CO129-138 - Sir MacDonnell - 1869 [6-7] — Page 242

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r. Lord Geo Gordon, 1787; Box ». Vint, 1801; Rex e. 11803, The Government n, 176t; Box

First. Those which are truly and properly "the Sovereign's own suits" and are filed by his own immediate officer, the Attorney General. The objects of this Rex kind of information are properly such enormous misdemeanours as peculiarly tend Potier, (temp. Napoleon to disturb or endanger the Government. There are but few instances of this kind Preas Prosecution in of process among which may be mentioned the information (by command of the Crown) for a libel against the French Ambassador (Rex v. D'Eon, in the year were abandoned and 1764, and the other cases cited in the margin.)

prose- by the

Secondly-Informations in which though the Crown is the nominal cutor, yet it is at the relation of some private person and they are filed Queen's Coroner and Attorney in the Queen's Bench usually called the "Master of the Crown Office," who is for this purpose the standing officer of the public.

Enginud in 1858,

(See nose to Mill's Essay on incntioned prosecutions were probably not inated by information, for is appears from private enquiries mado at the Crown Office in London that no ef officio information by the Attorney General for defamatory libel has been the sines the passing of Lord Camp-bell's Act (24th August, 1813.) See also the 1ath chapter of Cooke ou Defamation, which is to subject.

It is contended by some persons that this latter kind of remedy so common in petits devoted England in cases of libel and generally known as a “Criminal Information for Libel" cannot be resorted to in this Colony, because no "Master of the Crown Office" has been eo nomine designated by the Ordinance or appointed by the Governor; but it appears to me that inasmuch as the office of the Supreme Court is the "Crown Office" of the Colony, its chief officer, the Registrar, may by implication and analogy discharge the functions of " Master of the Crown Office."

The Supreme Court itself acted upon this impression in 1859, when a rule absolute for a criminal information for libel against Mr. TARRANT, the Editor of Rey e Tarrant, the Friend of China, was obtained, and the information was in the form of infor ination by the Master of the Crown Office in England, and was filed and signed by the Registrar. The records of the Court shew also that in the same year a rule isi for a criminal information for libel against another Newspaper Editor, Reg. 2. Murrow. Mr. MURROW (of the Daily Press), was obtained, though it was subsequently abandoned.

MB-1hc Defendant apologize.

N.B.It might have

This being then the state of the Law in the Colony, as I view it, it was com-petent to the Macao Authorities either to apply to the Supreme Court for a rule for a criminal information against Mr. SAINT, or at all events to prosecute the Defendant under the provisions of Ordinance No. 3 of 1865; but instead of so doing they procured informations to be filed not in the statutory form provided by Ordinance No. 3 of 1865, but in the ancient form of "ex officio informations by the Attorney General," the gist of the offence as laid in them being that the libels complained of tend to create discord between Great Britain and Portugal. The following complication, therefore, arises, that while the proceedings are thus clothed with the form and character of State prosecutions, they have not been instituted by command of the Crown (as might be supposed where it is suggested that the peace and safety of the Realm are meuaced) but at the relation of third parties, whose object is to redress a private wrong and who have been allowed to be represented by their own Attorney and Counsel in the "Sovereign's own suit." This is quite irregular for as Lord Mansfield says in the case of Rex ». D'Eon (1 Wm. Blackstone, 514) "Informations ex officio are personally the King's prose-"cutions. No man is there to be considered in the light of a promoter or private prosecutor." There is a further irregularity in this respect that, according to my opinion, such an information as the one in question, on the principle laid down in the case cited in the margin, does not come within the operation of Lord Beguts, 2 Cox, ca. Campbell's Act, and that the Defendant cannot legally plead a justification and extend this recover his costs if successful, but it appears that the Macao Government, through their Counsel and with the sanction of the Court, have consented to a plea of justification being filed in answer to this information, and they have also given guarantees for the payment of costs if defeated, a state of things which, though highly creditable to the Macao Government as manifesting their sense of justice and fair play, is nevertheless quite incompatible with the nature of the proceeding instituted, and touches the constitutional rights of the Crown.

66

bern dealt with uyler Ordiusnce No. of 1869 (see Sections relating to private prosecu-tors)

p. 45.

to Colony by Ordinance No. 3 of 18. So, which apples only to private prosecu tions.

No. 0 of 1865. is missing. Tannes 2 correspondence on the subject.

The ordinary form of information under the Ordinance may be seen by refer-ence to Section 5, and I transmit herewith a copy of the ex officio information 1 and that his red filed against Mr. SAINT, and also a copy of the information in 1859 against Mr. TARRANT by the Registrar as Master of the Crown Office.

N.B.-The Attorney General may put off the trial of ant et officio, infor-mution for 12 months.

Governor Da Ponte c Horta.

C. S. O. No. 280.

The information was filed on the 1st of May last; the pleas were put in on the 11th of July, and after a long delay insisted on by the prosecution and of which the Defendant complains as harrassing, a demurrer to the plea of justifica-tion was filed on the 14th of December.

Considerable expense has been already incurred on both sides, and a de bene esse examination has been held of the late Governor of Macao, who has now returned to Europe.

I have used my utmost endeavours to bring about an amicable settlement of the whole affair, but I regret to say that my efforts have been unsuccessful, and 1 am now compelled to take some definite step and either with the permission of the Governor to enter a nolle prosequi, or follow such other course as His Excellency may think desirable.

I have the honor to be,

Sir.

Your most obedient Servant,

JULIAN PAUNCEFOTE,

Attorney General.

Minute of His Excellency the Governor on the above Letter.

I reserve my decision individually till Mr. PAUNCEFOTE gives his advice in his capacity of Member of Executive Council, and as it will no doubt in such a case have special influence with the Members, I think this paper had better go to him first.

20th January, 1869.

Minute of the Attorney General.

R. G. M. D.

I am inclined to think that this question should, if possible, be settled in a way which would give fair play to both sides without compromising the rights of the Crown. The difficulty is one of form-for in the proceeding instituted by the Acting Attorney General, the prosecution must be by the Crown alone and cannot be at the relation of a third party;-no plea of justification should be allowed as of right, and no costs should be given or taken. This, however, is a harsh node of dealing with the Defendant and would no doubt have been discountenanced by the Government if they had been consulted in the beginning. In order to mitigate this procedure, the Acting Attorney General consented to a plea of justification and obtained from the Macao Authorities an indemnity as to costs which he seems to have assumed would be payable by the Crown, under Section 3 of Ordinance No. 4 of 1857 in case the prosecution failed. The Defendant was thus placed in the same position practically as if a criminal information by the Master of the Crown Office had been filed.