Mens Rea - Recklessness

Question 1

DPP v Murray [1976] (SC) - Henchy J

Answer 1

Presumption of Mens Rea:
- Cases that do and don’t have an additional mens rea requirement for assaulting a police officer acting in the course of his duty under 1861 Act
- No mention of knowledge in the Statute – Incorrect method of interpreting a penal statute
- Correct method = Lord Reid in Sweet v Parsley and application to current case (no logical or ethical distinction)
Mens Rea Requirement for Capital Murder:
- Intention not knowledge – B v Galyin (SC of Victoria); The Queen v Reynoudt including Sholl J recklessness plain clothes police officers (HC Australia), Regina v McLeod
- Plain clothes gardaí issue
- R v Venne – 1861 MR requirement for assault – Knew or reckless – Same here
- Recklessness definition from s202(2)c of the Modern Penal Code
- Professor Glanville Williams - Not certain of the existence of a fact may think probable or possible or not thought about it, latter case where not aware of criminal law so and so does not realise the relevance of the fact to his legal responsibility.”
- Not just simple ignorance; need mistaken knowledge

Question 2

DPP v Murray [1976] (SC) - Griffin J

Answer 2

• Submissions from prosecution and defence about MR requirement 1861 Act or similar; P = R v Forbes, R v Marwell, R v Galvin (No.1); D = R v Galvin (No.2) Queen v Reynoudt
• Glanville Williams – Forbes authority – “Unsound”; Also Reynoudt and McLeod
• Plain clothes, believe not Gardaí necessary; Two people – One Garda, one not but believe both private citizens = Different penalties – Same moral responsibility – “no basis in justice, reason or expediency for imposing increased punishment”
• Endorses Glanville Williams recklessness = “Circumstances…actor does not positively know to be present in his own case, but which he consciously takes the risk of being present..”
• Intention of the Oireachtas – Deterrent to those “minded” to kill a Garda; plain clothed more vulnerable
• Rejects intent only – Plain clothed Garda never capital murder unless person knew was a Garda –
• Current case – “Natural and probable consequences” – Murder MR requirement – Advertence necessary – Endorses Kitto J in Reynhoudt’s case
• Subjective mens rea – MM must have known possibility of him being a Garda existed – Heard later than evening on the Radio that a guard had been shot

Question 3

DPP v Murray [1976] (SC) - Walsh J

Answer 3

• Section 4 of 1964 Act repealed resisting or preventing arrest killing murder even if no intent to kill or cause serious injury – Require knowledge
• Objective recklessness = Constructive knowledge – “No place in our legal system”
• Endorses presumption of mens rea – Civic Guard example – Foresight and willed that outcome; Facts unknown to the accused cannot be foreseen so conduct can’t be considered on the basis of unknown facts
• Recklessness – Not just foresight of possible consequences but disregard of possible consequences
• Endorses Glanville Williams referring to the modern penal code – Culpability requirements apply to all material elements of the offence unless contrary plainly stated
• Marie Murray required knowledge to be convicted of capital murder but did not have such knowledge