The Gazette 1977

GAZ LTN - :

JANUARY/F IZ BRUARY 1977

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 19

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.