THE MOUAT CASE.

Auckland Star, Volume LVI, Issue 246, 17 October 1925, Page 11

THE MOUAT CASE.

CHARGE OF CONTEMPT. ON QUESTION OF COMMENT. COURT RESERVES DECISION. (By Telogrnnh.—Press Association i WELLINGTON, Friday. The Court of Appeal was engaged today hearing a motion by the AttorneyGeneral, Sir Francis Bell, to attach Thomas Edward Robson, of Addington, Cliristchurcli, and commit him to prison for publishing in tbe Christchurch "Star" in August last certain matter in relation to one, Lucy Prosser, a witness in the Mouat case, calculated to prejudice or interfere with the clue administration of justice. The matter is as follows:—

"Judge, jury and newspaper. Mouat trial incident. Improper paragraph. Be fore proceedings at the trial of Frederick Peter Mouat were opened to-day Mr. Justice Eecrl. addressing- tho foreman of the jury, said: 'It is only right to say that my attention has been drawn to a paragraph in one of the evening newspapers yesterday. I don't know if any juryman has seen it, but it is a most improper one, and one that might influence some juryman against an accused person. It is a most serious thing for a newspaper to publish anything like that in the middle of any trial, particularly in a trial where a man is being tried for his life. A paragraph such as that might have the effect of influencing jurymen. Fortunately, iv New Zealand respectable newspapers do not as a rule do that sort of tiling. We don't want trial by newspapers such as there is in America. I trust that you will discard any influence the paragraph may have had on your mind.' The paragraph to which his Honour takes exception appeared in our evening contemporary. It was to the effect that one witness. Mrs. Lucy Prosser, while speaking of her knowledge of the Monats, spared many quick smiles for Mouat."

Arthur Davis Dunkley, publisher of the Christchurch "Sun," was similarly charged with contempt in respect of a paragraph reading as follows: "The last person who saw Mouat and his wife in company was Mrs. Lucy Prosser, at whose bouse, 31, Beckford Street, St. Martins, the Mouats attended a par,ty on the evening of February 19. As she spoke of her knowledge of the Mouats her gaze alternated between the Crown prosecutor and the clock. From under her brown hat she spared many quick smiles for Mouat. During an interval when clothes were being sought in trunks she gave each juryman seaching scrutiny."

The Attorney-General, Sir Francis Bell, and the Solicitor-General, Mr. A. Fair, K.C., appeared for tho Crown, Mr. Gresson and Mr. Hutchison for the "Sun," and Mr. Uphara for the "Star."

Case For the Crown. The Attorney-General said the matter had been brought before the Court by direction of the Judge, and after the papers had been laid before the law officers of the Crown. The paragraph, "Smiles for Mouat," was considered a grave interference with a criminal trial.

The comment was more than a suggestion that the witness was favourable to the prisoner. That was the obvious meaning of the paragraph. The smile was a fact that evidenced that the witness had a biased view either for the Crown or for prisoner.

"We are all apt to be led away by the well-known, legal principle that a Judge may form his opinion of witness' veracity from his conduct in the box," said the Attorney-General. He cited the famous recent English case of Hobbs, a notorious swindler, where it was said that "it is no offence to publish a full account of Court proceedings, but where matter is published which prejudices, or tends to prejudice, a fair trial, then it is an offence."

The Attorney-General submitted that if the paragraph was comment, then it was contempt of Court. If it was not comment, then their case must fail. If it was comment that was likely in any way to prejudice the case of either party to any extent in the eyes of the jury, then it amounted to contempt of Court. If the truth were told, and that truth amounted to comment, then that comment was prohibited, and the sooner the newspapers knew of it the better. Case For the Defence. Mr. Gresson said the defence was based on two grounds: (1) The courts sit with open doors, and the newspapers have a right to publish a fair and accurate report of what takes place. (2) The right to be tried by the regular tribunals of the land, and not exceptional summary tribunals. The Attorney-General relied on the fact that although one could give a fair and accurate account of proceedings, as soon as anything in the nature of comment occurred it was barred immediately, whether truth or not. The fact that witness smiled at prisoner was merely a statement of fact. If the paper published the fact that witness, during her evidence, shook her fist at prisoner, that as clearly would be a statement of fact, yet undoubtedly a newspaper had a perfect right to publish the latter statement, and both were the same. The fact that witness smiled was a fact of which the jury should be made aware, whether they became aware through counsel, Judge, their own observance, or through the newspapers. Suppose witness turned round and said to prisoner: "You're a liar and a rogiie," without doubt that would be legally reportable. There was no doubt a smile was a fact, and it was exceedingly difficult to draw the line between fact and comment. Mr. Justice Reed stated that there was grave danger in this case that prisoner might be wrongly convicted and that published statements would affect the verdict of tbe jury. Mr. Gresson: If the report of the case is a fair and accurate report of the case then, even although the statements show that witness is biased, the publication is quite legal and does not amount to contempt of Court. Objection to Procedure. Counsel proceeded to argue the second point of his defence, that this method of summary procedure by motion was discretionary, and that in this case the Mouat trial being dead and there being nothing to be gained by such procedure, defendants should have been left to stand their trial by jury under the Crimes Act. If the Court found the "Sun" guilty of contempt then he would like to express the "Sun's" regret for what had occurred. He wished to state that if the publication was regarded as contempt then it was quite inadvertently published, and the management of the "Sun" had asked him to express his regret. Mr. Upton, for the "Star," submitted that the offence alleged against it was of a different nature from that alleged against the "Sun." It had to be assumed that when the Judge on tbe morning of August 28 remarked on the offending paragraph, he wished what he had said to

be made public. As the Judge did not expressly state what was wrong with the paragraph the "Star" had considered it necessary to put in an explanatory note about it. The evil the Judge complained about was the publication of matter during the course of the trial which might possibly influence the jury at the time. When tho explanatory note was published by the "Star" there was no opportunity of that paper coming before the notico of the jury until after its verdict had been given, therefore the evil of which the Judge complained did not exist in the case of the "Star." If the Court found the "Star" had committed contempt, he was authorised to express regret. Mr. Fair, in reply, said that counsel for the defence were relying on lack of intent to commit contempt and that in such a case as this it was perfectly clear there was no intent to commit crime. The Court was a much better tribunal to determine the effect of such a statement than a common jury would be. Decision was reserved.'