CO129-137 - Sir MacDonnell - 1869 [4-5] — Page 148

(22)

before this Court, weak as it is with one on the whole record is open to my decision. Mr Pollard then opened the Demurrer. Judge unly, considering the undue in- fluence on his judgment which such a Having enumerated a number of proposi- communication, that the case ought to go tions, and having cited cases from the ear- to a Jury, tended to produce. The indi- liest times to the present, he objected amor¬. rectness of the communication by the At-other points to the second plea as being torney General to the Court in reading a too general, He cited cases in which a lotter to his own Attorney in the matter, as crime was charged in the libel, and he con- the medium of information, was a discour-tonded that the specific charge must be tesy to the Bench, though doubtless no such made as if the libelled person were on his With reference trial for the offence. It seems to me that discourtesy was intended. to the statements which the Attorney Ge- the doctrine, with curious illustrations in neral made in that letter, as he had not Stark on Libel 236, is according to the applicable (if still applicable) been presont he could write only from in-cuses formation given to him, and as to which 1 only where by the libel an indictable And that it cannot think he has been misinformed, particular offence is charged. ly when he treated as a favour to him, that apply where the libel does not impute 213 offence nor even then when the Defendaut had been allowed to pleari a such Plea of Justification, whereas the Acting the Queen and not the party libelled prose- Attorney General had expressly admitted cutes. It would be absurd in the absence it to be the Defendant's right so to plead. of the libelled person to try whether for in- And as to costs, they on more than one stance he had committed a murder. In my occasion were admitted on both sides to me opinion the libel before me insputes no such to necessarily follow the event by force of offence. Again he showed where be consi- Ordinance No. 4 of 1857. How with Lord i dered the plea to be bad for want of parti- Mansfield's dictum (Sir W. Blac. 514) before oularity, but then particularity is relative him he could as in that letter he said he and must be more or less precise according should do, and as he did, give a locus standi to the nature of the transactions charged. to the counsel of any private prosecutor or It appears to me that the rule of justifica- Ontion is that it must be as reasonably certain complainant I am at a loss to conceive,

my decliuing to hear him otherwise read as the nature of the case will admit, and the letter he appeared pro formé and only reading the plea in a plain common souse way, I think that in an ordinary case and pro forma in the prosecution.

I feel that the reading this letter in Court under ordinary circumstances the Attorney was unconstitutional and that it has great-General as a prosecntor would, if exercising ly increased my difficulties. It is the ex- his own unbiassed judgment, not have de- pression of the views of the Attorney Ge- murred, but that he would have felt that neral, and of him aloue, and I will not con- the case set out by the Defendant was suf- sider it in whatever terms expressed as ex- ficiently precise on which to take issue, pressing any opinion much less decision by having regard to the nature of the charges the Executive, who ought not constitution and the very great difficulty if not impos. ally to have been mixed up by the Attorney sibility to be more precise. Reading them General in the question before me. The as a whole, the charges and facts appear to Attorney General, and he only, is respon- me to be intelligible, and I am surprised at sible for the conduct or discontinuance of any disinclination to meet them by any every ex officio Information, for it is he who body. Then Mr Pollard cut up the plea into prosecutes and he alone ought to appear or almost infinitesimal parts, into more than And when he had finished, can be recognized by this Court in it. The 20 sections. Attorney General having read his letter the words of, I think, Cowper recurred to I had thought retired from all active conduct of the pro-me * We murder to dissect.” ceedings, having given, as he said he should I had understood the plea as meaning some- do, a locus standi to the Counsel of the com- thing as a whole; thus dissected, it was a plainants; but the prosecution continued to dead body without sense or meaning, be his, and however conducted it was upon Mr Pollard's most serious attack on this his official responsibility. Mr Pollard, as plea was this, that whereas it appeared to such Counsel, conducted the case with very profess to be a denial of the use of the great ability and with zeal such as he might words with the meaning imputed to them, well be expected to display, but with greater and a justification of them as true in their zeal, especially in working out refinements natural sense with that sense explained by in argument, than I think the Attorney the Defendant's own innuendoos, according General would or should have thought pro-to the form set out in Bull & Leake 2nd per as representing the Queen in person, the edit. (1862) page 613, Mr Pollard was the fortunate possessor of the only copy of a parens patria.

It was admitted that every point patent' third edition of the same work (1868) just ar-

But

145

the consideration to inform This passage is inexplicable - Shad

the Court

of the course which as Atorney General on my return to the Colony & propoved to take with the

approval of the Executive

in respect to this troublesome case which had lowing to the offe

to the opposition of the C.S.) been hung up for mon ho awaiting my return and for that my official conduct is publicly sigmatized

discourteous.

as unconstitutional and