (No. 1) (1961) Victoria (Australia)

L.R. 733.

5. R. v. Galvin (No. 2) (1961) Victoria (Australia)

L.R. 740.

6. The Queen v. Reynhoudt 36 Australian L.J.R. 26.

7. R. v. McLeod (1954) 111 Canadian Criminal

Cases 106.

8. Glanville Williams. Criminal Law. 2nd edition.

9. R. v. Forbes and Webb 10 Cox Crim. Cases 362.

10. R. v. Maxwell and Clanchy (1909)2 Crim. App

Repts. 20.

11. Offences against the Person act, 1861, Sec. 38.