The Gazette 1977

GAZ T I I H

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. 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 Clear language necessary for mens rea in capital murder