Flanagan v Fahy

• Jurisdiction: Ireland
• Judgment Date: 19 November 1917
• Date: 19 November 1917
• Court: King's Bench Division (Ireland)

Flanagan

and

Fahy.

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1918.

Practice — Evidence — Cross-examination — Fabrication alleged against witness — Previous statement by witness — Admissibility — New trial motion — Order 39, rule 7 — Exclusion of shorthand note of Judge's charge to jury.

In a suit to establish a will, one of the witnesses for the defendants stated that the will was written immediately after the death of the deceased, that he had been invited, on behalf of the plaintiff, to put his name to it as a witness, and that he was given or offered a bribe to secure his silence. The cross-examination of this witness was directed to prove hostility between him and the plaintiff's family, and the suggestion made was that from motives of malice he had fabricated the story told in Court. On re-examination the witness was asked whether he had not told his employer M the same story the day after he had been approached in reference to the signing of the will. M was called, and proved that the impeached witness had told him, a few days after the death of the deceased, substantially the same story.

Held (affirming the King's Bench Division), that this evidence was properly admitted on the ground that where a witness is charged with a design to misrepresent in consequence of his relation to a party or to the cause, it may be shown that he made a statement similar to his present testimony before that relationship existed.

Held, by Court of Appeal, that the Court will not look at the transcript of a shorthand writer's note of a judge's charge unless incorporated in the judge's report or adopted by him.

New Trial Motion in an action to establish the will of Patrick Flanagan, deceased. The defence relied upon was that the will had been forged. At the first trial, before Gibson J., an issue of forgery was left to the jury. There was a disagreement of the jury on that occasion. On the occasion of the second trial no direct issue of forgery was left to the jury, but an issue was left to them as to whether the will was duly executed in accordance with the provisions of the statute.

A witness called Patrick Ryan was examined on behalf of the defendants to prove that the plaintiff Tim Flanagan and his brother Tom Flanagan of Glanquin had asked him to sign his name as a witness to a forged will of Patrick Flanagan, which the plaintiffs were engaged in preparing, and that they had offered to bribe him with a present of sheep for doing so. The witness was cross-examined by Comyn K.C., on behalf of the plaintiffs, as to a number of convictions recorded against him for drunkenness and acts of violence, and as to whether Gibson J., on the first trial, had not stated of the witness to the jury— “I would advise you to regard with intense distrust the evidence of Ryan,” and, “If I had the conduct of the defendant's case I would imagine I would be much better without Ryan”; he was also asked a number of questions as to the circumstances of the alleged interview with the plaintiff and his brother. In the course of cross-examination by Comyn K.C., the following questions were put:—

1036. “Tell me, were you on 1st March, 1906, summoned to the Petty Sessions in Corofin for unlawfully presenting a revolver at the testator, and threatening to blow his brains out? Was that complaint made against you?” “It was made against me, but it was false.”

1037. “Did you settle the case?” “He settled it himself.”

1038. “Were you summoned also on the 22nd March, 1909, for assault on Thomas Flanagan—were you?” “I might have been, he having blackguarded me greatly.”

1039. “Were you convicted?” “I would not say I was convicted.”

1040. “Were you convicted on the evidence and ordered to pay and for costs the sum of Is.?” “I was, when he blackguarded a sister of mine when I met him on the public road.”

1041. “Were you again convicted for having on March 22nd, 1909, assaulted Tim Flanagan?” “It is likely I did; I asked him would not he marry my sister?”

The witness was re-examined by Lynch K.C., as follows:—

1115. Mr. Lynch— “Did you tell your employer, Mr. Mellett, the day after you returned—did you tell him what happened?”

Healy K.C. objecte.

Mr. Lynch— “It will turn on his cross-examination.”

The objection was noted and overruled.

1116. Mr. Lynch— “Were you and your father minding for

Mr. Mellett in the month of January, 1908?” “Yes, we worked for him for years.”

1118. “Did you, after the visit of yours, that you have sworn to, to Glanquin—did you some time shortly after that visit inform Mr. Mellett?” “I did, sir.”

1119. “You swore your visit to Glanquin was on Wednesday night—the night of the day after the funeral?” “Yes.”

1120. “You seem to be sure of that?” “Yes, sir.”

1121. “You were home on the following day—Thursday; will you kindly tell my lord and these gentlemen when you had the conversation with Mellett, your employer?” “On Thursday.”

1122. Pirn J.— “That was the following morning when he came home.”

1123. Mr. Lynch— “Yes.… Did you on the following Thursday morning when you came home tell the same story to Mr. Mellett?”

Healy K.C. objected to the form of the question.

Pirn J.— “Did he inform Mellett what had taken place?”

1124. Mr. Lynch— “Did you on the Thursday when talking to Mr. Mellett tell him what took place at Glanquin the night before?” “I did, sir.”

Mr. Patrick Mellett, who was a magistrate for the county, on being called on behalf of the defendants, corroborated Patrick Ryan's story as to Ryan having told him (Mellett) he had been asked to assist the plaintiff, Tim Flanagan, and Tom Flanagan of Glanquin in the forgery of a will of Patrick Flanagan, deceased.

It was now sought to set aside the verdict entered for the defendants, on the ground that Mellott's evidence and Ryan's evidence on re-examination as set out above had been illegally admitted by the judge at the trial.

The counsel and the arguments were the same as those in the Court of Appeal as set out hereafter.

Cur. adv. vult.

Madden J.:—

My judgment in this case was not written, but delivered from notes, with the assistance of which I am able to furnish to the reporter a short statement of the main grounds of my decision.

I began by noticing that the issue of forgery had been omitted from those presented at the second trial. On inquiring in the office I ascertained that this was accidental, and that the issue of forgery had certainly not been withdrawn.

I hold that in Ireland as in England the genuineness of an alleged signature is triable under the issue of due execution under the statute, but the practice is different. In England, under Order 19, rule 25a, notice is given of the raising of this defence. In Ireland information is given by a plea.

I went through the facts of the case in some detail, noting particularly the statements of the ‘deceased to the effect that he had not settled his affairs, and intended to die intestate, as proved by Father Vaughan and Michael O'Dwyer, and also the facts relating to what was called Bridgie's Will.

As regards the admissibility of Mellett's evidence, I pointed out that the cross-examination of Ryan was directed to prove hostility between him and the Flanagans, giving rise to the inference that Ryan's story was a perjured invention. I thought the evidence of Mellett was admissible to rebut this inference. I have a full note of what I said on this point.

“In R. v. Coll (1), a constable, to whom the prisoner Coll was known, deposed to his presence at the attacks upon District Inspector Martin, for the murder of whom he was tried. In cross-examination, the constable said that he believed that the names of all the persons present at the attack who were known to him were stated in a certain deposition. This deposition did not contain the name of Coll. This, the constable said, was a mistake. The cross-examination was obviously intended to show that the constable's identification of Coll was an afterthought and a perjured invention. To rebut this inference, a still earlier information in which Coll was mentioned as having been present was offered in evidence by the Crown. In this state of facts the conclusion arrived at by the entire bench, as stated by Morris C.J., was that it was ‘open to the Attorney-General, acting on behalf of the prosecution, to have offered evidence to rebut the apparent contradiction which had been relied on for the prisoner in the information of the 29th March.’ Objection was taken to the particular evidence offered by the Crown on the ground that it amounted to oral evidence of a written document, and it was on this point, which has no reference to the present case, and upon another subordinate question, that there was a difference of opinion between the judges.

The general principle on which all the members of the Court were agreed is clearly stated in Taylor on Evidence (par. 1476). Having referred to some cases, including R. v. Parker (1), as authorities for the proposition that evidence is not admissible to show that a witness has on other occasions made statements similar to what he has testified in the case before the Court, the writer adds, “unless, indeed, he has been charged with a design to misrepresent in consequence of his relation to the party or the cause, in which case it will be proper to show that he made a similar statement before that relation existed.” I was of opinion that the cross-examination of Ryan brought the case within the principle thus laid down. I was also of opinion that even if Mellett's evidence had been improperly admitted, the verdict should not be disturbed, referring to Order 39, rule 7, as no substantial wrong or miscarriage had been occasioned by the admission. I referred to what was said by Walker L.J., Tait v. Beggs (2), at p. 535, and also to Powell v. Heffernan (3). I thought that the same verdict would have...