Halpin, Appellant; Rice, Respondents

• Jurisdiction: Ireland
• Judgment Date: 26 February 1901
• Date: 26 February 1901
• Court: Queen's Bench Division (Ireland)

Halpin

Appellant

and

Rice

Respondent (1).

K. B. Div.

CASES

DETERMINED BY

THE QUEEN'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.

1901.

Justices of the Peace — Sureties for good behaviour — Inadmissibility of evidence — Rebutting complaint.

On a complaint at Petty Sessions, requiring a person to find sureties for good behaviour, the same rule obtains as in applications requiring sureties to keep the peace, viz. that evidence is not admissible for the purpose of rebutting the evidence given in support of the complaint.

This rule applies, although the summons alleges as its ground facts amounting to a charge of a criminal offence.

Case Stated by the justices of county Clare. At a Petty Sessions Court, held at Ennis on the 23rd and 24th November, 1900, the appellant was charged on a summons as follows: “That

you the defendant on the 10th day of September, 1900, at Ennis, in the county of Clare, being a member of the County Council of said county, and then present at a meeting of that body in the Courthouse Ennis, which was being held for the transaction of business of the Council and a part of which business on that day was to open tenders and to declare contracts for the repairs and maintenance of roads in said county, certain persons being also present who had tendered for the repairs of said roads, for the purpose of entering into contracts and signing their bonds accordingly, did by your acts, language, and demeanour unlawfully use intimidation to and towards such last mentioned persons, and did cause apprehension and fear in the minds of such persons or some of them by the violence of your conduct on the occasion, and did by such acts, language, and demeanour cause the said persons or some of them to abstain from signing their bonds as contractors for the repair of such roads as they had tendered for to said Council; and did thereby cause such persons, or some of them, injury and loss, and did excite discontent in the minds of Her Majesty's subjects. This is to command you to appear as a defendant at the hearing of the said complaint at the Court-house at Ennis, on Friday, 23rd November, 1900, at 12 o'clock noon, before such Justices as shall be there, and to show cause, if any, why you should not be bound over to keep the peace and be of good behaviour.”

At the hearing of the complaint evidence was given, which satisfied the justices that the appellant on the occasion in question had used intimidation of the character and with the result charged.

It was contended on behalf of the appellant that he was entitled to adduce, and the justices were bound to receive, evidence rebutting or tending to rebut the evidence given in support of the complaint.

It was further contended on the part of the appellant that, whether he acted in the manner set out above (which, however, he did not admit), yet if he did, such conduct did not in itself constitute such misbehaviour on his part as would justify the magistrate in binding him to be of good behaviour, and further that he being a member of the County Council of Clare, was, as such, justified in saying and doing there what he saw fit, in order to secure that the roads of the county should, as he desired, be kept in repair by direct labour and not by contract, and that as such member he was entitled to act as he had done at said meeting.

The justices being of opinion that such evidence was not properly admissible, as the defendant was not entitled to go into evidence at all, refused to admit the same, and being further of opinion that the conduct of the appellant, as appearing from the evidence adduced by the complainant, constituted such misbehaviour as entitled them to bind him to be of good behaviour, and being further of opinion that his position as a county councillor did not justify his conduct at said meeting, which was rather contrary to his duty as such councillor, decided that he should enter into sureties, himself in £50 and two sureties in £25 each, to be of good behaviour towards all Her Majesty's subjects for a period of twelve months, and in default of so doing be imprisoned in Limerick jail for a period of two calendar months.

The present case was stated on the application of the appellant to obtain the judgment of the Court as to whether the justices were correct in point of law in their determination or as to what should be done in the premises.

Moriarty (with him Bushe, K.C.), for the appellant:—

We rely on two points:—1st. The facts set out in the summons charge the appellant with a criminal offence, and the magistrates were therefore bound to dispose of that charge before making an order to enter into sureties: Petty Sessions (Ireland) Act, 1851 (14 & 15 Vict. c. 93), s. 21. No doubt the summons only asks to have the defendant bound over, but, having appeared, he could have been convicted of the offence charged: Kennington v. Daniel (1). The offence, moreover, is one within sect. 7 of the Conspiracy and Protection of Property Act, 1875 (38 & 39 Vict. c. 86); the defendant in such case has a right to object to be tried by a Court of Summary Jurisdiction (sect. 9), and the magistrates are bound to inform him of such right: Reg. v. Cockshott (2). To

hold that the magistrates had power to make the present order would be to defeat the policy of that Act.

2nd. Admitting that in applications for surety of the peace evidence is not admissible on behalf of the defendant, yet in applications for surety for good behaviour the rule is different: Reg. (Feehan) v. The Justices of Queen's Co. (1), per May, C. J.; Reg. (Orr) v. The Justices of Londonderry (2); Reg. (Reynolds) v. The Justices of Cork (3); Dalton's Justice of the Peace, p. 293 (ed. 1715); Humphrey's Justice of the Peace, p. 473n (9th ed.). In Ex parte Seymour v. Davitt (4) such evidence was actually received by the Queen's Bench Division. In England express provision is made by the Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), s. 25, for the admission of evidence on behalf of a defendant against whom surety of the peace or for good behaviour is sought with respect to a private complainant. No provision is made where surety is sought on behalf of the Crown for the peace and good behaviour generally, the reason being, it is submitted, that in the latter case such evidence was admissible under the existing law. Section 20 of the Petty Sessions (Ireland) Act, 1851 (14 & 15 Vict. c. 33), is wide enough to cover the present case.

The Solicitor-General (Wright, K. C.), and Morphy, for the respondent:—

As to the first point:—In Reg. (Reynolds) v. The Justices of Cork (3); Reg. (Feehan) v. The Justices of Queen's Co. (1); Ex parte Seymour v. Davitt (4): a criminal offence was in each case charged.

As to the second point, we should not be sorry if the Court found itself able to decide in favour of the contention of the appellant that in applications for surety for good behaviour evidence is admissible on behalf of the defendant. We submit, however, that as the law stands such evidence is not admissible. There is no distinction in principle between surety for good behaviour and surety of the peace. In cases of surety of the peace it is well

settled that the defendant cannot adduce evidence: Lord Vane'sCase (1); Rex v. Stanhope (2); Reg. v. Dunn (3); Rex v. Doherty (4), Reg. v. Mallinson (5); Lort v. Hutton (6); 5 Burn's Justice of the Peace, p. 749. The true reason of the rule is that binding over to the peace is not in the nature of punishment, but only a precautionary measure: Lort v. Hutton (6); Ex parte Davis (7); Ex parte Harken (8). This reason applies with equal force to surety for good behaviour. Ex parte Tanner (9) is an express decision of the Exchequer Division on the point; that was a case of surety for good behaviour. The dictum of May, C.J., in Reg. (Feehan) v. The Justices of Queen's Co. (10) cannot be supported. [Gibson, J., referred to Nun and Walsh on the office of Justice of the Peace, p. 531, ed. 1841; In re Pollard (11).]

Bushe, K. C., in reply:—

The dictum of May, C. J., was founded on an examination of all the authorities. Ex parte Tanner (9) is distinguishable since there a contempt was committed in face of the Court. In any event since no appeal lay from that decision it is not binding on this Court: In re Heaphy (12). The real reason for excluding evidence on behalf of the defendant in applications for surety of the peace is that suggested by Burns, viz. that a person demanding sureties of the peace swears only to his own apprehension, of which no other person can form an adequate judgment (5 Burn's Justice of the Peace, p. 749). This reasoning has no application to cases of surety for good behaviour.

Cur. adv. vult.

Lord O'Brien, L.C.J.:—

We reserved judgment in this case, as it involved a question of considerable importance as regards the procedure and rights of defendants where sureties for good behaviour are demanded, and inasmuch also as there is to some extent a conflict of judicial opinion in this country with reference to the question which has been debated.

The principal question before us is whether, when sureties for good behaviour are demanded, the defendant, or witnesses on his behalf, can be examined, to testify in his favour. It is conceded that such witnesses are not competent when sureties for the peace are demanded. Does a like rule obtain when the demand is not for sureties of the peace, but sureties for good behaviour? We think that the same rule does prevail and that the decision of the Court of Exchequer, in Dr. Tanner'sCase (1) is right and should be followed. We all, however, think that the law should be amended, so as to make in such cases the defendant and any person desirous to testify in his favour competent witnesses. The rule which excludes witnesses for the defence on a procedure for sureties for the peace and for good behaviour...