Re, H. M

• Jurisdiction: Ireland
• Judgment Date: 05 May 1933
• Date: 05 May 1933
• Court: Supreme Court (Irish Free State)

In re M. M. and H. M.

In the MATTER of M. M., a Person alleged to be of Unsound Mind

and

In the MATTER of H. M., a Person alleged to be of Unsound Mind

Supreme Court.

Contempt of Court - Lunacy inquiry - Offer to influence the jury - No actual interference with any member of the jury - Conviction for contempt - Appeal - Jurisdiction of the Chief Justice - Whether an appeal lies to Supreme Court from an order of Chief Justice - "Criminal cause or matter" - Effect of "No rule" on an application to commit - Costs awarded to unsuccessful applicant - Supreme Court of Judicature (Ir.) Act, 1877 (40 & 41 Vict. c. 57), sect. 50 - Courts of Justice Act, 1924 (No. 10 of 1924), sects. 6, 17, 18, 19, sub-sect. 1 - Constitution of the Irish Free State (Saorstat Eireann) Act, 1922 (No. 10 of 1922), Sch. I, Art. 66.

B. was the foreman of a jury empanelled to inquire into the state of mind of H. M. The inquiry resulted in a verdict that H. M. was of sound mind and capable of managing himself and his affairs.

On the following day a jury was empanelled to inquire into the state of mind of M. M., a sister of H. M. When the jury was being sworn B's name was called but he wag challenged and left the Court. That evening (the case of M. M. being still pending) B. went to the residence of H. M. and M. M. It was alleged that B. said to H. M. that he had influenced the jury so that H. M. had not been brought out insane, and that he further stated t,hat he would see that the same verdict would be brought out for H. M.'s sister, because he (B.) had known H. M. for a number of years and would not think it right to go against him; and that he also said to H. M. that he (B.) was sure that he would have been on the jury in the case of H. M.'s sister and that everything would have been all right, but that he would see that she would not be convicted. The solicitor having carriage of the proceedings on being informed of these facts applied to the Chief Justice for an order to commit B. for contempt of Court both in the Matter of M. M. and in the Matter of H. M.

At the hearing of the applications contradictory evidence was given: B., while admitting that he went to the house of H. M. and M. M., denied that he made the statements alleged. The Chief Justice was satisfied that B. did make the statements, and that he made them for the purpose of impressing H. M. and M. M. with his ability to get desired verdicts from juries and then of offering his services to work upon the jurors then trying M. M.'s case so as to induce those jurors, whatever the evidence might be, to bring in a finding that M. M. was of sound mind and capable of managing herself and her affairs. And the Chief Justice was also satisfied that such an offer was made in fact and accepted on the basis of a consideration to pass from H. M. But the Chief Justice stated that there was no evidence of B. having actually approached any juror, or as to whether the disagreement of the jury which did occur in the case of M. M. was brought about by B.'s efforts. But, being of opinion that it wag not necessary to prove actual interference with the jury to sustain the application, the Chief Justice held, in the case of M. M., that B. had been guilty of contempt in attempting to interfere with the administration of justice, and ordered B. to pay a fine of £30 and to enter into recognisances to be of good conduct for 12 months, and, if such recognisances were not entered into before a specified date, B. was to be committed to prison for three months.

And in the Matter of H. M. the Chief Justice made "No rule" on the application, but ordered B. to pay the costs of the solicitor having carriage of the proceedings.

B. appealed to the Supreme Court. It was contended that no appeal lay.

Held, by the Supreme Court (FitzGibbon, Murnaghan and Johnston JJ.) that an appeal did lie.

Held also (FitzGibbon and Murnaghan JJ., Johnston J. dissenting) that, in the Matter of M. M., the mere offering by B. of his services to work upon the jurors then trying M. M.'s case so as to induce them, whatever the evidence might be, to bring in a finding that M. M. was of sound mind and capable of managing herself and her affairs, not followed by any act in attempted fulfilment of that offer, did not amount to an interference, or an attempt to interfere, with the administration of justice by tampering with the jury, and accordingly the conviction of B. could not be sustained and the appeal must be allowed.

Held also by the Supreme Court (FitzGibbon, Murnaghan and Johnston JJ.) that, in the Matter of H. M., since "No rule" on the application to commit B. for contempt of Court amounted to a refusal or dismissal of the application, and was equivalent to an acquittal, the order that B. should pay the costs of the solicitor having carriage of the proceedings was contrary to settled principles and must be discharged.

Application to the Chief Justice for an order of committal for contempt of Court arising during the course of proceedings in two Lunacy Matters, viz.: In the Matter of M. M., a person alleged to be of unsound mind, and in the Matter of H. M., a person alleged to be of unsound mind.

In the first case, that of M. M., a person alleged to be of unsound mind, the application was brought on behalf of Thomas J. Batty, the solicitor having carriage of the report and proceedings under order of the Chief Justice, made on the 27th July, 1932, in this Matter, and the application was that Michael Bermingham, 9 Victoria Street, Dublin, pensioner, might be committed to prison for contempt of Court "in that he, having been summoned on the panel of jurors to try the inquisition directed by commission of the Chief Justice, dated the 21st day of October, 1932, in the Matter of H. M., a person alleged to be of unsound mind, and having been summoned on the panel on jurors to try the inquisition directed by commission of the Chief Justice, dated the 21st day of October, 1932, in this matter [i.e., that of M.M.], and having been sworn and acted as a juror on the inquisition in the matter of H. M., a person alleged to be of unsound mind, which was held on the 22nd and 23rd days of November, 1932, and having been called to act as a juror on the inquisition in this matter [i.e., that of M. M.] held on the 24th and 25th days of November, 1932, and challenged, did, while the said inquisition in this matter was pending and before the jury had considered their verdict, do the things and make the statements following:—

1. On Thursday, the 24th day of November, 1932, after the finding of the jury at the inquisition in the matter of H. M., a person alleged to be of unsound mind, the said Michael Bermingham went to the dwelling-house of the said H. M. and the above named M. M., persons alleged to be of unsound mind, and there said to the said H. M.:—

'I incensed it into the jury that you were not to be brought out insane and I will see that the same verdict will be brought out for this poor sister of yours, because I know you a number of years and I would not think it right to go against you.'

To which the said H. M. replied: 'I was delighted to see you on the jury as I knew I would be all right.'

The said Michael Bermingham then said to the said H. M.: 'I was sure I would have been on the jury of your sister and everything would have been all right, but I will see that your sister will not be convicted.'

To which the said H. M. replied: 'You know I have something for you and I will see you all right.'

2. On Thursday, the 24th day of November, 1932, after the last-mentioned conversation, having been approached by Mrs. Elizabeth Doyle of No. 40 N—— C—— Street, Dublin, in reference thereto, and she having said to him, 'Michael Bermingham, do you call yourself a just man to conversate with Mr. M. in the manner you have done?' he said to the said Elizabeth Doyle: 'Only you are a woman I would take your sacred life. I would get you and tear you up and down the street only you are a woman.'

And that the said Michael Bermingham may be ordered to pay to the applicant his costs of and incident to this application and the order to be made thereon, which application will be grounded on the affidavits of the said Elizabeth Doyle and of Andrew Walsh and the said Thomas J. Batty, filed on the 7th day of December, 1932, the documents therein referred to, the proceedings and orders in this matter and in the matter of H. M., a person alleged to be of unsound mind, the nature of the case, and the reasons to be offered."

In the second case, that of H. M., a person alleged to be of unsound mind, the application was brought on behalf of the same solicitor, who had carriage of the report and proceedings under order of the Chief Justice, made on the 27th day of July, 1932, in this Matter, and was that the said Michael Bermingham might be committed to prison for contempt of Court "in that he having been summoned on the panel of jurors to try the inquisition directed by commission of the Chief Justice, dated the 21st day of October, 1932, in this Matter, and having been sworn and acted as a juror on the said inquisition which was held on the 22nd and 23rd days of November, 1932, did and said the matters and statements following:—

"1. On Thursday, the 24th day of November, 1932, after the finding of the jury of the said inquisition, he went to the dwelling house of the above-named H. M., a person alleged to be of unsound mind, and there had a conversation with him and made statements to him as follows."The conversation set out above in the application in the Matter of M. M. then followed, and the rest of the application was identical with that in the Matter of M. M. given above.

The facts are fully stated in the judgment of the Chief Justice.

In the Matter of H. M., the material portion of the order made by the Chief Justice was as follows:—"His Lordship having made an order committing the said Michael Bermingham for contempt in the Matter...