People v Murtagh & Malone

• Jurisdiction: Ireland
• Judge: KENNY J
• Judgment Date: 09 April 1965
• Neutral Citation: 1930 WJSC-CCA 869
• Docket Number: C.C 57a.
• Court: Court of Criminal Appeal
• Date: 09 April 1965

People v. Murtagh & Malone

THE PEOPLE

.v.

FRANCIS MURTAGH AND RITA MALONE .

1930 WJSC-CCA 869

C.C 57a.

COURT OF CRIMINAL APPEAL

1 Judgement delivered on 9th April 1965 of the Court by KENNY J:

2 The accused Francis Murtagh and Rita Malone were tried in the Central Criminal Court before Mr. Justice Henchy and a Jury on a charge that they murdered Jene Murphy on the 4th January 1964. On the 29th June 1964 counsel for both accused unsuccessfully applied to the trial Judge for separate trials. The trial, which began on the 18th July 1964, lasted for six days and resulted in the conviction of Murtagh and the acquittal of Malone. At the end of the trial counsel for The People and Counsel for Francis Murtagh addressed the trial Judge on the question whether the Criminal Justice Act 1964made it mandatory on him to impose a sentence penal servitude for life. The Judge sentenced Mr. Murtagh to penal servitude for life but did not express any view of the effect of the Act of 1964. Counsel for then applied for a certificate for leave to appeal: this was refused and an application was then made to this Court for **???query??? leave on the grounds that the trial Jude was wrong in refusing to make an order that there should be separate trials of the accused and that the sentence imposed was excessive.

3 Jane Murphy was murdered on the 4th January **???query?????? circumstances of great brutality when she was in a shop at Fallybough where she was employed. She was an elderly lady and was struck on the head on at least twelve occasions with an iron bar: her sister who was also employed in the shop was also attacked but recovered. There was evidence that both accused were seen leaving the shop at the time of the murder. On the 8th April, 1964 Murtagh went to a police station in England and stated that he had killed someone in Dublin and on the 9th April he stated that Rita Malone, who was with him, took money from the cash tin on the counter of the shop. On the 10th April he signed a statement admitting that he had killed Jean Murphy: this statement did not incriminate Rita Malone. On the 14th April he signed another statement in which he said that Rita Malone was innocent and that she was not in the region of Ballybough at the time when the killing happened. On the 10th April 1964 Rita Malone, who was in Manchester signed a statement in which she described how Murtagh struck Miss Murphy on the head in her presence and then took money out of the cash tin. Murtagh did not give evidence at the trial but made a statement from the dock. Rita Malone gave evidence and described how she had gone to the shop with Murtagh and how he had struck both old ladies on their heads. She said that she took no part in the killing, did not take any of the money and that the two of them were acting in pursuance of any plan.

4 The Judge, who had read all the depositions before the application for separate trials was made to him on the 29th June, refused the application because he did not think that a case had been made out that there should be separate trials. He said also that it seemed to him that "the interests of Justice require that this alleged single joint transaction should not be broken up into two separate trials because in fact separate trials may be very damaging to one or both of the accused." The application for separate trials, was unsuccessfully renewed after one of the policemen form England had given evidence that Murtagh had stated to him that Rita Malone had taken money from the cash in in the shop.

5 The principles to be applied by this Court when considering an appeal against the exercise by a trial Judge of his discretion whether he will or will not make an order for separate trials have been stated by this Court and by the Supreme Court. Before we deal with these principles, we think it right to say that the fact that one of the accused has made a statement which incriminates another of the accused is not by itself a matter which compels the trial Judge to grant separate trials: this is always a matter for the discretion of the trial Judge. When two or more accused are charged in connexion with one transaction, the interests of justice may require that they should be tried together even if a statement made by one of them incriminates another of them. When two or more persons are charged in connexion with a single transaction, it is possible for each of the accused to cast the entire blame for the transaction on the other if they are tried separately and this may result in the acquittal of both.

6 In The Attorney General .v. Joyce and Walsh (1929) I.R. 526 two persons were jointly charged with murder: the trial Judge refused to grant separate trials. The judgement of this Court was delivered by Sullivan P. (as he then was) and in the course of it he said: "Where, as in the present case, persons jointly indicted plead not guilty, the trial Judge may direct that they be separately tried if, in his opinion, separate trials are desirable in the interests of justice. The trial judge has a discretion in the matter which must be exercised judicially. The exercise of such discreation may be reviewed by this Court, and a re-trial directed, if we are satisfied that a refusal to direct separate trial has resulted in a miscarriage of justice." This statement of the law was approved by the Supreme Court in The People v. Henry Carny and Patrick Mulcahy (1955) I.R 324. Mr. Justice O'Byrne, having approved this statement of Sullivan P. said: "There is nothing in the present case to show that the discretion of the trial Judge was exercised on any erroneous basis or that the refusal to direct separate trials has resulted in a miscarriage of Justtice."

7 The meaning of "miscarriage of justice" was discussed by the Court of Criminal Appeal in England in Rex .v. Bywaters (1922) 17 Cr. App. R. 66 in which Hewart L.C.J. when dealing with a refusal by a trial Judge to grant separate trials to two persons jointly charged with murder said: "No doubt, if the result of trying together two persons who might have been tried separately had been a miscarriage of justice this Court would interfere. But what is meant by a miscarriage of justice? It means that a person has been improperly fond guilty. It is idle to suppose that a miscarriage of justice has taken place if a prisoner against whom there is overwhelming evidence suffers from further evidence because another prisoner goes into the witness box."

8 None of the arguments which we have heard shows that the trial judge exercised his discretion on any incorrect principle Indeed, we are of opinion that the decision of the Judge on this application was correct. We have read the transcript and are of opinion that a compelling case against the accused Murtagh existed and that no reasonable jury could have acquitted him.

9 Murtagh has also appealed against the sentence which was imposed on him and as he was convicted of murder, we have to decide whether section 2 of the Criminal justice Act 1964compelled the trial Judge to impose a sentence of penal servitude for life. Two Judges of the High Court have reached differing...