People v Murray

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1977
• Date: 01 January 1977
• Docket Number: [S.C. Nos. 137/8 of 1976]

Court of Criminal Appeal

Supreme Court

[S.C. Nos. 137/8 of 1976]

The People v. Murray

The People (at the Suit of The Director of Public Prosecutions)

and

Marie Murray and Noel Murray

Criminal law - Murder - Capital murder - New offence - Proof - Mens rea - Recklessness - Murder of policeman acting in course of his duty - Criminal Justice Act, 1964 (No. 5), ss. 1, 4.

Criminal Appeal.

The applicants, Noel and Marie Murray, were husband and wife. They were charged jointly in the Special Criminal Court on an indictment containing the following eleven counts:—1. Capital murder—2. Murder— 3. Manslaughter—4. Aggravated larceny contrary to s. 23(1)(a) of the Larceny Act, 1916—5. Possession of firearms on the 11th September, 1975, with intent contrary to s. 15(a) of the Firearms Act, 1925—6. Possession of firearms on the 8th October, 1975, with intent contrary to the said s. 15(a)— 7. Control of firearms with intent contrary to the said s. 15(a)—8. Possession of ammunition with intent contrary to the said s. 15(a)—9. Control of ammunition with intent contrary to the said s. 15(a)—10. Possession of explosives contrary to s. 4 of the Explosive Substances Act, 1883—11. Control of explosives contrary to the said section 4. The statement of the particulars of offence at count 1 was as follows:— "Marie Murray, Noel Murray and Ronan Stenson, on the 11th day of September, 1975, in the County of the City of Dublin, murdered Michael Reynolds, he then being a member of An Garda Síochána, acting in the course of his duty."

On counts 1-5 the applicants were charged jointly with another accused. The trial of the applicants began in the Special Criminal Court on the 24th April, 1976, and each of them pleaded not guilty to each count in the indictment. On the 20th May the other accused became ill and an order was made directing that he should be tried separately; the trial of the applicants continued. On the 9th June the court found each applicant guilty on counts 1, 4, 5, 6, 8 and 10. Each applicant was sentenced in respect of the first count to suffer death by execution on the 9th July, 1976. Each applicant was sentenced to twelve years penal servitude on count 4, six years penal servitude on each of counts 5, 6 and 8 and five years penal servitude on count 10. All the terms of penal servitude were directed to run concurrently. The Special Criminal Court refused to grant the applicants leave to appeal and so they applied to the Court of Criminal Appeal for leave to appeal against their convictions.

Sections 1-5 of the Criminal Justice Act, 1964, provide as follows:—

"1.—(1) A person shall not be liable to suffer death for any offence other than—

• (a) treason under the Treason Act, 1939;

• (b) capital murder, namely—

  • (i) murder of a member of the Garda Síochána acting in the course of his duty, or

  • (ii) murder of a prison officer acting in the course of his duty, or

  • (iii) murder done in the course or furtherance of an offence under section 6, 7, 8 or 9 of the Offences Against the State Act, 1939, or in the course or furtherance of the activities of an unlawful organisation within the meaning of section 18 (other than paragraph (f)) of that Act, or

  • (iv) murder, committed within the State for a political motive, of the head of a foreign State or of a member of the government of, or a diplomatic officer of, a foreign State;

(c) an offence by a person subject to military law under section 124, 125, 127 or 128 of the Defence Act, 1954 . . .

2.—A person who but for this Act would be liable to suffer death shall be liable to penal servitude for life.

3.—(1) Where a person is accused of murder which is alleged to be capital murder, he shall be charged with capital murder in the indictment.

(2) A person indicted for capital murder may, if the evidence does not warrant a conviction for capital murder but warrants a conviction for murder, be found not guilty of capital murder but guilty of murder and, if the evidence does not warrant a conviction for murder but warrants a conviction for manslaughter, be found not guilty of capital murder but guilty of manslaughter.

(3) Capital murder shall be treated as a distinct offence from murder for the purposes of an appeal against conviction.

(4) On appeal against a conviction for capital murder the court may substitute a verdict of guilty of murder or guilty of manslaughter for the verdict of guilty of capital murder.

(5) Subject to the foregoing subsections, capital murder shall not be treated as a distinct offence from murder for any purpose.

4.—(1) Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury to, some person, whether the person actually killed or not.

(2) The accused person shall be presumed to have intended the natural and probable consequences of his conduct; but this presumption may be rebutted.

5.—Sections 1, 2 and 3 of the Offences Against the Person Act, 1861 (which relate to conviction and sentence for murder) are hereby amended by the substitution, for 'murder,' of 'capital murder.'"

Pursuant to certificates issued by the Court of Criminal Appeal under s. 29 of the Courts of Justice Act, 1924, each applicant appealed to the Supreme Court from the judgment and the order of the Court of Criminal Appeal. The appeals were heard by the Supreme Court on the 1st-3rd November, 1976, and reserved judgments were delivered by that court on the 9th December, 1976.

Until the year 1964, s. 1 of the Offences Against the State Act, 1861, provided that a person "convicted of murder" should suffer death; but by s. 5 of the Criminal Justice Act, 1964, the term "capital murder" was substituted for "murder"in s. 1 of the Act of 1861. Section 1 of the Act of 1964 provides that a person shall not be liable to suffer death for any offence other than (inter alia) "capital murder, namely—(i) murder of a member of the Garda Síochána acting in the course of his duty . . ." Section 4 of the Act of 1964 states that where a person kills another unlawfully the killing shall not be murder unless the accused "intended to kill, or cause serious injury to, some person . . ." and provides that the accused shall be presumed to have intended the natural and probable consequences of his conduct, but that such presumption may be rebutted.

The accused, who were husband and wife, escaped in a motor car after an armed bank robbery in which each of them had taken an active part. The driver of a private car, who was passing the bank at the time of the escape, pursued the robbers' car in his car until eventually the robbers' car stopped and the accused ran away from it. The pursuer stopped his car and ran after and overtook the husband. When the pursuer was about to seize the husband (who was then unarmed) the wife shot and killed the pursuer. The pursuer was a policeman and a member of the Garda Síochána who was not in uniform and who was not on duty at the start of the chase. The accused were charged jointly in the Special Criminal Court on an indictment containing 11 counts, of which the first charged them with the commission of capital murder. They were convicted on the first count and sentenced to death by execution; they were also convicted on five other counts and sentenced to terms of penal servitude. The accused applied to the Court of Criminal Appeal for leave to appeal against their convictions.

Held by the Court of Criminal Appeal (O'Higgins C.J., Doyle and McMahon JJ.), in dismissing the applications, 1, that the offence of capital murder is not a new offence and that an accused may be convicted of that offence where the prosecution has proved (a) the ingredients required to constitute mens rea in regard to murder and (b) the fact that the person murdered was a member of the Garda Síochána acting in the course of his duty.

2. That the evidence at the trial justified the inference that the deceased had been acting in the course of his duty in pursuing the robbers, and that the shooting was part of a common design.

3. That the inclusion of the other counts in the indictment and the trial and convictions of the accused on those counts did not constitute a mistrial.

4. That the refusal of the court of trial to adjourn the trial of the accused, while adjourning the trial of one of their co-defendants because of his illness, did not constitute a mistrial.

5. That the convictions of the accused were not invalidated by the fact that a member of the court of trial had adjudicated at an earlier criminal trial involving both accused.

6. That there is no presumption of marital coercion at the trial of a wife on a charge of murder.

7. That the decision of the Court involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court.

On appeal by the accused it was

Held by the Supreme Court (Walsh, Henchy, Griffin, Kenny and Parke JJ.), in allowing the appeals, 1, that, notwithstanding the provisions of s. 3 of the Act of 1964, the offence of capital murder is a new statutory offence which requires proof of mens rea in relation to each of its constituent elements.

R. v. McLeod 111 Can. C.C. 106, R. v. Galvin (No. 2) [1961] V.R. 740 and R. v. Reynhoudt 107 C.L.R. 381 considered.

2. That the requisite mens rea to support a conviction for capital murder may be established by proof of the specific intention mentioned in s. 4 of the Act of 1964 as applied to a victim known by the accused at the time of the killing to be a policeman acting in the course of his duty.

3. (Walsh J. dissenting) That such requisite mens rea in respect of the additional elements of capital murder may be established by proof that the accused adverted to the possibility that his victim was such a policeman but nevertheless killed his victim in reckless disregard of that possibility.

4. (Per Walsh, Henchy, Kenny and...