The Queen v Daniel M'Cartie, and Several Others. The Queen v Denis O'Sullivan, and Several Others

• Jurisdiction: Ireland
• Judgment Date: 04 May 1859
• Date: 04 May 1859
• Court: Queen's Bench Division (Ireland)

Queen's Bench

THE QUEEN

and

DANIEL M'CARTIE, and several others.

THE QUEEN

and

DENIS O'SULLIVAN, and several others.

Regina v. ScaifeUNK 9 Dow. P. C. 553; S. C., 5 Jur. 700.

Rex v. Scully 1 Cr. & Dix, C. C., 168.

Barronet's caseENRUNK 1 El. & Bl. 1; S. C., 17 Jur. 184.

Regina v. Woods 9 Ir. Law Rep. 93.

Regina v. GallagherIRIR 7 Ir. Com. Law Rep. 19; S. C., 8 Ir. Com. Law Rep. 93.

Rex v. MorganENR1 Bulst. 84.

Rex v. PoynesENR 3 Bulst. 113.

Rex v. JacksonUNK 25 How. St. Tr. 783, 794.

Regina v. ChapmanENR 8 C. & P. 558.

Regina v. OwenENR 9 C. & P. 83.

Regina v. GuttridgeENR 9 C. & P. 228, 471.

Regina v. BowenENR 9 C. & P. 509.

Barronet's case Supra.

Re Robinson 23 Law Jour., Q. B., 286.

Regina v. Andrews 2 D. & Low. 11.

Regoma v. Maginniss 5 Cox, C. C., 511.

Witham v. DuttonENR Comb. 111.

Bambridge's caseUNK 17 How. St. Tr. 398.

Barthelemey's caseENR 1 Dears. C. C. 60.

Farington's caseENR T. Jones, 222.

Harvey of Comb's caseENR 10 Mod. 334.

Morgan's caseENR 1 Bulst, 84.

The Queen v. BarronetENR 1 El. & Bl. 1.

Platt's caseENR 1 Leach, C. C., 157, 168.

Rex v. YatesUNK 1 Show. 193.

Aylesbury's caseENR 1 Salk. 103.

Barney's caseENR 5 Mod. 323.

Rex v. Jackson 2 Hawk., P. C., c. 15, s. 79.

Rex v. WyndhamENRUNK 1 Str. 2; S. C., 3 Vin. Abr. 515.

Crosby's caseENR 12 Mod. 66.

Kirk's caseENR 12 Mod. 304.

Rex v. DelamereENR Comb. 6.

Habeas CorpusENR Lofft. 280.

Rex v. Scully 1 Cr. & D., C. C., 168.

Rex v. JacksonUNK 25 How. St. Tr. 783, 802.

Rex v. WyndhamUNK 3 Vin. Abr. 533.

Rex v. Fixtzgerald 1 Wils. 254.

Rex v. SeaifeUNKUNK 9 Dowl., P. C., 953; S. C., 5 Jur. 700.

The Queens v. BarronetENR 1 El. & Bl. 1.

Regina v. Woods 9 Ir. Law Rep. 71.

Regina v. GallagherIR 7 Ir. Com. Law Rep. 19.

Regina v. AndrewsUNKUNK 8 Jur. 779; S. C., 2 Dow. & L. 10; 13 L. J., M. C., 113; 1 New Sea. Cas. 199.

Gray v. The Queen 6 Ir. Law Rep. 482.

The King v. JacksonUNK 25 How. St. Tr. 783.

The King v. Scully 1 Cr. & D., C. C., 168.

The Queen v. Connor Not reported.

The King v. CroweENR 4 Car. & P. 251.

The Queen v. OwenENR 9 Car. & P. 83.

The Queen v. GutteridgeENR 9 Car. & P. 228.

The Queen v. BowenENR 9 Car. & P. 509.

The King v. Morgan 1 Buls. 84.

The Queen v. SavageENR 1 Car. & K. 75.

The Queen v. M'Gowan Not reported.

The King v. MorganENR 1 Bulst. 84.

Barthelemy's caseENR 1 El. & Bl. 9.

The King v. JacksonUNK 25 How. St. Tr. 794.

Barronet's caseENR 1 El. & Bl. 1.

The Queen v. Woods 9 Ir. Law Rep. 71.

The Queen v. GallagherIRIR 7 Ir. Com. Law Rep. 19; S. C., 8 Ir. Com. Law Rep. 93.

The Queen v. ChapmanENR 8 Car. & P. 558.

The Queen v. BowenENR 9 Car. & P. 509.

The Queen v. OwenENR 9 Car. & P. 83.

The Queen v. GutteridgeENR 9 Car. & P. 228.

Barthelemy's caseENR 1 El. & Bl. 1, 8.

The Queen v. Magenniss 5 Cox, C. C., 511.

King v. Scully 1 Cr. & Dix, C. C., 168.

The Queen v. ScaifeUNK 9 Dow., P. C., 553; S. C., 5 Jur. 700.

The Queen v. Robinson 23 Law Jour., Q. B., 286.

The King v. Jackson 25 How St. Tr. 783, 802.

Bulst.ENR Morgan's case (1 Bulst. 84).

Rex v. JacksonUNK 25 How. St. Tr. 783.

Rex v. Scully 1 Cr. & Dix., C. C. 168.

Rex v. Gage 3 Vin. Ab. 518.

Morgan's caseENR 1 Bulst. 84.

Rex v. CrosbyENR 12 Mod. 66.

Rex v. Scully 1 Cr. & D., C. C., 168.

Rex v. Jackson 25 How. St. Trials, 783.

Regina v. ScaifeUNKUNK 9 Dowl., P. C., 553; S. C., 5 Jur. 700.

Rex v. Marks East, 157.

Regina v. WyndhamENRUNK 1 Str. 3; S. C., 3 Vin. Abr. 515, 533.

Regina v. OwenENR 9 Car. & P. 83, 86.

188 COMMON LAW REPORTS. E. T. 1859. Queen's Bench April 19, 20. May 4. Prisoners ar- BAIL monoNs.-The prisoners in the first case had been committed rested in De cember were to the gaol for the county of Cork, and, in the second case, to the committed to gaol in the gaol for the county of Kerry, charged with treason-felony, under the January fol lowing, on a charge of treason-felony, under the 11 & 12 Vic., c. 12. At the Spring .Assizes, in the following March, indictments for treason-felony having been preferred and found against the prisoners, they were arraigned, pleaded not guilty, and were ready to proceed with their trial; whereupon the Attorney-General, on the part of the Crown, applied to the Judge of Assize to postpone the trial to the next Assizes. This application, which was not grounded on affidavit disclosing any cause for the postÂponement, was granted, without discussion, by the Judge, who ordered that the prisoners should in the meantime be kept in custody. Upon motion, in the next Term, to admit the prisoners to bail, Held Per LEFROY, C. J., and HAYES, J., that the Court, in the exercise of its discreÂtion, ought not to grant the motion. That a prosecutor, in cases of felony, has, by the Habeas Corpus Act, one Term or Session, after the commitment of the prisoner and his prayer under that-Act, to prefer an indictment against the prisoner, and another Term or Session to bring on the trial : that, if the prisoner is not indicted in the first Term or Session after comÂmittal, he is entitled to be bailed ; and, if he is not indicted in the first, and tried in the second Term or Session after committal, he is entitled to an absolute discharge. Sed, per PERRIN and O'BRIEN, JJ., that the Court, in the exercise of its disÂcretion, ought to grant the motion, the trial of the prisoners having been postponed on the application of the Attorney-General, on the part of the Crown, without any ground being shown for such postponement. The Court of Queen's Bench has full discretionary power to admit to bail, in all cases, no matter how serious the offence charged may be. Where an indictment for felony has been found against a prisoner at one Assizes, there is no prerogative or absolute right in the Crown to postpone the trial ; such postponement is the act of the Court, in the exercise of its discretion. There is no difference between the law in England and Ireland in this respect; and, per LBÂFROY, C. J., and HAYES, J., an application to the"Court for that purpose is not necessarily grounded on affidavit ; sed, per PERRIN and O'BRIEN, JJ., such grounds ought to appear by affidavit, or otherwise upon oath. The question, in bail motions, is the likelihood of the prisoner being forthcoming to take his trial, if admitted to bail ; and the elements to be considered in the deter mination of that question are, first, the nature of the offence charged ; second, the character of the evidence against the prisoner ; and, third, the punishment which, in the event of conviction, may be inflicted on the prisoner. The right of ordering jurors to stand by, in cases of misdemeanour, may be exer- cised by a private prosecutor equally with the Crown : Regina v. M. Gowen (Ct. Crim. Ap., E. T. 1858). * The publication of this case has been unavoidably delayed. COMMON LAW REPORTS. 189 11 Vic., c. 12, s. 3, as being members of an illegal society called "the Phoenix Club." The facts, so far as they are material to the case, appear fully in the judgments. T. O'Hagan (with him E. Sullivan) now moved that the priÂsoners in the Cork gaol be admitted to bail. They argued that this was a bailable offence, and denied the right to postpone the trial of a prisoner against whom a bill of indictment had been found, except upon affidavit disclosing sufficient grounds to satisfy the judge at the trial that such postponement was necessary ; and they cited the following authorities :-2 Inst., p. 42 ; Regina v. Scazfe (a); Habeas Corpus Act, 21 & 22 G. 3, c. 11 (Ir.); Rex v. Scully (b); Barronet's case (c); Regina v. Woods (d); Regina v. Gallagher (e); Rex v. Morgan (f) ; Rex v. Poynes (g).-[PmaN, J., referred to Rex v. Jackson (h)]. The Attorney-General* (with him Sir Colman 0' Loghlen and A. Vance), for the .Crown, resisted the motion, and contended for the rights of the Attorney-General for Ireland to postpone the trial of a prisoner, without assigning any reason for so doing. They disÂtinguished the practice in Ireland from that in England, and cited the following authorities :-2 Hayes, V. L., 2nd ed., p. 866; Regina v. Chapman (i); Regina v. Owen (k); Regina v. Guttridge (1); Regina v. Bowen (m) ; Barronet's case (n) ; Re Robinson (o); ReÂgina v. Andrews (p): Irish Habeas Corpus Act, 21 & 22 G. 3, c. 11 ; 60 G. 3, and 1 G. 4, c. 4, s. 9 ; Regina v. Maginniss(q); (a) 9 Dow. P. C. 553 ; S. C., 5 Jur. 700. (b) 1 Cr. & Dix, C. C., 168. (c) 1 El. & BL 1 ; S. C., 17 Jur. 184. (d) 9 Ir. Law Rep. 71. (e) 7 Ir. Com. Law Rep. 19; S. C., 8 Ir. Com. Law Rep. 93. (f) 1 Bulst. 84. (g) 3 Bulst.'113. (11) 25 How. St. Tr. 783, 794. (z) 8 C. & P. 558. (1z) 9 C. & P. 83. (1) 9 C. & P. 228, 471. (m) 9 C. & P. 509. (n) Supra. (o) 23 Law Jour., Q, B., 286. (p) 2 D. & Low. 11. (q) 5 Cox, C. C., 511. * J. Whiteside. 190 COMMON LAW REPORTS. E. T. 1859. Witham v. Dutton (a); Bambridge's case (b); Barthelemey's Queen's Bench case (c); Ab., vol. 3, tit. Bail. TILE QUEEN v. beCARTIE. E. Sullivan replied. J. Clarke (with him J. Coffey) made a similar motion on behalf of the prisoners in gaol in Kerry. The Attorney-General (with him Sir Colman 0' Loghlen and A. Vance), for the Crown. J. Coffey replied: Cur. acL vat., HAYES, J. May 4. In these cases, applications have been made to the Court that the defendants should be admitted to bail. The applications are addressed to the Common Law jurisdiction of ;this Court, and are grounded on affidavits of the prisoners, and of their attorney in one of the cases, which affidavits are offered in order to satisfy the Court that, if bailed, the prisoners will be forthcoming at their trial ; and, as an additional inducement, the defendants insist that, by reason of the course pursued in the Court below, according to which their trials were postponed, and themselves detained in custody, they have sufÂfered a hardship which should now recommend them at least to the favourable consideration of the Court. The short facts are...