APPEAL FAILS.

Press, Volume LXV, Issue 19612, 7 May 1929, Page 13

APPEAL FAILS.

** SAMOA GUARDIAN " CASE. HIGH COURT'S DECISION' UPHELD. ITHE PRESS Special Serrice.J WELLINGTON, May 6. Judgment has been delivered by Mr Justice Ostler in the appeal case of the Samoa Guardian Newspaper and Printing Company, Ltd., and Wilhara Tarr, the editor of the newspaper, against Alfred McCarthy, of Apia. Judge of the High Court and Crown Solicitor. The appeal was ironi the decision of the High Court of Western Samoa in awarding Judge McCarthy £IOO damages for libel. The facts of the case as outlined in the judgment wvre that in February and March,. 1928, a part of the population of Samoa was m a state of political unrest, and the Legislative Council of Samoa had passed an ordinance empowering the Administrator to declare areas within which the holding of Native meetings was forbidden without the consent of the Commissioner of Police. Tt seemed that there was an understanding between the Administrator and the Man that after th=e liberation of certain prisoners they were to be at liberty to hold a meeting to discuss points submitted by him. On the morning of March Bth, the respondent, who was Acting-Commis-sioner of Police and Prisons, heard that a meeting of the Mau was to be held in a "disturbed area." lie vent to Tamasese, a high Nativo chief and a prominent member of the Mau, who had been spokesman for the prisoners, and warned him not to hold the meeting, Tamasese did not mention that a meeting had been authorised and the respondent was unaware of the understanding. Tamasese attended the meeting and the respondent at the time thought he had done so in defiance of the warning. Two unsuccessful attempts were made to arrest Tamasese, and on March 9th fhe respondent went to his house with an interpreter.

A report purporting to be an accurate account of what was said by the respondent appeared in the "Samoa Guardian" on March 15th, and the libel sued on was contained m that report and a leading article in the same issue. The headings were "Spectacular Police Stunt," "Tamasese's Arrest," "Declared to be a Mistake." and there followed a passage to the effect that the- respondent had stated that Tamasese's attempted arrest had been a mistake. He had expressed regret at the happening and said that it arose over a misunderstanding. The Judge who tried the case decided that the words were false and defamatory of the respondent in his office as Acting-Commissioner of Police, and gave judgment against the appellants. Regarding the first question for decision, whether the words complained of were an accurate report of what the respondent said to Tamasese, ms Honour held that the report was false in stating that the respondent said theYe had been a mistake and expressed regret. The next question was whether the words were defamatory. His Honour said he could not agree that they were not capable of a defamatory meaning. It had been strongly urged that a false report of an admission of a mistake made by the respondent could not be defamatory. In his Honour's opinion, however, such a false report would have a tendency to disparage the respondent and bring him into contempt. It would show that, he was quite, unfit for the responsible position he held. There was aii incipient rebellion against established authority which had almost come to a head. Warships were in the harbour, and armed troops were ashore to keep the peace. . There were frequent rumours of war parties of Natives being about to attack Apia. As was said by the Judge in the Court below: "The arrest in the circumstances of the time was a step requiring the most careful consideration of pros and cons. It was a measure in which a large force of men were to he employed and it was likely to involve most serious consequences. If there Was any possibility of its being a mistake it ought not to have been attempted at all. It was a momentous action to take. It called for decision in embarking on it and a fixed determination to see it through. The view of a reasonable man, understanding from the 'Guardian' that the plaintiff had admitted no later than nest morning that be had made a mistake in attempting it, and that he regretted it, would undoubtedly be that the plaintiff was not equal to the occasion, that he acted foolishly and rashly in making the attempt and vacillatingly and almost abjectly in regretting it to Tamasese when he failed."

His Honour concluded by stating that not only were the words used capable of being understood by reasonable men in a sense defamatory of the respondent, but that was precisely the sense in which they would be understood by them. The appeal "was dismissed with 25 guineas cost and disbursements.