People (DPP) v MURRAY

 
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1975 WJSC-CCA 723

COURT OF CRIMINAL APPEAL

No. 20–21/1976
People (D.P.P.) v. MURRAY
The People (D.P.P.)
v.
Murray
Judgment of Court delivered by O'Higgins C.J. on 29/7/76
1

The Appellants seek leave to appeal against their conviction before the Special Criminal Court on the 9th day of June 1976 on the charge of the capital murder of Garda Michael Reynolds. To enable their appeal to be prosecuted, solicitor and counsel have been assigned to act on their behalf. Having been assigned, counsel prepared two documents entitled Grounds of Appeal, one on behalf of each Appellant. These grounds of appeal are identical except that two additional grounds are contained in the document lodged on behalf of Marie Murray. The Court acceded to the request of counsel to accept these grounds of appeal in place of those lodged by the Appellants. In this Judgment the various grounds in both documents will be considered but not necessarily in order. Grounds 1 and3 are identical and can conveniently be taken together. Under these grounds of appeal it was submitted that the verdict of capital murder against Noel Murray and Marie Murray or, alternatively, against Noel Murray alone, was against the evidence and the weight of the evidence because

2

(1) The evidence did not establish that Garda Reynolds pursued the get-away car acting in the course of his duty and because he suspected that a felony had been committed. It was said that the evidence was consistent with a pursuit of the get-away car by Garda Reynolds in order to remonstrate with the driver for dangerous driving when the car pulled out suddenly in front of Garda Reynolds” car.

3

(2) It was further submitted that Noel Murray could not be guilty of murder because Garda Reynolds was shot by Marie Murray and there was no sufficient evidence of a common design to resist arrest in St. Anne's Park by force of arms. It was said that the evidence in the accuseds” statements at that time showed that Mrs. Murray alone had the guns in her possession and that evidence was consistent only with the view that any intention to use the guns had ceased. In shooting Garda Reynolds, however it occurred, it was argued that Mrs. Murray was not acting within the scope of any common design to resist arrest by force because there was then no such design.

4

Having carefully considered the evidence on these matters there appears to be no basis for these contentions.

5

The evidence of the manner in which the get-away car left the bank and was pursued by Garda Reynolds, the distance and many changes of direction which such pursuit involved, the behaviour of the four occupants of the get-away car in abandoning it in St. Anne's Park and fleeing from Garda Reynolds and the conduct of Garda Reynolds in pursuing them on foot amounted to overwhelming evidence to establish beyond all reasonable doubt that Garda Reynolds suspected the occupants of the car of having committed some serious crime. Accordingly there was ample evidence to justify the inference that Garda Reynolds was acting in the course of his duty in pursuing the get-away car and in subsequently pursuing the occupants when they fled from it in St. Anne's Park.

6

It is not disputed that there was a common design to rob the bank by force of arms and in the absence of any evidence to the contrary it must be assumed that such common design to use arms was not limited to the bank premises but included all steps of the operation involved in getting and keeping the stolen money. When as in this case those committing a crime carry arms and threaten to use them if anyone opposes them, the Court cannot assume that such threats were intended to frighten only and were not intended to be carried out. The scientific evidence showed beyond all reasonable doubt that Garda Reynolds was shot at a range of more than 30 inches and accordingly the shooting must have been deliberate and not accidental in trying to hit him with the gun as alleged in Mrs. Murray's statement .That part of Mrs. Murray's statement which alleged that the shooting was accidental was rejected by the Special Criminal Court and the evidence was coercive that the shooting was not accidental. In fleeing from the car the fugitives, including the accused, took their guns with them. No evidence was given by the Murrays to establish that the possession of the guns by Mrs. Murray was the consequence of any deliberate decision on the part of the criminals and if so for what reason, or whether it was an accidental result of panic. The fact is that Mrs. Murray was carrying in her hand a gun that was not merely loaded but had a round of ammunition in the breach and was cocked and with the safety catch off and therefore ready for instant use. There is nothing in that evidence which is inconsistent with an intention to use the gun to escape from pursuit. Accordingly there was no evidence to displace the inevitable inference from the accuseds” conduct that they intended to use the gun if opposed.

7

Under ground 4 which again is identical in each document it was argued there was a mistrial because the Special Criminal Court tried other counts in addition to the count of capital murder. There is no rule of law which prohibits the trial of other offences with a count of murder. It is not prohibited by the indictment rules in the Criminal Justice (Administration) Act 1924. It was not the practice to do so in cases of trial before a judge and jury because of the undue burden which would be placed on the jury and possibly on the defence. In this case the accused were represented by counsel in the opening stages of the trial and counsel did not object to the trial of the various counts together. It is not suggested that the procedure adopted in fact prejudiced the accused in any way. Accordingly the Court sees no substance in this ground.

8

Under ground 5 which is again common to both documents it was submitted that a mistrial had occurred because, as was alleged, the Special Criminal Court wrongly refused several applications for adjournments made on behalf of the Appellants. This objection must be considered in the light of the following facts. At the commencement of the trial both Appellants were being tried jointly with Roman Stenson who was alleged to have been another member of the gang which carried out the bank robbery. On the sixteenth day of the hearing Mr. Stenson's trial was adjourned because he was unable to follow the proceedings due to acute anxiety. Counsel for the Appellants then applied for an adjournment of their trial on the grounds that Mr. Stenson would be a necessary witness on their behalf upon the issue of the admissibility of statements made by the Murrays while in the custody of the Gardai. The Court...

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