247
[18]
As at present advised, I cannot admit the letter you have written to the Crown Solicitor to be read in Court.
In that letter you say that the matter can be treated as a criminal information. Can it? Leave for a criminal information is asked from the Court, and addressed to its discretion—a discretion regulated by abundant precedents, and I may say that, as at present advised, these would preclude the Court from granting leave for a criminal information in the Amaral libel.
Again, you purpose to delegate the conduct of the prosecution to an Advocate retained expressly on behalf of Senhor Amaral, to secure a conviction, using all the means solely directed to obtaining a conviction, while you, as Attorney General, can seek only such a verdict as the justice of the case may require.
Again, according to the Colonial practice here, if not according to your absolute duty, the Court has the right to have the benefit of the conduct of criminal cases by the Attorney General for its protection, where the Court cannot obtain aid from conference with Judges, and I now think I must, and that I shall, claim it. As at present advised, it seems to me that the Attorney General has but one of two courses to pursue, either to reject the action of the Acting Attorney General, as being wrong ab initio, or to adopt it, and himself carry the case through with that fairness and moderation which you have exercised, and are bound to exercise, instead of leaving the case to be conducted by an Advocate, who cannot be expected to fall under anything like official restraint.
I must say that any middle course of intrusting the prerogative of the Crown—its personal prerogative—to any mere Advocate tends to degrade it, and I cannot but feel that a heavy responsibility will rest on whoever exposes the Royal prerogative to such degradation. I will not sanction it.
The only difficulty is, that Senhor Horta's evidence has been taken (at instance of the Acting Attorney General) de bene esse. I think if a nolle prosequi is entered, that might be done; conditional on an admission by the Defendant that that evidence may be used on any ordinary information, in the nature of a true bill by a grand jury, or upon any criminal information filed by leave of the Court.
I have exceeded my duty in thus writing to you, of which the Defendant may complain; but I must risk his objection to this note, in the hope that it may simplify the present complex state of these proceedings.
As you will see, I write in much haste.
Yours truly,
JOHN SMALE,
Chief Justice.
The Honorable J. PAUNCEFOTE,
Attorney General.
D.
SUPREME COURT,
February 10th, 1869.
BEFORE CHIEF JUSTICE SMALE.
IN BANCO.
Regina v. Saint, on demurrer.
This was a demurrer by the Crown to the pleas filed by Defendant in the above case, it having been arranged between the parties that a plea of justification was to be filed by the Defendant.
[19]
Mr. Pollard, Q.C., instructed by Mr. Hazeland, Crown Solicitor, appeared for the Crown, and Mr. Hayllar, instructed by Mr. Francis, appeared for the Defendant.
The case having been called,—
The Attorney General rose, and said he was anxious to make a few observations before the case commenced.
His Lordship enquired how the Attorney General appeared, as he could not hear anything but on the ex-officio information.
The Attorney General said he was simply present this morning.
His Lordship: Unless you are here in support of the ex-officio information I cannot hear you.
The Attorney General: I appear here in my official position as Attorney General to state the steps which----
His Lordship: The Government intend to take? that is, you appear on behalf of the Government.
The Attorney General said the case was one of considerable public interest, and he had communicated with the Government upon it. They had considered the matter, and come to their decision, and he appeared to communicate that decision to the Court. In order that there might be no mistake, he had thought it would be convenient to address a letter to the Crown Solicitor embodying the instructions of the Government. This letter he proposed to read to the Court.
The Attorney General then commenced reading the subjoined letter, but had not got beyond the first two lines, when His Lordship interrupted him at the words "the course which has been decided upon" by observing: The course which you have decided upon.
The Attorney General said that he had already explained that he was expressing the views of the Government,
The Chief Justice enquired whether the letter was not really drafted by the Government under his advice.
The Attorney General respectfully declined to state in Court anything which took place in Executive Council. He was instructed to inform the Court the course adopted by the Government. They, in common with himself, were placed in a very difficult position, and he had the misfortune to differ with the Court. He would continue reading, if he were not to be interrupted.
His Lordship, of course, understood the difficulty of the position. He was in a difficult position too, especially as he had no one to advise him; in fact they all were, but would have to do their best.
The Attorney General here took up the letter again.
His Lordship again objected to the letter, but at the instance of the Attorney General, who suggested it would be well that it were read through, permitted this to be done.
The learned gentleman then read as under:—
(See Letter B, infra.)
The Attorney General could not conceive it possible to place the case upon a fairer footing. It would go before a British jury, whose duty it was to protect both the liberty of the "Press," and the private character of individuals. Both parties, therefore, could not wish better than that the case should go before a jury for decision.
N.B. The above report is from the Daily Press of 12th February, 1869.
J. P.
247
[18]
As at present advised, I cannot admit the letter you have written to the Crown Solicitor to be read in Court.
In that letter you say that the matter can be treated as a criminal inform- ation. Can it? Leave for a criminal information is asked from the Court, and addressed to its discretion--a discretion regulated by abundant precedents, and I may say that, as at present advised, these would preclude the Court from granting leave for a criminal information in the Amaral libel.
Again, you purpose to delegate the conduct of the prosecution to an Advocate retained expressly on behalf of Senhor Amaral, to secure a conviction, using all the means solely directed to obtaining a conviction, while you, as Attorney General, can seek only such a verdict as the justice of the case may require.
Again, according to the Colonial practice here, if not according to your absolute duty, the Court has the right to have the benefit of the conduct of criminal cases by the Attorney General for its protection, where the Court cannot obtain aid from conference with Judges, and I now think I must, and that I shall, claim it. As at present advised, it seems to me that the Attorney General has but one of two courses to pursue, either to reject the action of the Acting Attorney Gene- ral, as being wrong ab initio, or to adopt it, and himself carry the case through with that fairness and moderation which you have exercised, and are bound to exercise, instead of leaving the case to be conducted by an Advocate, who cannot be expected to fall under anything like official restraint.
I must say that any middle course of intrusting the prerogative of the Crown -its personal prerogative--to any mere Advocate tends to degrade it, and I cannot but feel that a heavy responsibility will rest on whoever exposes the Royal preroga- tive to such degradation. I will not sanction it.
The only difficulty is, that Senhor Horta's evidence has been taken (at instance of the Acting Attorney General) de bene esse. I think if a nolle prosequi is entered, that might be done; conditional on an admission by the Defendant that that evidence may be used on any ordinary information, in the nature of a true bill by a grand jury, or upon any criminal information filed by leave of the Court.
tend
I have exceeded my duty in thus writing to you, of which the Defendant may complain; but I must risk his objection to this note, in the hope that it may to simplify the present complex state of these proceedings.
As you will see, I write in much haste.
Yours truly,
JOHN SMALE,
Chief Justice.
The Honorable J. PAUNCEFOTE,
Attorney General.
D.
SUPREME COURT,
February 10th, 1869.
BEBORE CHIEF JUSTICE SMALE.
IN BANCO.
Regina v. Saint, on demurrer.
This was a demurrer by the Crown to the pleas filed by Defendant in the above case, it having been arranged between the parties that a plea of justification was to be filed by the Defendant.
[19]
Mr. Pollard, Q.C., instructed by Mr. Hazeland, Crown Solicitor, appeared for
the Crown, and Mr. Hayllar, instructed by Mr. Francis, appeared for the Defendant.
The case having been called,--
The Attorney General rose, and said he was anxious to make a few observa- tions before the case commenced.
His Lordship enquired how the Attorney General appeared, as he could not hear anything but on the ex-officio information.
The Attorney General said he was simply present this morning.
His Lordship: Unless you are here in support of the ex-officio information I cannot hear you.
The Attorney General:-1 appear here in my official position as Attorney General to state the steps which----
His Lordship:-The Government intend to take? that is, you appear on behalf of the Government.
The Attorney General said the case was one of considerable public interest, and he had communicated with the Government upon it. They had considered the matter, and come to their decision, and he appeared to communicate that decision to the Court. In order that there might be no mistake, he had thought it would be convenient to address a letter to the Crown Solicitor embodying the instructions of the Government. This letter he proposed to read to the Court.
The Attorney General then commenced reading the subjoined letter, but had not got beyond the first two lines, when His Lordship interrupted him at the words "the course which has been decided upon" by observing:--The course which you have decided upon.
The Attorney General said that he had already explained that he was expressing the views of the Government,
The Chief Justice enquired whether the letter was not really drafted by the Government under his advice.
The Attorney General respectfully declined to state in Court anything which took place in Executive Council. He was instructed to inform the Court the course adopted by the Government. They, in common with himself, were placed in a very difficult position, and be had the misfortune to differ with the Court, He would continue reading, if he were not to be interrupted.
His Lordship, of course, understood the difficulty of the position. He was in a difficult position too, especially as he had no one to advise him; in fact they all were, but would have to do their best.
The Attorney General here took up the letter again.
His Lordship again objected to the letter, but at the instance of the Attorney General, who suggested it would be well that it were read through, permitted this to be done.
The learned gentleman then read as under:--
(See Letter B, infra.)
The Attorney General could not conceive it possible to place the case upon a fairer footing. It would go before a British jury, whose duty it was to protect both the liberty of the "Press," and the private character of individuals. Both parties, therefore, could not wish better than that the case should
before a jury for decision.
go
N.B.The above report is from the Daily Press of 12th February, 1860.
J. P.
No comments yet.
Private notes are available after approval.