DPP v Pringle

• Jurisdiction: Ireland
• Judge: O'HIGGINS C.J.
• Judgment Date: 22 May 1981
• Neutral Citation: 1982 WJSC-CCA 543
• Docket Number: Nos. 93, 94 & 95/1980
• Court: Court of Criminal Appeal
• Date: 22 May 1981

D.P.P. v. PRINGLE McCANN & O'SHEA

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

PRINGLE, McCANN and O'SHEA

1982 WJSC-CCA 543

Nos. 93, 94 & 95/1980

COURT OF CRIMINAL APPEAL

1 JUDGMENT OF THE COURT delivered the 22nd day of May 1981 by O'HIGGINS C.J.

2 These appeals relate to the conviction of each of the three Applicants before the Special Criminal Court on charges of capital murder and bank robbery alleged to have been committed on the 7th July 1980. Each appeal has been heard and considered separately by this Court. This Judgment will deal with such of the facts and the law which are common to all appeals and will then give the separate determination of the Court in relation to each appeal.

3 The charges arise out of a bank robbery which occurred at Ballaghaderreen on the 7th July 1980 and the subsequent killing on the same day of a member of the Garda Síochána, Garda Henry Byrne, while he was acting in the course of his duty. At the trial before the Special Criminal Court the following facts emerged in evidence.

4 Short ly before 3 o'clock p.m. on the 7th July 1980 a bank raid took place at the premises of the Bank of Ireland in Main Street, Ballaghaderreen. It was carried out by three men who arrived outside the bank premises in a blue Cortina car. Each of these men was armed and each was hooded or masked with what was described as a balaclava helmet. Two of the men went quickly into the bank where they held at gunpoint the customers and bank officials therein. All of these were ordered to lie on the ground and when one customer delayed in doing so a shot was discharged into the ceiling. Having given an instruction to his companion to kill anyone who moved, one of the raiders took the Acting Manager at gunpoint to the strongroom and there took possession of a large sum in bank notes. Meanwhile on the outside of the bank the other gunman stationed himself on guard. He was armed with a shotgun with which he threatened passers by. A garda patrol car coming from the nearby garda barracks arrived. It was manned by two gardaí, one of whom was in uniform. It was immediately stopped by this raider who at gunpoint ordered the two gardaí to leave the car and to lie down on the roadside. In order to compel obedience to his command this raider held the gun barrel close to the head of Garda Walsh who was the member in uniform. When the robbery was completed the three gunmen got into the blue Cortina car and having made a U-turn, drove down Main Street into Market Square and out of Ballaghaderreen on the Frenchpark Road. On their way through the town guns were seen pointing through the windows of the car in a manner clearly threatening anyone who obstructed or barred their way. Short ly afterwards and a few miles outside Ballaghaderreen a blue Contina car was seen driving along a road which led from the Frenchpark Road to the town dump. Two masked men were seen in the front of this car. At the time there was also parked on this road a white Cortina car. The blue Cortina car was driven in the direction of the white car. Following this the blue car was set on fire and the white Cortina was driven off. At the same time, following an alert as to the occurrence of the bank raid, a garda patrol car from Castlerea was proceeding in the direction of Ballaghaderreen. It was manned by three garda officers in uniform and by the late Detective-Garda Morley, who was armed, and who was in civilian attire. As this garda car was turning at a cross known as Aughaderry or Shannon's Cross, the white Cortina car coming from the direction of the dump road collided with it. This car was manned by three masked men. Following the collision the white Cortina car reversed a short distance and the occupants emerged. One of them fired at the garda car with a shotgun, blasting a hole in the centre and shattering the windscreen. The two garda officers in front were in uniform and just ducked in time to avoid injury. There was also a fusillade of pistol shots at and into the garda car. One of these shots killed Garda Hugh Byrne. The gunmen escaped on foot - two in one direction and one in the other. In their escape they abandoned the car but continued shooting at the gardaí. As a result of these shots, Detective-Garda Morley was killed. After the shooting in the white Cortina car was found the money that had earlier been stolen in the bank raid.

5 The Special Criminal Court concluded that the three masked men involved in the shooting at Aughaderry Cross had had also participated in or been involved in the robbery at the bank. In the opinion of this Court this conclusion was fully justified by the evidence. Indeed it seems to this Court that a conclusion that it was the same three men who had carried out both crimes would equally have been justified.

6 Each of the three Appellants have been convicted by the Special Criminal Court both of the capital murder of Garda Hugh Byrne, arising from the shooting at Aughaderry and, also of the earlier robbery at the bank. The question which arises in these appeals is whether in relation to each of these Appellants these convictions were justified.

7 As to the offence of capital murder it was pointed out by the Supreme Court in the case of The People (at the Suit of the D.P.P.) v. Murray 1977 I.R. 360 that the effect of the Criminal Justice Act 1964was to create a new statutory offence which requires proof in relation to each of its constituent elements of mens rea. These constituent elements of mens rea are

8 (1) an intention to kill or cause serious injury and

9 (2) where the victim was a member of the Garda Síochána, knowledge on the part of the person accused that he was such and was acting in the course of his duty or advertence to such a possibility and reckless disregard thereof.

10 In this case in relation to the shooting of the late Garda Hugh Byrne the Special Criminal Court in its Judgment stated and found as follows:

"Having regard to the circumstances of this case it is clear that whoever fired the fatal shot intended to kill or cause serious injury to a member of the Garda Síochána acting in the course of his duty, the relevant circumstances being that three uniformed members of the Gardaí were, together with the late Detective-Garda Morley, in a clearly marked and clearly identifiable garda patrol car."

11 This Court has considered carefully all the evidence adduced at the trial and has come to the conclusion that this finding and view of the Special Criminal Court is fully supported by the evidence and cannot be called in question. This Court is, therefore, satisfied on the evidence that the shooting of the late Garda Hugh Byrne constituted the offence of capital murder within the meaning of the Criminal Justice Act 1964.

12 At the trial no evidence was adduced to show which of the masked men had in fact fired the fatal shot which killed Garda Byrne, nor were any of these men identified. The case for the Prosecution rested on evidence of a killing which had resulted from a concerted attack on the garda patrol car by this group of three masked men, at least two of whom had fired at and into the patrol car. The Prosecution contended that this killing was part of a common design to kill or to cause serious injury to any person, including a member of the Garda Síochána, should it prove necessary in order to execute successfully the planned robbery and to effect an escape. The Prosecution, while accepting that it had the onus to prove beyond reasonable doubt that it was part of the bank raiders" common design to kill or cause serious injury to a member of the Garda Siochána acting in pursuance of his duty should it so prove necessary, contended that the existence of such design could and should be inferred from the evidence and the facts proved. The Special Criminal Court accepted this contention on behalf of the Prosecution and in the light of this acceptance, approached the question of the guilt or innocence of each Appellant. It has been submitted by Counsel on behalf of Patrick McCann in the course of his appeal that in this respect the Special Criminal Court was in error. Counsel submitted that the effect of the abolition of the doctrine of constructive malice effected by Section 4 of the Criminal Justice Act 1964meant, on the facts of this case, that none of the proven participants in the shooting affray could be found guilty of murder. He submitted that following the abolition of this doctrine it was essential to identify the killer and to show that he had the necessary mens rea. He further submitted that only such proven killer could in fact be convicted. This submission was not supported by Counsel for the other Applicants. This Court does not accept this submission and thinks it plainly wrong. The imputation of criminal responsibility from the acts of another committed in pursuance of a common design or enterprise is recognised as continuing by all the Judges of the Supreme Court in D.P.P. v. Murray. The verdict upheld against the male accused in that case was supported by all the Judges on the basis of responsibility for the action of the other accused. Such an imputation is not the application of the doctrine of constructive malice. It is the recognition of the personal malice and intent of the person in common design with his companion or companions that the intended act be carried out by one or the other. Counsel on behalf of Colm O'shea, while accepting the continuance of the doctrine of common design, submitted that for it to sustain the conviction of a person who did not do or was not proved to have done the act complained of, it must be shown that the act was within the scope of the plan or the common design and that the person accused had not withdrawn therefrom. The Court thinks that this submission is correct but has no reason to conclude from anything contained in the Judgment of...