THE CHIEF JUSTICE.
Observer, Rōrahi XXXIV, Putanga 9, 8 Whiringa-ā-rangi 1913, Page 4
THE CHIEF JUSTICE.
His Honour the Chief Justice stated that the issue of the "Observer" of September 6th contained a cartoon holding up His Honour Mr Justice Edwards to unmerited calumny and abuse. The applications to i this court were for the exercise of the. court's summary jurisdiction to commit the proprietors. • • "That the offence : . so -far as the cartoon is concerned, is a .gross one cannot be denied;' : said- the Chief Justice. "The leading article of the paper dealing with the subject matter of the cartoon cannot, - however; be deemed objectionable. It is a criticism which, if made bona fide, cannot be challenged as illegal or improper. The cartoon, though it may not mean'what the Solicitor-General urged it meant, is, from my point of view, indefensible. It purports to deal with the conduct of the learned judge in a divorce suit of Pat- , erson v. Paterson and Kronfield, and it charges His Honour with bias to- ' wards the respondent. At the time the , cartoon appeared the trial of the ac- ■ tion was over. Judgment had been de- . livered in favour of the respondent , and co-respondent, and no new trial j had been moved for. The proceedings ( in the suit had ended. s "Several interesting questions had ! been raised. First, it had been said J that this kind of contempt—if it ever was contempt at common law to libel a judge—had been abolished by section 5 of the Crimes Act, 1908. That section was as follows: 'Every one who is a party to any offence shall be pro- < ceeded against tinder some provision of ' this Act, or under some provision _of ] some statute not inconsistent herewith : and not repealed, and shall not be pro- ' ceeded against at common law.' The * definition of 'offence' in- section 2 was ' as follows: '"Offence" includes any i act or omission for which anyone can j be punished, either on indictment or * summary ' process.' l "If this contention is correct, it will < mean that alPi criminal contempt is i abolished; the only contempt remain- 1 ing would be civil contempt, which the ..< rules of civil procedure provide, for. £ It is plain, however, that the Legis- ( lature has assumed that the Supreme c
Court has still left to it the right to punish for. the offence called contempt and to deal summarily with contempts. This is amply shown by a reference to section 432 of the Crimes Act, 1908, section 65 of the Divorce and Matrimonial Causes Act, 1908, and section 15 of the Evidence Act, 1908- Further, the Legislature has made provisions for the punishment of contempts in courts that are not common law courts, bu!t statutory courts. The jurisdiction of the Supreme Court is very extensive. It has all the jurisdiction that the Supreme Court had before the passing of the Judicature Act, 1908." His Honour quoted sections 3, 4 and 5 of the Supreme Court Act, 1860, defining the powers of the court in. New Zealand. Section 16 of the Supreme Court Act, 1882, continued that jurisdiction and conferred on the court judicial jurisdiction which might be necessary to administer the laws of New Zealand. This section was now section 16 of the Judicature Act, 1908. In His Honour's opinion, the Legislature had, by the above provisions, conferred upon the Supreme Court jurisdiction to punish for contempt; and the enacting of section 5 of the Crimes Act 1908, had not deprived the bupreme Court of this jurisdiction if it was enjoyed. The Crimes Act, indeed, assumed that there is such a jurisdiction. _ "There are broadly two kinds ot judicial contempt: (1) Contempts in facie of the court; (2) those ex facie of the court. There are various divisions under the second class; but in both classes before an act can be deemed a contempt of court, it must lead, or be likely to lead, to an interference with the due administration ot justice. Criminal contempt of the second class occurs, for instance, where there is published prior to a trial or during a trial comment regarding the case to be tried. There are many examples of this class of contempts in the books. It is clear that the cartoon in the present case cannot be brought under this head, for it deals with the conduct of the learned judge in a divorce suit that had concluded and in which no attempt to obtain a new trial or other relief had. been made by the petitioner by motion, or otherwise. There may, however, be another kind of contempt, viz., some action taken that will interfere with the general administration of justice where no particular case is pending. It was sought to bring this cartoon into that class of contempts. To do so it must be shown that the due administration of justice must be in some way impeded, or, at all events, likely to be impeded." ■ ' , It was on this ground that the muchcited case of Regma v. Gray was decided, said His Honour, who went on to explain that in that case, in which a judge was libelled while still engaged in holding the assizes at Birmingham, what was complained of was not a comment on the conduct of a judge in a special case which had concluded, but it was an attack made on a judge regarding a general statement he had made at the hearing of a case at the assizes, and it questioned his judicial ability to perform his duties. The question whether or not—as was raised in the present case—" a contempt had been committed and the right procedure adopted," was not raised or argued by counsel for Gray. The Lord Chief Justice, Lord Russell of Killowen. who delivered the judgment of
the court, said, inter aiia: "It is not too much, to say that it is an article of scurrilous abuse of a judge in his character of a judge—scurrilous abuse in reference to the conduct of a judge while sitting under the Queen's commission, and scurrilous abuse published in a newspaper in the town in which he was-still sitting under the Queen's commission." It was important to notice these observations in the judg, ment. That judgment went on further to declare that reasonable criticism was not a contempt. "It is, however, not enough that a judge is libelled or abused," said His Honour. "It is necessary before euch libel or abuse is deemed contempt of court that it tends to interfere with the administration of justice. This is clear from two cases in the Privy Council. In the matter of a special reference from the Bahama Islands (1893), A.0., 138, it was alleged that a certain letter was a contempt. It contained sarcastic references to a girt of pineapples, and the following phrase occurred in the letter: ' Now, just suppose we had a fool for Chief Justice,, , etc. ,. His Honour remarked that the case was heard by no less than' eleven members of the Privy Council—perhaps no abler bench had ever assisted there. In the finding it was assumed that the letter was a libel, but it was not a contempt, as it was not " in the circumstances calculated to interfere with the course of justice or the due administration of the law." The other Privy Council case cited was that of McLeod v. St. Aubyn, the charge being the publication of scandalous matter respecting the Supreme Court of St. Vincent after adjudication as well as pending a case before it. The charge in the letters, said His Honour, was as grave, if not graver, than the charge the present cartoon was alleged to make. His Honour quoted two sentences, as follows: —"Hβ hob-nobs with two or three of the barristers, winks significantly at them in court, and in the trial of cases he has cast to the winds the ordinary principles of justice and fair play which require a judge to keep even the scales of justice between parties." "At the recent sessions Mr St. Aubyn's action on the bench was most extraordinary, more befitting a prosecuting counsel bent upon securing a conviction than a judge." In the judgment in that case it was laid down that the power summarily to commit for contempt of court was considered necessary for the proper administration of justice. It was not to be used for the vindication of the judge as a person. He must resort to action for libel or criminal information. Committal for contempt of court was a weapon to be used sparingly, and always with reference to the interests of the administration of justice. Hence, when a trial had taken place and the case was over, the judge or the jury were given over to criticism. It was also stated in that judgment: "It is a summary process, and should be used only from a sense of duty and under the pressure of public necessity, for there can be no landmarks pointing out the boundaries in all cases. Committals for contempt of court by scandalising the court itself have become obsolete in this country. Courts are satisfied to leave to public opinion attacKs or comments derogatory or scandalous to them." It was true, remarked the Chief Justice, that in that case Their Lordships held that McLeod had innocently published the libel, but this judgment was important as reiterating the opinion expressed in the Bahama case.
The question, therefore, that this court had to decide was, "assuming that this cartoon is a libel, was it clearly shown that its publication is calculated" to interfere -with the due administration of justice?" In His Honour's opinion this had not been established. "The cartoon," he said, "deals with only one case. It has no reference to other cases or to the general conduct of the learned judge. The case it refers to had concluded. The criticism, however gross, is a criticism on one case only. We have no assizes: our court is ever in session for some purpose or another, and the circumstances are not, therefore, the same as in Regina v. Gray.
" Further, if a criticism is alleged to be contempt, the court would be bound, the Solicitor-General admits, —though no case was cited where such a pract.ce has been followed—to allow the person charged with the contempt to justify his criticism and to show that the comment was fair. The procedure'in a case of a contempt or-other summary proceeding is hardly suitable for the conduct of inquiries such asthese.
" I em of .opinion that, if this court were to hold that this cartoon is under the circumstances a contempt of court, it would be deciding the matter in a way that would conflict with the lavas laid down by the Privy Council;, and I am, therefore, of opinion that both motions must be dismissed."