murder and involuntary manslaughter - Law Reform Commission

to at the time.” 19 Regarding the mens rea as to the victim’s occupation andactivity in capital murder cases, Henchy J stated that intention, oralternatively recklessness would suffice. He stated that an accused may befound guilty of capital murder of a Garda if it is shown (a) that he murderedthe Garda (ie caused death with the intention of killing or causing seriousinjury) and (b) that he was reckless as to whether his victim was a Garda inthe course of his duty. 202.16 Henchy J stated that the test of recklessness in this context is thatof section 2.02(2)(c) of the American Law Institute’s Model Penal Codewhich provides:“A person acts recklessly with respect to a material element of anoffence when he consciously disregards a substantial andunjustifiable risk that the material element exists or will resultfrom his conduct. The risk must be of such a nature and degreethat, considering the nature and purpose of the actor’s conduct andthe circumstances known to him, its disregard involves culpabilityof high degree.”2.17 He did, however, stress that the recklessness at issue in this caserelated to a concomitant circumstance of an act, ie the deceased’s occupationas a Garda, and not to the consequences of an act (the probable result ofshooting a person at close range). 212.18 Griffin J agreed with Henchy J that recklessness as toconsequences was irrelevant on the facts of this case. He observed that the“natural and probable consequences” of firing a shot at close range is to killor cause serious injury and under section 4(2) of the 1964 Act there is apresumption of intention. Since the Special Criminal Court found as a factthat the shooting of the deceased was intentional, Griffin J was satisfied thatno issue of recklessness was raised. 222.19 In Griffin J’s opinion the specific intent required by section 4 didnot extend to the aggravated ingredients of section 1, subsection 1(b)(i), andknowledge that the deceased was a Garda was, therefore, not an ingredientof the offence of capital murder, otherwise the murder of a plain-clothesGarda could never be capital murder unless it was proved that the accusedknew his occupation. Griffin J stated that there must be advertence on thepart of the accused as to the fact that the deceased was a Garda because19202122The People (DPP) v Murray [1977] IR 360, 402.Ibid at 403.Ibid.Ibid at 415.30