The Queen v George Gillis

JurisdictionIreland
CourtCourt of Criminal Appeal
Judgment Date07 Jun 1866

Crim. Appeal.

THE QUEEN
and
GEORGE GILLIS.

The Queen v. JohnstonIR 15 Ir. Com. Law Rep. 60.

The Queen v. M'HughUNK 7 Cox Cr. C. 483.

Rex v. Berrigan Ir. Cir. R. 177.

The Queen v. LewisENR 6 Car. & P. 161.

Rex v. DavisENR 6 Car. & P. 177.

Rex v. WheelyENR 8 Car. & P. 250.

Rex v. OwenENR 9 Car. & P. 238.

Rex v. BentleyENR 6 Car. & P. 148.

Rex v. Lamb 2 Leach Cr. L. 559.

The Queen v. TubbyENR 5 Car. & P. 530.

The King v. Boswell Car. & Marsh. 564.

Rex v. DingleyENR 1 C. & k. 637.

Rex v. LewisENR 6 Car. & P. 161.

Rex v. DavisENR 6 Car. & P. 177.

Rex v. OwenENR 9 Car. & P. 83.

Rex v. HamworthENR 4 Car. & P. 254.

Rex v. TubbyENR 5 Car. & P. 530.

Rex v. Brinell 4 C. Cr. C. 402.

Rex v. Chidley 8 C. Cr. C. 365.

Anonymus case R Car. & P. 255.

Rex v. CheshamENR 1 Russ. 418.

Rex v. BurleyENR 2 Stark. 13.

Rex v. Gabbett 1 Den. Cr. C. 236.

Rex v. Court 7 Cr. & P. 486.

Rex v. RednaughENR 10 Exch. 88.

Rex v. OwenENR 9 C. & P. 83, and ibid 238.

The King v. Rudd 2 St. T. 13.

Rex v. Warrickshall 1 Leach Cr. Cas. 118.

Regina v. TaylorENR 8 Car. & P. 734.

Rex v. Spencer and anotherENR 7 Car. & P. 776.

Rex v. LewisENR 6 Car. & P. 177.

Rex v. OwenENR 9 Car. & P. 83.

Rex v. M'Hugh 2 Cox C. C. 48.

Hall's caseENR 2 Leach, 559.

Rex v. Burley 2 Stark. on Evid. 13.

Rudd's caseENR 1 Leach, 115; S. C., Cowp. 331.

Davis's caseENR 6 Car. & P. 177.

M'Hugh's caseENR 7 Cox, 483.

Baldry's caseENR 2 Den. C. C. 327.

Gillam's caseENR Rex v. Gillam (3 Russ. 403).

The Queen v. MooreENR 2 Denison's C. Cases, 525; and also in 3 Russ. 397.

The Queen v. ChidleyENRENR 8 Cox, 365; S. C., 3 Russ. 413.

Rex v. Thornton Moo. & R. 27.

512 COMMON LAW REPORTS. T. T. 1866. Crim. Appeal. COURT OF CRIMINAL APPEAL. May 29. June 7. A constable Tun was a case reserved from the recent city of Dublin Special went to the Commission. C The following were the facts stated by the learned house of A, to omm. obtain infor mation about Judges :- hen and told by was A The prisoner was tried, at the Special Commission, for treason- certain facts felony, and found guilty. He was sentenced to five years' penal implicating A in a treasona- servitude. ble conspiracy. The constable Upon the trial, Mr.'John Calvert Stronge was called as a witness. left, and re turned next He is one of the Divisional Magistrates for the city of Dublin. morning and asked A if he Proved his name and handwriting to the depositions of the prisoner, was willing to come down first taken on the 27th of September, and re-sworn on the 2nd of and repeat his statement October 1865. Prisoner made the information on oath, and signed to the superin- . it in witness's presence. He was sworn, and must have been asked tendent of police. The • if the contents were true. superintendent asked A to go On cross-examination-The information was taken from prisoner before a Ma gistrate and in reply to questions from witness, and in some instances he fol make an infor mation " as a lowed up the answers with statements of his own. He was first witness." A consented, sworn. He was produced as a witness for the Crown, ready and made an infor mation, and willing to give his evidence for the Fenian prosecutions. There afterwards re swore it ; and were about forty prisoners then in custody. No one present before made a further information in of witness when he made his first information on the 27th o Sep- the presence of B, and others. tember,-no one present but the clerk who took down the evidence, He was ex amined by the Magistrate and by Counsel, and received no caution against criminating himself. Subsequently he refused to give evidence on the trial of B, and the other prisoners, he was arrested and tried for treason-felony. His own inforÂÂmations were put in evidence against him, and he was convicted. Held (dissentientibus IVIoNAnns, C. J., and KEOGH, J., dubitante FITZGEÂÂRALD, B., as to the first information), that both informations were inadmissible, and that accordingly the conviction was erroneous. * Car am LEFROY, C. J., MONAHAN, C. J., KEOGH and O'BRIEN, JJ., FITZGERALD and HUGHES, BB., FITZGERALD, J., DEASY, B., and O'HAGAN, J. COMMON LAW REPORTS. 513 himself, and witness. The information was read over in the pre- T. T. 1866. rim. Appeal. senee of the prisoners in charge, and the prisoner was then C THE re-sworn. The prisoner was produced by some member of the vQUEEN . police force. He was not in custody ; but a statement was made to GILLIS. me that he could give evidence about the pike-making. The stateÂÂment made in his presence was, " Here is the witness." He was then examined by witness, believing that he could give evidence as to pike-making, Witness did not know that he knew anything of the conspiracy. His statements came out one after another as witness pursued the subject, finding that he knew much more than witness thought. Witness did not look on him as an informer, but treated him as a Crown witness in the ordinary sense. No one, had charge of him. He was not in custody. Beyond all question he was not. The first step witness took was to swear him. AdÂÂministered the oath as a Magistrate. His evidence affected all the prisoners, and more particularly Michael Moore. Witness gave him no caution whatsoever. Did not consider he would implicate himself. Did not caution him on the second occasion. Witness• did consider him on the second occasion in the nature of an approver. Not the slightest inducement was held out to him on the first or second occasion by witness or by any one to his knowledge. Charles Smith, one of the G division of police, examined.-Went to look for Moore at Francis-street on the 26th of September, and saw the prisoner. Told him I came to make a search. L said, "I understand you have a forge." He at once went-to a door and opened it, and admitted us to the forge. He said he had let the forge to Michael Moore, who he knew was a blacksmith, and that on the following Monday he brought in three other men,, whom he named. He told me the way they were making pikes, and bow they were sent out. I left, and returned again on the morning of the 27th. I asked him, " Are you willing to come down and state what you stated to me to my superintendent "? He said "I am." He thereupon put on his coat and came along with me. He did that perfectly voluntarily. I did not hold out the slightest induceÂÂment or threat to make him give evidence. He told me that on one occasion he carried fifty pikes to a man at the corner of Mark's voL. 17. 66 L 614 COMMON LAW REPORTS. T. T. 1866. alley. He told me he attended a Fenian meeting at a house kept by Crim. Appeal. a man named Phibbs, at the corner of Patrick-street. It was THE QUEEN attended by seventy-five officers, amongst others Moore. He also v. GILLIS. said he was a serjeant in the society. The next day, went back and asked him would he make the statement to my superintendent? and he said he would; and all that was voluntary and without any inducement or threat whatsoever. Went on the 5th of October to him, and told him I came for him to come and hear his informations read over in the presence of the prisoners. He at once put on his coat and came along with me, and he then said, " If I had to do this again I would rather take ten years than do it, for my family will be ruined by it." I brought him down to the Lower Castle-yard, and he then said he would take five years no* to get out of it. Cross-examined-I was in plain clothes, and so was Serjeant Clarke. He knew me perfectly well, and bid me good morning. The conversation was going on whilst we were searching. I asked him some questions about Michael Moore, how he made the pikes. Moore was in custody at the time. To the best of my belief, I told him Moore was in custody. Said it was unpleasant to search his place, but that I must do my duty. I did not go to make an arrest. Prisoner was not in our custody. On the 27th, Clarke and I accompanied prisoner to Superintendent Ryan, Lower Castle-yard. Mr. Superintendent Ryan examined.-I brought Gillis down to the Magistrate. He came voluntarily. I introduced him. I never held out any inducement or threat whatsoever. I asked him had he any objection to give information, and he said not. I saw him after in prison, and said if he would adhere to his first information I could serve him. I did not tell him that he ought not to criminate himself, or that what he would say would be used against him. I knew from his own statement that he had been implicated in the conspiracy, from his own voluntary statement. I then asked him was he willing to make that statement before the Magistrate, and it was to be as a witness. He said " yes." I then, in the ,prisoner's presence, said, " Here is a man named Gillis, and would your Worship hear what he has to say, and take his information "? COMMON LAW REPORTS. 515 I understood him to go before the Magistrate as a witness, and T. T. 1866. I have no doubt he understood the same. Crim. Appeal. At the close of this evidence the Crown tendered in evidence the THE QUEEN V. prisoner's information. Mr. Butt objected to its reception, and we GILLIS. allowed the information to be read, reserving the propriety of our doing so for the consideration of the Court of Criminal Appeal. If the information was improperly received, the conviction cannot be sustained. The objection taken to the information was, as being made under an expectation that prisoner would be taken as an approver or witness ; and, secondly, that, being on oath, he was bound to answer all questions put to him, unless he said it would criminate himself to do so. We refer to the information. May 1866. WILLIAM KEOGH, Copy of Informations. Police Division of Dublin Metropolis, The information of George to wit. Augustine Frederick Gillis, of No. 83 Francis-street, cart and dray maker, in said district, taken before me, one of the Magistrates of the Dublin Police in said district. I, informant, being duly sworn upon oath, depose...

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