The Gazette 1977

G AZLTN - :

JANUARY/FIZBRUARY 1977

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.

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

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