Ex parte Pater
| Jurisdiction | England & Wales |
| Judgment Date | 09 May 1864 |
| Date | 09 May 1864 |
| Court | Court of the Queen's Bench |
English Reports Citation: 122 E.R. 842
IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER
S. C. 33 L. J. M. C. 142; 10 L. T. 376; 10 Jur. N. S. 972; 12 W. R. 823. See In re Jordan, 1888, 36 W. R. 589, 797.
[299] Ex paete pater. Monday, May 9th, 1864.-Contempt of Court. Quarter Sessions. Jurisdiction. Counsel.-1. Every Court of record has attached to its jurisdiction, as inherent in it, the power to punish for contempt: but if the Court ia one of inferior jurisdiction, the Court of Queen's Bench has authority to intervene and prevent any usurpation of jurisdiction by it; and, if it treats conduct as a contempt which there is no reasonable ground for so treating, may interfere to protect the party upon whom the power to commit or fine for contempt has been improperly exercised.-2. A barrister may be punished for contempt of Court, even for language professedly used in the discharge of his functions as advocate.-3. The Court of Queen's Bench has, however, no jurisdiction to act as a Court of appeal in such cases. Therefore where, on a trial for felony at the Middlesex Quarter Sessions, the counsel for the prisoner, whose mode of conducting the case had been remarked upon by the foreman of the jury, in his address to the jury uttered words which reflected upon the foreman, and being required by the Judge to withdraw them refused, and was thereupon adjudged guilty of contempt and fined, upon motion for a certiorari to remove the order: Held, that as the: words used might have been and were by the Judge adjudged to have been used to insult the juror, there was no excess of jurisdiction, and the Court of Queen's Bench could not interfere. [S. C. 33 L. J. M. C. 142 ; 10 L. T. 376; 10 Jur. N. S. 972 ; 12 W. K. 823. See In re Jordan, 1888, 36 W. R. 589, 797.] In this Term Deuman (McMahon and Kenealy with him), moved for a rule calling upon the justices of the peace for the county of Middlesex to shew cause why a writ of certiorari should not issue, directed to them, to remove into this Court all orders made by them at the General Sessions holden for that county, by adjournment, at the Clerkenwelt Sessions House, in that county, on the 22nd March last, concerning Thomas Kennedy Pater. The affidavit of the applicant stated that he was engaged as counsel to defend one Robert Griffiths on an indictment for larceny, at the adjourned Middlesex General Sessions, in March last, in the Second Court, before Joseph Payne, Esq., acting as Deputy Assistant Judge of the Court. That in the course of the trial he [300] urged to the Court an objection against the course adopted by the prosecuting counsel, when he was interrupted by the foreman of the jury, who said " We know 5B. 4R301. EX PARTE PATER 843 what all that is for, we know the object of such interruptions;" and on another occasion during the trial, in the discharge of his duty, he objected to the prosecuting counsel examining his own witness as if in cross-examination, and contended that as the witness had not shewn himself to be hostile, it was not open to the learned counsel to cross-examine his own witness as if he were hostile, and added that to do so was very objectionable, as very little pressure only was sometimes necessary to induce a person to state that which was not the truth, and that immediately after he had made this objection he was again interfered with by the foreman, who said "That counsel bad no right to insinuate that the witness was not speaking the truth," to which the deponent replied that it would be as well for him, the foreman, not to get into collision with him, the deponent. That these interferences were entirely unchecked by the Court, and were in tone and character such as to lead him to believe that the foreman had prejudged the case, and in consequence of that belief he, in his address to the jury, made the following observation:-"I thank God that there is more than one juryman to determine whether the prisoner stole the property with which he is charged, for if there were only one, and that one the foreman, from what has transpired to-day there is no doubt what the result would bo." That the Deputy Assistant Judge immediately said that that was a very improper observation to make, and insisted upon its withdrawal, and, upon the deponent declining to do so, he said he should take down the observation and consult the Assistant Judge, [301] William Henry Bodkin, Esq., who was then sitting as Judge in the other Court, as to what should bo done, and went to the other Court for that purpose, and on his return said he had consulted the Assistant Judge in reference to this matter, but it was his opinion that at that stage it would not be fair to interfere as it might prejudice the case against the prisoner at the bar, but when it was concluded they should then consider what course should be taken as regarded the deponent. That the deponent then resumed his address to the jury, and at the conclusion of the trial, arid after the prisoner was convicted and sentenced, the Assistant Judge came into the Court presided over by J. Payne, Esq., and recommended him to treat the observation in question as a contempt of Court, and to inflict upon the deponeut a fine of 20, and he was a short time afterwards fiuad 20 by J. Payne. Esq. That before the fine was inflicted he wished to address the Court, but J. Payne, Esq., declined to hear him, and the fine was imposed without an opportunity having been given to him to shew cause why the fine should not be inflicted. That, itt order to ascertain whether the words set forth in this affidavit were the words considered to be the contempt of Court, he made an application to the Court the following morning, and was then informed by J. Payne, Esq. in open Court, that they were the words, and upon his applying for a copy of them J. Payne, Esq., said, " What you have read is sufficiently correct." That in making the observations during the trial he acted bona fide and according to the best of his judgment in discharge of tiie duty which he owed to bis client, and had no thought of offering auy contempt to the Court. That on the 19th April the deponent received a letter from [302] the sheriff of Middlesex informing him that he had received process to levy on him a fine of 20 for contempt of the Court of Quarter Sessions in March last, and unless such fine were paid into the office on or before a certain day it would be his duty to issue his warrant to enforce the same. Denman, on moving.-First. The fine not having been estreated into the Exchequer, this Court has a right to interfere by certiorari for the purpose of examining the legality of the order of the Quarter Sessions, which is an inferior Court; Anon. (1 Ventr. 336); Bex v. Clement (4 B. & A. 218, 229), per Bayley J.; Re Clement (11 Price, G8, 87), per Wood B. [Coekburn C.J. The c;ise in Ventris is inapplicable. There the Quarter Sessions were acting ultra vires, for they fined a man for not obeying an order which they bad no right to make.] Secondly. The order when brought up must set out the facts constituting the contempt, in order to enable this Court to judge of their sufficiency, as was done in Re Fernandes, in Exch. (6 H. & N. 717); S. C. nom. Ex parte Fernandez, in C. P. (10 C. B. N. S. 3),I which was a stronger case than the present, inasmuch as the Court there was a superior Court. In the case of a superior Court, or of the Houses of Parliament, out of deference to the high character of the tribunal, setting out the facts is unnecessary ; The case of The Sheriff of Middlesex (11 A. & E. 273, 289, 292), per Lord Uenraan, in delivering judgment. 844 EX PARTE PATER 5 B. ft 3. 303. Thirdly. There is no precedent for fining a barrister [303] for contempt of Court for words spoken by him in the discharge of his duty. The nearest case is Rex v. Davison (4- B. & A. 329), where a party defending himself was fined, but that case seems questionable. The Court, saying that the case was one of very great importance, as affectiug the independence of the bar and the discharge of the duties of advocates, granted a Rule nisi. The affidavit of Joseph Payne, Esq., Deputy Assistant Judge of the Court of Quarter Sessions for the county of Middlesex, in opposition to the rule, stated that, in the course of the trial referred to, the applicant irregularly told the witness for the prosecution, who was under examination, that he was not speaking the truth. The foreman of the jury thereupon said that he thought the counsel had no right to tell the witness that he was swearing falsely. Whereupon the applicant immediately, in a loud, offensive and insulting tone and manner, said to the foreman, " You had better not get into collision with me, Sir," to which the foreman made no reply, and the case for the prosecution proceeded to its close. When the applicant rose to address the jury on the part of the prisoner he was in a state of great excitement, and began his address in the following words :-" I thank God there is more than one juryman to determine whether the prisoner stole these articles, for if there was only one, and that one the foreman, from what has transpired to-day there is no doubt what the result would be." The applicant also told the foreman [304] that he ought to be removed from the box and another put in his place. The above words were uttered by the applicant in a loud, threatening, insulting tone and manner, and accompanied with violent gestures, and the conduct of the applicant on that occasion appeared to the deponent to be calculated to provoke retaliation on the part of the foreman of the jury, and probably to lead to a breach of the peace. He thereupon stated to the applicant that he thought this was hardly the way to treat a gentleman who was discharging upon oath an important and compulsory duty in a Court of justice, and requested the applicant to withdraw the expressions he had used, as they might be taken to insinuate that the...
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