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Colonial Cases

In re McDermott 1866

[contempt of court]

In re McDermott

Judicial Committee of the Privy Council
1866, 1868
Source: The Times, 5 November, 1866

Present - Lord Westbury, Sir E. v. Williams, Sir J. Colville, and Sir L. Peel.
  Mr. Coleridge, Q.C., applied to their Lordships on the part of Lawrence M'Dermott, of Water-street, New Town, city of George-town, British Guiana, the proprietor and publisher of the Colonist newspaper, for leave to appeal against certain orders and proceedings of the Supreme Court of Civil Justice of the colony of British Guiana, by which as conductor of the newspaper he had been committed to prison for a period of six months for an alleged contempt.  The applicant in his petition stated that he was a British subject, and the proprietor and publisher of the newspaper mentioned; that for some time past great dissatisfaction had existed as to the proceedings of the Supreme Court, and in reporting the proceedings he had allowed them to be commented upon in the Colonist newspaper in respect to the case of one of the officers, Mr. Campbell, who had been compelled to resign his office. Shortly after the 29th of March last he had received an order of the Court, setting forth the complaint made, that he should attend on the 4th of April to show cause why an attachment should not be issued against him for contempt; that the petitioner appeared before Chef Justice Beaumont and Mr. Justice Beete, who, without hearing certain objections, adjourned the matter to the 6th of the same month. He again appeared before the Court as directed, and the Attorney-General and Mr. Gilbert were his counsel; and after hearing them he was ordered again to appear on the 10th of the same month, when it was objected that the order made in the matter was irregular. The Court overruled the objection, and offered to allow further time, but his counsel decided to show cause under the order made. Mr. E. C. Ross, the informant, was heard; and the decision was deferred till the 13th of April, on which day the Court, consisting of Chief Justice Beaumont and Mr. Justice Beele, gave judgment that the petitioner had been guilty of a contempt by publishing matter in the Colonist scandalously reflecting on the Court and the administration of justice, and for such contempt he was ordered to be imprisoned in Her Majesty's gaol of George-town for the term of six calendar months.
  The petitioner further alleged that he was delivered into custody, and applied for leave to appeal to the Queen in Council, and had been refused on the ground that it was not an appealable case. That he had been advised that his only remedy was to appeal to the Privy Council for liberty to appeal, and in his petition he complained of the proceedings as illegal, and prayed an inquiry into the matter as well for the sake of his own character and reputation as for the rights and due administration of justice. Mr. Coleridge asked their Lordships to grant permission to the petitioner to appeal, and then the matter could be inquired into.
  Lord Westbury consulted the other members of the Committee, and said their Lordships would give leave to the petitioner to appeal, but would reserve to themselves the right to consider whether it was allowable.
  An order was made to appeal without prejudice to the competency of the appeal.


Source: The Times, 2 December, 1868

(Present - Lord Chelmsford, Lord Justice Wood, Sir E. V. Williams, and Sir J. Colville.)
  This was an application in appeal on the part of Lawrence M'Dermott, of Georgetown, in the colony of British Guiana, proprietor and publisher of the Colonist newspaper, against certain orders and proceedings of the judges of the Supreme Civil Court of the colony, whereby he had been committed for six months for an alleged contempt of court. Lord Justice Selwyn, who had been engaged in the matter when at the Bar, withdrew from the hearing of the present application.
  Mr. Coleridge, Q.C., Mr. C. Pollock, Q.C., and Mr. E. F. Moore appeared for the appellant, instructed by Messrs. Whitaker and Woolbert; the Solicitor-General, Mr. Archibald, and Mr. Cracknall were for the judges, instructed by the solicitors to the Treasury.
  In November, 1866, the appellant, on an ex parte application, obtained leave from the Judicial Committee to present his petition to appeal on a deposit of 300 l. for costs, and when the case was called a discussion arose whether an action commenced against one of the judges in the same matter had been discontinued, or whether another action against other judges was intended. The appellant had been committed by the Supreme Civil Court for contempt in publishing certain articles in his newspaper, and the object of the present application was to obtain a revival of that judgment, although the term of his imprisonment had long expired. A point was raised whether an undertaking should be given, if the Application were heard, that no action would be brought against the judges of the court. Their Lordships consulted thereon, and it was announced by Lord Chelmsford that their Lordships would not impose terms, but proceed to hear the application as if the Solicitor-General was moving to rescind the order for leave to appeal, and for that purpose one counsel on each side would be sufficient. Their Lordships would go into the subject matter, if necessary, after the preliminary question was decided.
  The Solicitor-General urged that the commitment for contempt, being by a court of record, was good, as it did not come within the three exceptions allowed in case of appeal; that the complaint did not appear; that the punishment was not such as could be imposed; and that it was not an inappropriate punishment. He cited various authorities in support of his argument.
   Mr. Coleridge contended that the Supreme Court of Civil Justice in British Guiana was not a court of record, and had no right to commit for contempt for any publication or proceeding outside the court. No doubt it could commit for misconduct within the court, as every tribunal has an undoubted right to preserve order.   
  Lord Chelmsford instanced the Court of Queen's Bench and a police-court. It was established by cases that the Court of Queen's Bench could commit for contempt, as it was a court of record; but a police-court could not commit for anything done in reference thereto outside the court. That was the distinction between a court of record and that which was not a court of record.
  Lord Justice Wood sad some of the cases had been referred to the Judicial Committee by the Crown on petition being presented.
  Mr. Coleridge maintained that the courts in British Guiana were under the Dutch Roman law, and argued from Orders in Council and Ordinances that, although the Criminal Court was expressly stated to be a court of record, yet the Supreme Civil Court was not a court of record, and had no npower to commit for contempt by a proceeding outside the court. It had power to enforce its own rules, but not to exercise the power it had done in this case. A Dutch court under the old law was similar to a court of arbitration, which some people in England desired to see established. The Civil Court had not been made a court of record by prescription or by Act of Parliament.
  Lord Chelmsford observed that the Court of Chancery was not a court of record on the equity side, but only on the common law side.
  Mr. Coleridge submitted that there was no incident connected with the Court of Civil Justice in British Guiana that could in any way make a court of record. There was no writ of habeas corpus in the colonies, and it would, indeed become a very serious matter that judges in the courts of the colonies could commit illegally and there was no remedy provided; and that would be, in fact, the case if their Lordships held that the appellant had no right to appeal and bring the whole matter of his commitment before them.
  Sir J. Colville asked the learned counsel whether he meant that in all the colonies there was no power similar to a writ of Habeas Corpus.
  Mr. Coleridge read from a Parliamentary document that in the colonies there was no power similar to a writ of Habeas Corpus. He contended that the Court of British Guiana had no jurisdiction to commit, and therefore Mr. M'Dermott had a right to appear and to have the orders made against him reversed. When he entered into the other question he would show their Lordships the nature of the proceedings taken against him; but on this preliminary subject, which their Lordships had wished to be argued, he had to submit that it was not a court of record.
  The Solicitor-General, in reply, showed from an ordinance of 1846, which declared the Criminal Court to be a Court of Record; that in the same year another ordinance gave parties in all civil suits the right to have a jury, and gave a trial at bar. Every circumstance connected with the courts proved the proposition that it was a court of record.   
  Their Lordships deliberated within closed doors.
  Lord Chelmsford, on the re-admission of the public, gave the judgment of the Committee on the preliminary point. In this case an application had been made ex parte for leave to appeal, and leave was given without prejudice to their competency to entertain an appeal from an order of a court of record. It was quite clear to their Lordships that the respondents might have applied to them to rescind the leave, which had been given on the condition mentioned, and, therefore, the present question was whether the Court should rescind the order made.
  His Lordship proceeded to consider the question of whether the Supreme Civil Court of British Guiana was a court of record. The ordinance referred to in the case was tantamount to an Act of Parliament, and the question was whether it did not establish it to be a court of record. The Order in Council in June, 1831, and other matters, were referred to, and Lord Chelmsford said their Lordships were clearly of opinion that it was established a court of record by that which was tantamount to an Act of Parliament. His Lordship went over the several cases cited and held that there was nothing on the face of the present one as to the contempt or the punishment that rendered it bad. In some of the cases cited the petitions had gone to the Judicial Committee though the Secretary of State, and they had advised Her Majesty on the questions raised.   After going through the cases, his Lordship said the Committee entertained no doubt that leave to appeal ought not to be granted, and, without going into the subject of the libel as alleged, the present application to appeal would be dismissed, and dismissed with costs.
  Mr. Coleridge, on the subject of costs, read an extract from the judgment of Lord Justice Turner when leave was given, and he apprehended that there were no directions as to costs.
  The Registrar, (Mr. Reeve) said 300 l. had been deposited to abide the costs of the appeal.
  The Solicitor-General observed that the judges of the court had been made the respondents.
  Lord Chelmsford said there was nothing in the case to take it out of the common rule. It was an ex parte application for leave to appeal. That application had been opposed, and the Court had dismissed it with costs. Perhaps the better form would be that the order for leave to appeal be rescinded with costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School