“Truth” Appeal Hearing Expected To End Today

Press, Volume XCVIII, Issue 29008, 24 September 1959, Page 14

“Truth” Appeal Hearing Expected To End Today

(New Zealand Press Association)

WELLINGTON, September 23.

Counsel for Truth (N.Z.) Ltd. concluded his submissions in the Court of Appeal today on alleged misdirections by the trial Judge in the libel claim brought by Philip North Holloway, Minister of Industries and Commerce. Holloway’s counsel then opened his submissions, and the hearing is expected to end tomorrow afternoon.

The Court comprises Mr Justice K. M. Gresson, Mr Justice North, and Mr Justice Cleary. Mr R. B. Cooke is appearing for the appellant, and Mr W. E. Leicester, with him Mr R. G. Collins, for Holloway.

Mr Cooke claimed that there was a misdirection by the Judge in that he directed the jury in substance that it should give a verdict against “Truth" on proof of the sense ascribed to the publication in the statement of claim.

It would, said Mr Cooke, be attributing extraordinary perceptiveness to a jury for it to have come to any other conclusion than that finding an innuendo in the statement complained of automatically meant a verdict for Holloway. Mr Justice Gresson: You claim that the direction breathes a “must” rather than a “may." Mr Conke: Yes. His Honour: New Zealand jurors are not responsive to a “must.”

“I think you are making much ado of very little,” commented Mr Justice North, as Mr Cooke continued his lubmissions. Mr Cooke claimed that in the realm of politics and political journalism things were often said that had a lesser effect than they would have in a more sedate atmosphere. So many hard knocks were given and taken that they did not have the same effect.

Return of Directors

Mr Cooke submitted that the Judge erred in directing the jury that Holloway’s explanation of the return o! directors made by the secretary of Amalgamated Commercial Trades. Ltd., in April. 1958, was that there had been some mistake about the notice, and that the jury might think this a credibl" explanation.

Mr Cooke submitted that, the alternative explanation of Holloway was not credible. In saying that it was, .he Judge made a oositive direction against “Truth’’ and did considerable damage. Mr Justice North said he considered it quite unfair to make a point like this against the trial Judge. Mr Cooke submitted that the Judge also erred by directing the jury that it was the right of gentlemen who undertake public positions, such as Ministers of the Crown, to be criticised only in a way that was not defamatory of them.

It was true, Mr Cooke said, that the Judge qualified this considerably. and it would normally be harmless. In this case, however. it could confuse the jury, because the defence had emphasised that the onus was on Holloway to prove the specific innuendo he alleged. It lost sight of the specific defamation, and could have contributed to the jury having a wrong impression. By intimating to the jury that it would probably not need to look at the exhibits the Judge had conveyed the impression that the exhibits did not matter very much. Mr Cooke said he felt the Judge had discouraged the jury from looking at them. Mr Justice Gresson: For my part, I think such discouragement is well warranted. Damages Issue The final alleged misdirection with which Mr Cooke dealt was the Judge’s suggesting to the jury that this was not a case in which the jury should seriously consider the question of contemptuous damages, because if in fact Holloway was libelled by “Truths” article, then the libel was not by any means a slight one. “A party has a right to have his case adequately put to the jury in the summing-up,” Mr Cooke said, “and, with all respect to the learned Judge, it is paying no more than lip service to that principle to suggest to the jury that, though the matter is for it, it ought not even seriously consider a question to which a major contention of one party relates.

‘‘Further, the reason the Judge gave for suggesting that the question of contemptuous damages ought not to be seriously considered was that if there was a libel it was not by any means a slight one; but it would be wrong for a tribunal of fact, in this case the jury, to decide a question of

contemptuous damages or not by that test.”

Numerous factors in law bore on the question of contemptuous damage apart from the seriousness of the libel, Mr Cooke suggested. The action had been brought to divert attention from the JuddFreer aspect of the matter and for political reasons, to enable the Government to avoid the question of an inquiry. Even before Holloway had consulted his solicitors, the Prime Minister had, in reference to a statement by the Leader of the Opposition, said it would be improper for him to make a statement because of the impending legal action.

Mr Leicester Opens

Replying on behalf of Holloway. Mr Leicester said that no plea of fair comment had been made by the defence because it had been shown that the “Truth” article of March 24 was so full of inaccuracies and misstatements that it would have been a futile plea to reply on. Nor was there any reliance on a plea of justification, for the primary reason that a plea of justification that was set up and failed carried with such failure the danger of the award of exemplary damages. Throughout the trial, Mr Leicester said, “Truth had sought, obliquely, to justify what was conveyed by the innuendo by representing Holloway as a sinister, secretive, and dishonourable individual. That method of presenting the case did not commend itself either to the trial Judge or the jury. Indeed, the defence went so far as to invite the jury to prefer the evidence of Sercombe to that of Holloway.

Though “Truth” had not been prepared to face the grave responsibility of setting up a plea of justification, it was clear that it did adopt a method of justification, and that was a proper matter for the jury to take into consideration in awarding damages, and no doubt it influenced the trial Judge in telling the jury that it need not seriously consider contemptuous damages. Three Articles Referring to the three ‘‘Truth’ articles, Mr Leicester said it was fair to say that the first two appeared ..Imost exclusively concerned with the financial relations of Freer and Judd. Only the concluding part of the third article, with which the action was concerned, suggested that the responsible Ministers, including Hollow; y, should give their explanations. Mr Leicester said his criticism of the article was, first, that, fairly read, its main theme was not a request for an inquiry into import licences: it was a continuation of the Freer-Judd story. Second, so far as justification for the article rested on what Judd was alleged to have said, it was open to the jury to consider that he did say what presumably Sercombe and Wrigley informed their employers he had said. On the question of privilege. Mr Leicester said he adopted the propositions he had made in the previous hearing and added a fifth, that, except where a newspaper was defending an attack or had been incited to make an attack, an allegation on its part of dishonourable conduct against a public man in office could only give rise by way of defence to fail’ comment or justification.