From the Irish News and Belfast Morning News, 3 December 1908:
“A CORK LAWSUIT
Marked by a Sensational Incident
ALLEGED OUTSIDE INTERFERENCE
Stranger Stated to Have Accosted Juryman in the Central Hall: Legal Gentleman Involved Also
In the Nisi Prius Court yesterday, before Mr Justice Wright and a city common jury, the probate suit, David Regan and Mary Anne Browne v Daniel Browne was tried. The plaintiffs, as executors of the will, dated February 1908, of David Browne, late of Bridge Street, Mallow, farmer, sought to prove that will. The will was contested by the defendant, who was a brother of the testator, on the ground that it was not executed according to law, that the testator had not testamentary capacity, and that he did not know and approve of the contents of the document.
Messrs. PD Fleming KC; AM Sullivan KC; and George McSweeney (instructed by Mr James Nunan) appeared for the plaintiffs.
Messrs P Lynch KC, G Green KC and WD Harbinson (instructed by Mr Edward Fitzgerald) appeared for the defendant.
The case was first tried in June last, when the jury were unable to agree to a verdict. The examination of witnesses for the plaintiffs was continued yesterday. Mr Richard Rice, solicitor, Fermoy, said that he had acted for the deceased testator. The deceased complained about having had a trick played on him by his brother, Daniel, about land… Daniel was fined £5 for assault on the deceased… Mr Rice said that he tried to reconcile the brothers after these actions, and he thought he had succeeded.
Mrs Riordan, the owner of a boarding house at Mallow, gave evidence to show that the testator had lived in her house for some time before his death. He drank very heavily. He had to have egg and whiskey before breakfast, and she placed a little bottle of whiskey and water under his pillow at night, because she knew he could not do without it.
Mr Justice Wright – Was it always empty in the morning? Oh, indeed it was. (Laughter)….
Rev Richard Ahern said that he had been stationed at Mallow for some time, and that he knew the deceased for about eight months before his death… He noticed that he was losing in physical condition, and he smelled as if he hadn’t confined his drink to Spa water.
Mr Justice Wright – What is that?
Mr Fleming KC – There is a song which says:
‘The finest drink you ever saw
Is whiskey mixed with Mallow Spa.’
At the conclusion of the witness’s evidence, Mr Sullivan KC asked the judge to order the jury to retire to their room for a few minutes, as he had something to bring before his lordship which the jury should not hear for the moment.
The jury having retired, Mr Sullivan said that the following facts had been communicated to him. After the adjournment yesterday, Father Ahern noticed and overheard a conversation between a professional man and a stranger, and the conversation was as to whether the stranger knew any member of the jury. The stranger answered that he knew one, and he mentioned the name of that one. The stranger was asked if he had any influence with the juror that he knew. The stranger said he had some influence, and that he would have a chat with him that night or this morning. The next proceeding was that the stranger went to the member of the jury and unquestionably had a conversation with him, and another interview this morning. The stranger and the juryman were seen in conversation in the hall of the Four Courts that morning. These facts having been brought to his (counsel’s) knowledge, he thought it his duty to inform the judge before proceeding further.
Mr Justice Wright – Quite right. The question is what I ought to do.
Mr Sullivan – That is what we feel.
Mr Justice Wright – I can take no action in the matter unless I have the facts proved by witness or by affidavit.
Mr Sullivan – What we feel is that advocacy is paralysed by this sort of thing.
The Rev Father Ahern was re-called to the witness box, and in reply to Mr Sullivan, he said that at the adjournment of the Court on the previous day he was sitting near a professional gentleman engaged in the case. He heard that gentleman speak to a third person.
Mr Justice Wright – I don’t ask you the name of the professional gentleman, but do you know him?
I know him by appearance and can identify him.
Mr Justice Wright – Do you mean a solicitor. I think so, my lord; perhaps something more than a solicitor.
Mr Sullivan – Is he a counsellor? Yes
Mr Justice Wright – Was this in Court?
Rev Ahern – Yes, quite close to the jury box.
Mr Sullivan – Will you tell us what he said to the third person?
Rev Ahern – The third person, of whom I knew nothing, was asked whether he knew any of them. There was no distinct reference made to the jury. The third person said ‘Yes, there is one.’ The name of the juryman was mentioned, but he (witness) did not catch it. The next question was ‘Have you any influence with him?’ and the answer was ‘Yes, I shall have a chat with him this evening.’
Rev Ahern further stated that he saw the stranger afterwards talking to a person in the Central Hall, who, he was told, was a member of the jury. He thought there was something wrong, and he mentioned it to Mr McSweeney.
Mr James Nunan, solicitor, said that he was brought on the scene that morning in the hall, and he saw the third person alluded to speaking to the jury. He thought of getting a policeman to arrest him, as he didn’t want a third trial of this case. He afterwards saw the man communicate with counsel, and he followed them up into the library. He got the third person’s name.
Mr DB Sullivan was next examined, and he said he saw the ‘third person’ having a long private conversation with the juror, and a certain counsel in court had five separate conversations with the man – the handyman who had interfered with that particular juryman.
Mr Justice Wright said he was afraid that incidents like this were too common in the trials of actions in Dublin.
Mr Sullivan – It is gnawing the vitals of our profession.
Mr Justice Wright – it is an interference with the course of justice – a criminal offence. If this matter is brought before the Court on affidavit, or before me, a proper order can be made, so that the thing can be investigated and, if proved, properly punished. I think counsel is right in bringing the matter before the Court.
Mr Lynch KC – If any juror has been interfered with let him be discharged, and we will go on with eleven.
Mr E Fitzgerald, solicitor – As the name ‘solicitors’ has been mentioned, I may say, my lord, I knew nothing about this incident till this moment.
Mr Justice Wright – I never suspected you. I knew you would not do it.
Mr Fleming KC – Mr Fitzgerald had nothing whatever to do with it.
Mr Green KC – The circumstances seem to point to us. It is very awkward.
Mr Sullivan KC – I acquit my two learned friends of it.
The jury was then called into court, and the judge informed them of what had passed in their absence. He asked them if they were prepared to say that they would try the case on the evidence given in court. Almost all the jurors said they were.
The trial then proceeded with the full jury. At the conclusion of the evidence for the defence, the Court adjourned.”
If neither Mr Green KC nor Mr Fleming KC was the barrister for the defendant who sought to influence the jury, this left us with junior counsel Mr WD Harbinson.
The following day’s events in court are recounted in the Belfast News-Letter of 4 December 1908:
“THE ALLEGED TAMPERING WITH A JUROR
A Personal Explanation
Rogan and another v Browne
The hearing was resumed of this action to establish the will of the late David Browne, of Mallow, farmer, who died on 6th April last… At the sitting of the Court, one of the jury rose in his place and said that he and the other members of the jury were greatly shocked when they saw what had occurred in court on the previous day in their absence. They had conferred with each other about it that morning, and had agreed that in justice to themselves, and in the interests of all concerned – if it was feasible – the case might be decided by eleven jurors, and that the juror who had been tampered with – whether knowingly or not – might be withdrawn. All the jury felt that the incident reflected seriously upon them, and that they ought not to lie under such a charge.
Mr Sullivan KC – We are quite content to go on with the full twelve jurors.
Mr Lynch KC – So far as we are concerned, we know nothing about the allegation that has been made. We know nothing about it.
Mr Sullivan – There is no reflection on the jury.
The Juror – The name of the juror who has been spoken to is known to both sides.
Counsel on both sides disclaimed this.
Mr Justice Wright – It certainly was not mentioned in court.
The Juror – That juror, if he has been influenced by the person who spoke to him, might hold out against the other eleven.
Mr Justice Wright – All I know is that there is evidence given on one side, and one side only, that a person who had no connection with the case was seen speaking to a person who is stated to be a member of the jury. Whether that juror has been influenced by him I don’t know, nor does any one even suggest that he has been. Both sides appear to be willing to believe that the juror resisted the attempt to influence him.
Mr Lynch KC – If they knew the name of the person who spoke to the juror, they ought to name him.
Mr Justice Wright – I am concerned for the present only with the trial of this action, and when this is disposed of the matter will be investigated in full. And now the question remains – is the case to be tried out by eleven or twelve jurors? I assume that if any attempt was made to influence a juror that attempt failed.
Both sides then said they were willing to go on with the full jury.
Mr Harbinson – Perhaps your lordship would hear –
Mr Justice Wright – I will not. The case will go on. I believe the incident of yesterday will not rest where it is.
Mr Greene – The position of my friend and myself in the matter is that we have not the slightest idea what juryman it is.
Mr Justice Wright – I believe you have not.
The trial then proceeded, and Mr Greene addressed the jury on the evidence for the defendant. Mr Sullivan replied for the plaintiffs.
When the jury had retired to consider their verdict, Mr WD Harbinson, one of the counsel involved in the case, rose, and addressing Mr Justice Wright, said now that the jury had retired perhaps his Lordship would bear with him one moment in order that he might make a personal explanation, because he thought that owing to what occurred on the previous day, and the reports of it that had appeared in the papers, he was clearly pointed out as the professional man who was alleged to have been guilty of seeking to influence a juror. He desired to say that there was not one atom of truth in the suggestion. Neither directly, nor indirectly did he try, either personally or through any agent, to operate on the mind of any single juror, or to endeavour to bring any influence to bear upon him to find a verdict one way or another.
It was quite true, as Rev. Mr Ahern stated, that the Reverend might have overheard a conversation. The conversation was this. He (Mr Harbinson) had been engaged in a criminal proceeding the previous afternoon, defending twenty-five prisoners in Green Street. Mr Healy was to be his leading counsel, and had just been engaged to act on the 28th ult. In that capacity. On the evening of the 1st instant, Mr Healy informed his solicitor, Mr William Dwyer, that he would be unable to act, and Mr Dwyer came down to him (Mr Harbinson) while he was sitting in court, and told him what Mr Healy said, and also told him some of the instructions given by Mr Healy for his (Mr Harbinson’s guidance). Undoubtedly the question of the jury panel at Green Street was discussed before Rev. Mr Ahern openly there between Mr Dwyer and himself. There was no secrecy or concealment about it. It was done purely and simply with reference to the case pending the previous day and tried the previous day, and the result of which appeared in the papers. At the time he was speaking to Mr Dwyer he had no knowledge that Mr Dwyer was acquainted with any single member of the jury. What he was saying to Mr Dwyer, and what Mr Dwyer was saying to him had purely and solely referenced the case pending, and that had been heard the previous day.
It was quite true that the next morning Mr Dwyer came into court with him and took him up to the library, because at the last moment it was announced that a bill had been found in the case – they originally thought it was not to be heard until Thursday or Friday. The announcement was made to him that it was to be heard at twelve o’clock the previous day, and it was extremely urgent that he should leave court and go up to Green Street as counsel for the prisoners. That would explain why he had been with Mr Dwyer. Those were the facts. From beginning to end, neither directly nor indirectly did he attempt to influence a juror. Their conversation had reference solely to the panel of the jury that was to try the case the previous day.
Mr Justice Wright said a charge had been made – a very ugly charge. It was stated before him by, he thought, Rev. Mr Ahern that the person who was implicated in this very discreditable thing, if the thing occurred, was a counsel. And as Mr Harbinson had taken that on himself, it was only ordinary common sense to allow him to give an explanation. So far as he was concerned with the incident, he did not think that he had to pursue it any further than this – to see that it did not in any way interfere with the fair trial of the action. It was only common justice to Mr Harbinson, as the person affected, that he should be allowed to make an explanation to the public, at least as to the charges against him. But if the matter was to go further – as to which he expressed no opinion – it must be tried out on oath.
Mr Harbinson – My Lord, I court the fullest explanation as far as I am concerned.
Mr Justice Wright – If the explanation given is true, it disposes of the whole thing.
Mr Harbinson – I have nothing to conceal, and I am not afraid of any investigation which may take place.
Mr Justice Wright – I hope the ventilation of the matter may clear the air a bit.
The jury found in favour of the will, holding that it had been executed in pursuance of the statute, that the testator was of sound mind and understanding, that he knew and approved of its contents, and that its execution was not obtained by undue influence.”
WD Harbinson BL subsequently acquired some fame acting as counsel for the third-class passengers in the enquiry into the sinking of the Titanic. His nerves had probably just recovered from the Cork case above when World War One broke out. He subsequently enlisted, later retired as a Lieutenant-Colonel, and was last heard of in the 1930s, residing in Jersey. His story stands as a warning to counsel about the dangers of eavesdroppers misunderstanding what you are saying sotto voce in court.
The real villain of the piece may well have been Tim Healy KC, persistently guilty of the crime of leaving his junior in the lurch at the last minute! One counsel who could certainly have prosecuted him for this was Patrick Pearse BL – read about how he had to step in for Mr Healy here.