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Colonial Cases

Rainy v. Carr and Armstrong, 1853

[contempt of court]

Rainy v. Carr and Armstrong

Judicial Committee of the Privy Counci
Source: The Times, 5 February, 1853

Friday, Feb.  4.
(Before Lord Justice Knight Bruce, Lord Justice Turner, Dr. Lushington, Sir Edward Ryan, and Mr. Justice Patteson.)
  A petition was presented to their Lordships by William Rainy, Esq., an advocate and attorney of Her Majesty's colony of Sierra Leone, alleging that Sir John Carr, the Chief Justice of that colony, and Mr. Armstrong, the Assistant-Judge, had improperly imposed upon him several fines for his asserted contempt of Court while conducting a case pending before it. Their Lordships, in the first instance, dismissed the petition, but, supplication being again made to Her Majesty, she directed an investigation to be made of the whole of the circumstances. Mr. Rainy has since given in affidavits in support of his petition.
  Mr. W. H. Watson now applied to their Lordships, on behalf of the respondents, to grant them time to answer those affidavits, which at present they had had no opportunity of seeing, and which contained statements necessary to be answered or explained.
  Mr. Whately opposed the motion, on the ground that they did not vary the case as set up in the petition and the answer thereto.
  Their Lordships were of opinion that time ought to be afforded, and accordingly granted the motion.

Source: The Times, 4 July, 1853

  In this case a petition was presented to their Lordships by Mr. William Rainy, an advocate and attorney of Her Majesty's colony of Sierra Leone, under the following peculiar circumstances.  In order to make the case intelligible it is necessary to state the principal averments contained in the petition and answer.
   The petition alleged that Mr. Rainy was admitted a practitioner of the courts of justice in Sierra Leone in 1849; that in June, 1851, he was retained, in his character of advocate and attorney, by Mr. Patnelli, to commence and prosecute an action against the Hon. Charles Heddle, a merchant of the colony, a member of Her  Majesty's Council, and an assistant-judge of the courts, upon a special contract for wages due to Mr. Patnelli, as the factor of Mr. Heddle; that, the defendant having pleaded to the action, it was tried in the Recorder's Court of  Freetown on the 17th and the six following days in September, 1851, before Chief Justice Carr and the Hon. Robert Armstrong, one of the assistant judges, and a jury empanelled in the customary manner; that in the course of the trial Mr. Rainy, in his professional character, pursuant to notice given to the defendant, called for the production of books of accounts and certain other documents having reference to the matter at issue, but which the defendants refused to produce, upon which Mr. Rainy respectfully appealed to the Court to call for and enforce their production, but the Chief Justice took no notice of the application, and desired the petitioner to proceed with the case, which he did, and brought it to a close; that the advocate on the other side having addressed the jury, he began to examine his witnesses, in the course of which he proceeded to put irregular and leading questions to him, whereupon the petitioner objected,  but the Chief Justice, in an angry and violent tone, told him to sit down, which he was compelled to do; that the petitioner, having cross-examined on fresh matter, to which the petitioner objected, but the Chief Justice, in a manner which the petitioner felt was both uncourteous and arbitrary, desired the petitioner to sit down and be silent, which he was compelled to do to the great injury of his client's case; that shortly after this circumstance had taken place, the books of the plaintiff were called for, but the petitioner declined to produce them unless the defendant's books were also produced, whereupon the Chief Justice immediately interposed, and asked the petitioner, in a loud and angry tone whether he would produce the books, to which he distinctly stated that he could not give the other side such an unfair advantage; his Honour continued to put the question, and concluded by saying, "Then do I understand that you refuse to produce the books?"  that a repletion of the same matter occurred over and again in the course of the trial, and the petitioner made an effort to convince the Chief Justice that he was mistaken in his view of the law, and what the justice of the case required, but he was told by the Chief Justice "to hold his tongue, and be silent;" that the petitioner then claimed the right of advocating his client's case, and to submit such objections to the Court as he thought was tenable in law, but the Chief Justice again desired him in an angry tone "to hold his tongue, and be silent;" that the defendant's counsel then proceeded to examine his witnesses, and the petitioner having again interposed and objected to questions being put as  being irregular and inappropriate, he was again desired "to be silent and keep his seat;" but claiming and insisting on his right to interrupt the opposite counsel and prevent his putting leading questions to the witnesses, he was ordered by the Chief Justice to be fined in the sum of  20 l. for "contempt of Court;" that immediately after this fine was imposed the Chief Justice, seeming to observe that a great many persons in court felt for and sympathized  with the petitioner, remarked in a violent tone that the petitioner was acting in such a manner as to induce persons to believe that justice was not likely to be done to the petitioner's client - which the petitioner felt was the fact, , though he himself had said nothing indicative thereof  - but upon  the Chief Justice remarking he could not but assent thereto, whereupon the Chief Justice declared him guilty of "contempt of Court" and ordered him to be fined in the further sum of 50 l.; that the fine having been paid the trial of the cause proceeded; that the petitioner having, in consequence of the refusal on the part of the defend ant  to produce his books, been compelled to prove by written orders and receipts some of the matters contained in them,  the defendant's counsel proposed to produce the books, so originally called for, to displace the case of the petitioner's client, to which the petitioner objected; but the Chief Justice overruled the objection, and refused to permit the petitioner to inspect the defendant's books and the usual entries therein, having reference to the matters at issue; that the petitioner insisted he had a right to inspect those entries, but the Chief Justice became very violent and told him he would fine him if he did not sit down, and, being thus ordered, he was under the necessity of taking his seat; that Mr. Rainy said, he should tender a bill of exceptions, and immediately after entered into an altercation with the Queen's Advocate, (Mr. O'Neill) relative to the question of arbitration, when the Court ordered him to be silent, on  which Mr. Rainy observed that whenever he got up to speak he was interrupted, whereupon he was fined 10 l.; that, owing to these circumstances, the petitioner on several occasions excepted to the Chief Justice's  ruling,  but objections were frequently raised by the Chief Justice that the petitioner's written statements were incorrect and did not agree with his notes; that in consequence of the frequent observations of the Chief Justice, that the petitioner had tendered bills of exception which were incorrect, the petitioner, on the occasion of his excepting to the Chief Justice's refusal to allow the petitioner to inspect all entries in the defendant's books having reference to the matters at issue, informed the Chief Justice that, as it was a very important objection, he would reduce it into writing at once, and the same was handed to the Chief Justice, who, in a menacing tone, remarked, that "the paper contained incorrect statements, and that the Court would take notice of it;" that, accordingly, the petitioner, on the next day, when the important objection was raised by him, and overruled by the Chief Justice, declined to tender any more bills of exception, upon which he was requested to explain what he meant by asserting that he was not allowed to tender any more bills of exception, when he drew attention to what had occurred on the previous day, and submitted that it was tantamount to a refusal, and thereupon the Chief Justice fined him 50 l. for contempt of Court; that the petitioner felt deeply  grieved by these arbitrary and oppressive proceedings, not only in an a professional and pecuniary way, but - what was far more important to him - by the imputations which had been cast upon his conduct, and submitted that the orders and proceedings were wholly unwarranted, harsh, and oppressive, and were a violation of his just rights and privileges as an advocate and attorney of the courts of Sierra Leone , and tended to impair and bring into disrepute the administration of justice in that colony. The petition concluded by praying that Her Majesty would be graciously pleased to remit the fines and grant such further relief as might seem meet and proper.
  The respondents, in their answer, stated that the orders fining the appellant for contempt of Court were made by them under the following circumstance:
  That on the second day of the trial in question the Queen's Advocate opened the defendant's case, and, upon his proceeding to examine the witnesses for the defence, the appellant commenced a course of disorderly conduct, and several times rudely and boisterously interrupted the Queen's Advocate and Mr. Doogan in the examination of the witnesses, without any justifiable cause. The Court, considering these interruptions improper and calculated to withdraw the attention of the jury from the facts of the case, besides occasioning confusion in the court and preventing the Chief Justice from taking down the evidence, desired the appellant to desist from such a course of proceeding, and to submit in a proper manner any objection he had to any question put by the adverse Party; but the admonitions and warnings of the Court produced no effect upon the appellant. On the contrary, in the afternoon of the same day he became very disorderly, and hardly a question could be pout but he rudely rose up to object. From disregarding the orders and injunctions of the Court, when desired to be silent and desist from those interruptions, the appellant proceeded to reflect on the bench in language to the following effect- "That greater latitude was allowed to the Queen's Advocate than to himself in the examination of witnesses; that the Queen's Advocate had it all his own way;" - evidently with the view of leading persons to believe that the Court was indisposed to do justice to his client. The Chief Justice, considering that such conduct could not be permitted in a court pf justice, consulted with Mr. Armstrong as to the propriety of fining the appellant, but Mr. Armstrong suggested that it would be better to wait until the next day, as the appellant then appeared to be greatly excited.
  That on the following morning not a word of apology, regret, or explanation was offered by the appellant for his conduct in court on the previous day. That upon the cause being resumed he again rudely interrupted the Queen's Advocate and Mr. Doogan without any justifiable cause, and upon being admonished and desired to be silent he again, in a disrespectful manner, refused to obey the orders and injunctions of the Court, whereupon, as express warnings and admonitions from the bench had produced no effect, the respondent s felt it to be their duty to impose a fine of 20 l., on the appellant for contempt of Court. After the fine had been imposed the appellant continued to behave in a manner tending to obstruct the due course of the trial, and, perceiving the evil consequences of such conduct in a community such as Sierra Leone, the Chief Justice thought it advisable to bring distinctly to the notice of the appellant the effect and tendency of his conduct, in order that he might alter his bearing and behaviour in the court, if not intentionally and purposely adopted; the more so, as he had admitted him an attorney of the court. But, to the astonishment of the respondents, upon the Chief Justice observing, that the conduct of the appellant was calculated to lead persons to believe that justice was not likely to be done to the plaintiff, the appellant, in a manner insolent and disrespectful, and while seated in his chair and with a grinning countenance, immediately replied aloud to the statement from the Bench, "I can very well see that."
  Thereupon the Court called for an explanation or an apology, which the appellant pertinaciously refused; and the Court, considering that his conduct and bearing had been purposely adopted, and, if unchecked, was calculated to produce the most pernicious consequences in the colony, felt it to be an imperative duty to impose a further fine of 50 l.  The respondents denied that the fine of 20 l. was imposed on the appellant for objecting to any leading questions put by the opposite counsel, and alleged that the remark of the Chief Justice was not made in a violent tone, nor made immediately after the fine was imposed.  Neither of the defendants observed persons in court feeling for or sympathizing with the appellant, and they did not believe that any person who had a proper sense of what was due to a court of justice could have felt any sympathy for him when the fine was inflicted. The statements in the appellant's petition, in relation to the books of accounts of the parties to the suit were gross misrepresentation of the conduct of the Court and of the facts as they occurred. The Court, as the appellant well knew, had no power to enforce the production of the defendant's private books of account. At the opening of the court on the morning of the 20th of September the appellant voluntarily brought into court the amount of the fines imposed on him the previous day, and paid the same to the clerk of the court, telling him to count it. Subsequently to the imposition of the last of the two fines the appellant declared aloud in the court "that the Court might fine him as often as it pleased, but that he would get justice elsewhere," and continued to behave in an insolent and disrespectful manner in the court; that on the afternoon of that day the appellant commenced an altercation with the Queen's counsel alleging that he had offered to settle the action by arbitration, which had been refused, and the Chief Justice, considering it right to put an end to it, there being  no question of arbitration before the Court, mildly called out, "Mr. Rainy," with the view of gaining his attention, whereupon the appellant sharply and abruptly turned round, and, and addressing the bench, said, in a rather insolent manner and with a scornful look, "Whenever I get up to speak I am interrupted.  I am speaking to the Queen's Counsel;" on which the Court thought it their duty to impose a further fine of 10 l., that on the 24th day of September the appellant stopped in his cross-examination of a witness, and expressed himself to the Court to the effect, "that he was not allowed to tender any more bills of exceptions." As the Court had never refused any bill of exception from him, the Chief Justice requested an explanation, and inquired whether the bill of exception he referred to was the one he tendered at the opening of the Court, yesterday? The appellant replied that he would not answer the question until he was called upon by a rule to show cause. The question was repeated, and the appellant, who as an officer of the court was bound to answer, continued pertinaciously to refuse, and then took up his hat and said, "he was ready to go to gaol and put an end to the trial." The respondents felt it their duty to impose a further fine of 50 l. The allegation that the appellant was not allowed to tender bills of exceptions was wholly gratuitous and unfounded in fact, and after the occurrences to which it had reference (of which an explanation was given) he tendered other bills of exceptions, which were received by the Court.
  The answer concluded by submitting that the orders were fully justified by the conduct of the appellant, and the circumstances the respondents had mentioned.
  Mr. Whatley (with whom was Mr, Moore) appeared on behalf of Mr. Rainy, and observed, that when the case first came before their Lordships in the usual way they were of opinion that they had no jurisdiction to hear it; but the Colonial Office had requested them to take it into consideration. He submitted, upon the facts of the case, that the orders were improperly made, and that they ought to be rescinded. No one was more satisfied than himself of the respect which should be paid to a judge in the administration of justice, but, on the other hand, it was quite obvious that it was equally important that a judge should respect the character of the bar, and that they should not be curtailed in the fair exercise of their duties. His object was not so much to ask for censure on the conduct of the Chief Justice as for the re-instatement of Mr. Rainy in the position he had before occupied. That gentleman felt that he could no longer practice in the colony of which he was a native, and where he had carried on his profession without the slightest impropriety.
  The assistant-judge, Mr. Armstrong, was not a lawyer, but a merchant or tradesman; the present Chief Justice was a native of the colony, and was appointed to his high office after having been educated at the London University, in 1841. Mr. Rainy was admitted in 1849, and had practised up to the time of these proceedings with considerable success and great credit to himself. The Chief Justice had used insulting expressions to Mr. Rainy as proved by the affidavits, such as "Sit down; be silent; pray, Sir, do you understand English?" which words were not denied.
  He had also been charged with prevarication. The infliction of fines, amounting altogether to 230 l., in a colony where a practitioner could only realize about 500 l. per annum, was such an excess of authority as showed that the learned judge could not intend to do justice in the case. The contradictions given to the statements of Mr. Rainy did not come from the counsel on the other side, but from persons of a very different class, or from the Chief Justice himself.
  Mr. Watson (with whom was Mr. Lush) appeared on behalf of the respondents, and said that the charge brought against them was of a most serious character, and it was only upon the clearest evidence that their Lordships could come to the conclusion that the Chief Justice had been guilty of conduct which would render it injurious to the interests of the colony that he should continue to hold office. If their Lordships found the case of Mr. Rainy proved, it was impossible that Mr. Carr could remain Chief Justice of the colony.
  Mr. Rainy, he submitted, had been guilty of contempt of Court from the beginning to the end of the trial, to restrain which Mr. Carr, in the discharge of his duty, had thought it his duty to impose the fines inflicted. According to the affidavits produced, on the one hand, Mr. Rainy's conduct was represented as meek throughout, and, on the other, as extremely offensive. He hoped that their Lordships would be able to do, what he had been unable to effect, reconcile the statements of the respective parties, and the evidence they had produced. He considered that it was impossible for one side or the other to escape the charge of perjury and subornation of perjury.
  With reference to the fines imposed their Lordships could make no order. That was decided in the case of "Smith v. the Justices of Sierra Leone," (3 Moore, PC Cases) where a previous Chief Justice of the colony, Mr. Rankin, had disbarred Mr. Smith and fined him. Their Lordships rescinded the order, but said they could not remit the fine. Whichever party was wrong in the present case, it appeared to have arisen out of a notice to produce books, and the ignorance of Mr. Rainy as to the mode in which business was conducted in the Nisi Prius Courts of this country. With respect to the offensive expressions said to have been used by the Chief Justice to Mr. Rainy, he could not see in what other terms he could address him when he continued to interrupt the Court. Nothing could be more proper than the conduct of the learned judge with regard to the bills of exceptions. The balance of evidence was overwhelmingly in favour of the respondents, and he, therefore, prayed their Lordships to dismiss the appeal.
  Mr. Whatley having been heard in reply,
  Dr. Lushington said that, this not being a regular appeal, but a special reference by Her Majesty, the usual course had been simply to report to Her Majesty, and not to give the opinion of the judges until Her Majesty had approved of the report.

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