The Queen v Nagle

• Jurisdiction: Ireland
• Judgment Date: 26 November 1867
• Date: 26 November 1867
• Court: Queen's Bench Division (Ireland)

Q. Bench.

THE QUEEN

and

NAGLE

The Queen v. Gray 2 Leg. Rep. 267; Ir. Circ. Cas. 423.

The Queen v. FrostENR 9 c. & P. 129.

The Queen v. Mƒ€™CormickUNK 17 Ir. C. L. R. 411.

The Queen v. Mƒ€™CartieUNK 11 Ir. C. L. R. 188.

Lord Aylesburyƒ€™s CaseENR 1 Salk. 103.

The Queen v. Nolan 11 Ir. Jur N. S. 372.

Barronetƒ€™s Case Dearsly, C. C. 51.

Rex v. WyndhamENR 1 Str. 2.

Crosbyƒ€™s CaseENR 12 Mod. 66.

Fitzpatrickƒ€™s CaseENR 1 Salk. 103.

Lord Aylesburyƒ€™s CaseENR 1 Salk. 103.

Criminal Law — Bail — Ill health of Prisoner — Delay on the part of the Crown.

THE QUEEN v. NAGLE. Criminal Law-Bail-Ill health of Prisoner-Delay on the part of the Crown. Motion to admit a prisoner, in custody under a charge of treason felony, to bail, refused, though it appeared that the prisoner was in ill health, and that an Assize and. two Commissions had been allowed to pass without bringing him to trial, the Crown accounting for the delay, and there being no evidence of danger to the prisoner's life from confinement, or that he was suffering from any orÂganic disease. Tins was a motion to admit the prisoner to bail. The prisoner was charged with being one of a number of men who had come to this country from the United States, in a vessel called The Jackmel, with, it was alleged, the intention of exciting an insurrection. The vessel spent some days in the bay of Sligo, where she was boarded by a man of the name of Gallagher. She then proceeded to the coast of Waterford, where a number of those who were on board, and amongst them the prisoner, were landed. The prisoner was arrested in the county of Waterford ; and when, on that occasion, asked his name, he stated that it was William Palmer, and that he came from Cork. He was afterwards exaÂmined before a magistrate in the country, and before another in Dublin, and on both occasions stated that he was a citizen of the United States. In the middle of June he was sent to Kilmainham i gaol, and remained there until September, when he was, in conÂsequence of the delicate state of his health, removed to Mountjoy prison. The Summer Assizes for the county of Sligo took place in July. A Commission sat in Dublin in August. On the. 10th of October the prisoner received notice of trial at the then next Commission in Dublin, and also received a notice to produce certain documents. At the Commission, which sat on the 20th October, bills for treaÂson felony were found against him. His counsel stated then, in open court, that he was a native-born citizen of the United. States ; and the Attorney-General announced then that the prisoner would not be tried in Dublin, and would be tried in Sligo. Accordingly, he was not arraigned. THE IRISH REPORTS. In his affidavit, made for the purposes of the present motion, the prisoner stated that by his previous confinement in KilmainÂham gaol he had suffered considerably in his health, and in conseÂquence thereof was removed to Mountjoy prison ; and from his experience of the effects on his health and constitution of the imprisonment he had already undergone, he believed that further imprisonment during the approaching inclement and winÂter months would be productive of very serious injury to his health. He produced a certificate, verified by affidavit, of Dr. Thornhill, the visiting physician of Kilmainham gaol, which was as follows :- " Kilmainham Gaol, 22nd November, 1867. " I certify that Mr. William J. Nagle, committed to this gaol the 15th June last, is at present in delicate health. " Until the last two months his health has been very good ; but within that period there has been a manifest failure in his appeÂtite, which had been previously good, and, although on a nutriÂtious diet, he has lost flesh. This has been so marked as not only to attract my own attention, but has been also observed by the goÂvernor of the gaol and the warder in charge of him. " He does not labour under any organic disease ; but, from the fact of his now being delicate, I consider that protracted confineÂment is calculated to exercise an injurious effect upon his health. " W AI. THORNHILL, M. B." Dr. Banits, who had visited the prisoner in conjunction with Dr. Thornhill, gave the following certificate : " I have this day visited Mr. William Nagle, in conjunction with Dr. Thornhill ; and having with much care inquired into the state of his health, and all the circumstances connected with his case, I fully concur in the opinion formed by Dr. Thornhill, and expressed in his report. "J. T. BANKS, M. D." When removed to Kilmainham gaol, the prisoner described himself to the prison authorities as a native of the United States, and he was so described in the prison book. The case on the part of the Crown was, that it was not until COMMON LAW SERIES. the latter end of September and October that informations were made upon which the prisoner could have been brought to trial. One information was that of a man named Buckley, an approver, who had. been one of the passengers in The Jackmel. This was not made until the 23rd September. Another was that of a pilot named Gallagher, who had boarded the vessel in Sligo Bay, and deposed to certain unlawful-acts of the prisoner. That informaÂtion was made on the 12th October. There was an information made on the 14th October, by a person named Corydon, who deÂposed to having known the prisoner as a prominent member of the Fenian organization. There was another information, made by a man named Roche, also on the 14th October. The affidavit of the Crown Solicitor stated that it was not until the proceedings at the Commission in Green-street that he was made aware that the priÂsoner was a native American : on that occasion it was so stated by the prisoner's counsel. Whatever further facts appeared will be found stated in the judgments. Heron, Q. C., and Molloy, for the prisoner. There has been great delay here, and the prisoner's health is suffering. An Assize and two Commissions have been allowed to pass since his arrest. The Queen v. Gray (1) is a direct authority on the present case. The prisoner's life is not to be sacrificed to the blunders of the prosecutor : The Queen v. Frost (2). The Attorney-General and the Solicitor-General (with them Murphy, Q. C., and T. P. Law), for the Crown. There is no suggestion in the prisoner's affidavit either that the prisoner is innocent, or that he will be forthcoroing to take his trial. There is strong presumptive evidence against him • The Queen v. 31'Cormick (3) ; The Queen v. ilffartie (4). The Crown give a reason for the postponement. The prisoner, being an alien, can only be tried for acts in this country ; and any such acts were done in Sligo, and he must be tried there. He could not possibly have been tried there at the last Summer Assizes. The affidavit (1) 2 Leg. Rep. 267 ; Ir. Circ. (3) 17 Ir. C. L. R. 411. Cas. 423. (4) 11 Ir. C. L. R. 188. (2) 9 C. & P. 129. 256 THE IRISH REPORTS. as to the prisoner's health is unsatisfactory. There is no suggesÂtion of any danger to his life : Lord Aylesbury's Case (1) ; The Queen v. Nolan (2). The case is quite different from that of The Queen v. Gray, which was exceptional. The prisoner is an alien, has no home in this country, and there is nothing to make it likely that he will appear to stand his trial. Molloy, in reply. The commitment for trial in Dublin has never been altered. There is no allegation here by the Crown that the prisoner will be brought to trial at Sligo. None of the cases cited on the other side apply here. There was not the same amount of delay in any of...