The King v Joseph Murphy

• Jurisdiction: Ireland
• Judgment Date: 31 January 1921
• Date: 31 January 1921
• Court: King's Bench Division (Ireland)

Rex v. Murphy.

THE KING

and

JOSEPH MURPHY (1)

K. B. Div.

Courts-martial held under the Army Act - Constitution and powers of - Jurisdiction - Review of proceeding of, by King's Bench Division - Erroneous refusal of Court-martial to admit evidence - Defence of the Realm Consolidation Act, 1914 (5 Geo. 5, c. 8) - Army Act, 1881 (44 & 45 Vict. c. 58) - Rules of Procedure thereunder - Rule 124 L - Restoration of Order in Ireland Act, 1920 (10 & 11 Geo. 5, c. 31) -Regulations, 13th August, 1920, 67-84 - Martial Law - Murder - Manslaughter - Trial - Civilian deemed soldier - Cross-examination of witness as to previous statement (28 & 29 Vict. c. 18), s. 5.

The authorities referring to the jurisdiction of magistrates apply to general Courts-martial established under the Army Act.

Statutory Courts-martial, like other inferior Courts, are subject to the controlling authority of the King's Bench Division by prohibition, certiorari, or habeas corpus, if they act without or in excess of jurisdiction. But a decision of a Court-martial made intra vires, though erroneous in point of law, does not entitle an accused to such relief.

A Court-martial does not exceed or abuse its jurisdiction merely because it incidentally misconstrues a statute, admits illegal evidence, or rejects legal evidence.

Constitution and powers of statutory Courts-martial discussed.

Motion on Notice.

Application on behalf of the accused for an order that a writ of habeas corpus should issue to Joseph King, Governor of Cork Male Prison, directing him to bring up the body of the said Joseph Murphy to the Court there to abide and await the judgment of the Court, and for a writ of certiorari directed to the Right Honourable Sir Neville Macready, General Officer Commanding-in-Chief in Ireland and Confirming Authority of the sentences of General Courts-martial in Ireland, and to Major-General Strickland, Competent Military Authority for the City and County of Cork, to bring up the record, findings and adjudications, confirmation, and all other records or documents appertaining thereto of a General Court-martial held on the said Joseph Murphy at Victoria Barracks, Cork, on the 15th December, 1920, in order that they might be quashed upon the grounds that there had been an abuse of the jurisdiction of the Court and a disregard

of the essentials of justice, and the conditions regulating the functions and duty of the Court, inasmuch as counsel for the accused was not allowed to contradict essential witnesses for the prosecution on material and relevant portions of their evidence, by proving that the witnesses in question had made statements on oath at a military inquiry held in lieu of an inquest at variance with their evidence at the trial; and on the grounds that the tribunal had before it a summary of evidence which dealt with and sought to establish charges other than those being investigated by the Court, and on the ground that there was error on the face of the record; and on the ground that the record of proceedings and notes of the evidence and trial established that the trial was not conducted according to the rules of law which should regulate such proceedings, and that a miscarriage of justice had taken place at the trial.

The accused, Joseph Murphy, was tried by a General Court-martial, held at Cork on the 15th December, 1920, and sentenced to death for having been one of an ambush party that fired at a waggon-load of military in the City of Cork on the 8th October, 1920, with the result that a private soldier named Squibbs was killed.

The charge sheet set out the offence as follows:—

Charge Sheet.

The accused Joseph Murphy, of 5 Thomas Street, Cork, Ireland, civilian, is charged with committing a crime within the meaning of Regulation No. 67 of Restoration of Order in Ireland Regulations, that is to say, murder, in that he, on 8th October, 1920, in the City of Cork, Ireland, feloniously, wilfully, and of his malice aforethought, did kill and murder No. 5487222 Private J. Squibbs, 2nd battalion Hampshire Regiment.

1st Charge. Murder.

Committing a crime within the meaning of Regulation No. 67 of the Restoration of Order in Ireland Regulations, that is to say, manslaughter, in that he, on 8th October, 1920, in the City of Cork, Ireland, feloniously did kill and slay No. 5487222 Private J. Squibbs, 2nd battalion Hampshire Regiment.

2nd Charge (alternative). Manslaughter.

Signature

Unit with which the accused is in custody. Commanding 2nd battalion Hampshire Regiment. Place, Cork. Date

To be tried by General Court-martial.

Place, Cork.

Date

Major-General,

Commanding 6th Division.

The President of the Court had also before him at the trial a second charge sheet and summary of evidence in which Joseph Murphy was charged with having a revolver and ammunition in possession not under effective military control, contrary to certain orders issued by the Competent Military Authority.

Before instituting the present motion, counsel for the accused (M'Elligott K.C.) wrote as follows to the Right Hon. the Attorney-General for Ireland:—

Sir,—I desire to bring before you in your official capacity as His Majesty's responsible legal adviser in Ireland certain facts connected with the trial of Joseph Murphy by General Court-martial at Cork on the 15th December last on a charge of murder on the 8th October, 1920. Briefly, they are that a Military Court of Inquiry was held under the provisions of the Restoration of Order Act, sect. 1, sub-s. 3 f, in lieu of a coroner's inquest. This inquiry was held on either the 6th or 7th October. Two soldiers who gave evidence at the Court of Inquiry, and whose evidence was recorded, were examined for the prosecution at the trial. I appeared as counsel for the accused at the trial, and had in my possession what appeared to be a very full though not verbatim report of the inquiry proceedings. On reading it, it was quite apparent to me that, if the report was at all accurate, the evidence of those two witnesses as given now differed in many material particulars from that they gave before the Court of Inquiry. I called upon the prosecution to produce the original sworn statements of these witnesses before the Court of Inquiry, that I might cross-examine them out of them, and thus test their accuracy and credit. The Judge Advocate ruled that I was not entitled to their production, or to cross-examine out of them, giving as his reason for so ruling, Rule of Procedure 124 L, which, so far as is material, is as follows:—"The proceedings of a Court of Inquiry shall not be admissible in evidence against any officer or soldier, nor shall any evidence respecting the proceedings of the Court be given against any officer or soldier." It seems almost an impertinence to point out to you as a lawyer the absurdity of this ruling. I was not seeking to use the statements against my client. I wanted to use them in his favour. These statements were in the nature of depositions taken by the coroner, and the statute and order are express on this point. Would anyone outside a lunatic asylum rule that I could not cross-examine out of the coroner's depositions? My right to do so is established beyond doubt by the Irish Common Law Procedure Act, 1856, sects. 26 and 27, and these are merely declaratory of the Common Law. The result of this ruling is that evidence of a vital character in favour of my client was excluded; he was found guilty of murder, sentenced to death, and the sentence was confirmed. The evidence was recorded by an official shorthand writer.

On the 18th December I wrote fully on this matter to the G.O. Commanding-in-Chief. I received no acknowledgment of my letter. I wrote him again to-day, bringing all the facts to his notice, and I told him that I was quite willing to abide by your decision.

I most earnestly appeal to you, sir, in the very best interests of the community, and of the vindication of the law, to intervene to prevent what will be for many years regarded as an outrage on the administration of the law in this country.

This communication should have been made you by my solicitors, but the urgency of the matter is my excuse for appealing to you directly.

I have the honour to be,

P.S.—I do not deal with the evidence of identification, which to my mind was most unsatisfactory and unconvincing.

E. J. M'E.

Similar letters were sent by counsel to the General Officer Commanding-in-Chief, and to the Judge Advocate-General.

The following facts and matters were set forth in the affidavits filed on the hearing of the motion:—James J. Mooney, of No. 48 South Mall, Cork, Solicitor for the accused, deposed as follows:—

1. I was retained as Solicitor for Joseph Murphy, of 5 Thomas Street, in the City of Cork, who was tried by General Court-martial at Victoria Barracks, Cork, on the 15th day of December, 1920, on alternative charges of (a) the murder and (b) the manslaughter of Private Squibbs, at Barrack Street, Cork, on the 8th day of October, 1920. I beg to refer to the charge sheets and summary of evidence served on the accused prior to his trial, on which, marked with the letter "A," I have endorsed my name before swearing this affidavit. The said General Court-martial had been convened before the City or County of Cork had been proclaimed as an area in which martial law was in force.

2. On the 8th October, 1920, a Military Court of Inquiry under the provisions of the Restoration of Order in Ireland Act, 1920, sect. 1, sub-s. 3f, was held to inquire into the circumstances of the death of the said Private Squibbs, in lieu of a coroner's inquest. In the ordinary course of proceedings the evidence of the witnesses sworn and examined at the said inquiry was reduced to writing, and the depositions of the said witnesses were signed by them.

3. Lance-Corporal—and Private—, who both had made depositions before the said inquiry, were examined as witnesses for the prosecution at...