Legal Argument In Libel Claim Against Papers

Press, Volume CI, Issue 29900, 14 August 1962, Page 16

Legal Argument In Libel Claim Against Papers

(N.Z. Press Association; WELLINGTON, August 13. A magistrate’s retrospective order suppressing evidence in criminal proceedings was not lawful, Mr H. Taylor submitted in the Supreme Court today. He was appearing for seven newspapers against whom a jury had assessed a total of £2500 damages for alleged libel in a claim by Frederick Ernest Bog* nuda, a Wellington company director. The action arose over publication of a report of criminal proceedings during which evidence was given that there was some suggestion a man named Bennitt was Bognuda’s illegitimate son. Bognuda claimed that the presiding Magistrate subsequently made an order prohibiting publication of that section of the evidence relating to the suggestion.

The £2500 damage* were apportioned as follows: The •Christchurch Star," £800; “The Press," Christchurch, £700; the “Manawatu Evening Standard,” Palmerston North, £300; the "Hawke’s Bay Herald-Tribune," Hastings, £250; the “Daily Telegraph,” Napier, £250; the "Ashburton Mail and Guardian." £150; and the “Oamaru Mail," £5O Bognuda’s counsel today moved for judgment for the plaintiff. Counsel for the defendants opposed the motion. Mr Justice McGregor reserved his decision.

Mr G. I. Joseph, with him Mr A. A. T Ellis, appeared for Bognuda. Mr B. D. Inglis appeared with Mr Taylor for the defendants.

The newspapers contended that the Magistrate's order was made without jurisdiction as there were no proper grounds in fact or law for making it said Mr Taylor. Even assuming that grounds did exist, the Magistrate was functo officio when he purported to make the order, and was therefore no longer competent to make it Counsel said he questioned whether Bognuda had proved there had been a lawful order and he joined issue as to where the onus lay There was some evidence that three witnesses heard the Magistrate make the order, but there was no Court record of the order, and, indeed, under the Summary Proceedings Act it was doubtful whether the Court need make any such record. “No Assumptions” There were no assumptions as to the validity or legality of the order, and it was for the plaintiff to satisfy the Court that he had a good order on which he could rely There was no presumption in favour of the order of an inferior tribunal that it was legal and valid, counsel added. The only evidence as to the Magistrate's reason for making the order was his words that publication "would do untold harm to the parties concerned ." Under section 156 of the Summary Proceedings Act the only jurisdiction for making an order was covered by the particular words, "in the interests of justice or public morality ” Under that section the Court had a double, alternative function, to exclude the public from the court and to order suppression of publication of the evidence in the interests of public morality Those should be dealt with at one and the same time, otherwise the purpose and reality of an order would be lost

There was nothing in the present case to show that the grounds of public morality had been put forward to the Magistrate. Mr Taylor said The plaintiff did not think he had any standing in those proceedings and the best he could do was to move the Crown Prosecutor to make the application for him The order was made after discussion in the Magistrate's chambers. It could not be said that to publish a statement that one person was the illegitimate son of another was against public morality The statement had been made in cross-examination

on behalf of one of the persons involved.

It might be that the real question was one between the plaintiff and the Press Association, which had not been joined as a party and had no status. Its conduct could not therefore be called into question in the presen.', proceedings Assuming that the order was lawful, the defendants had no knowledge of it, and the most complete good faith on their part had been established. Not one word had been said by anybody about public morals, and nothing had been done in respect of the present proceedings to suppress publication of the evidence Public Morality Referring to the question of public morality. Mr Inglis said that section 156 lay at the heart of the plaintiff's case. It was not a question whether the order was voidable. but only whether it was lawful. The right of the press to publish fair and accurate reports of court proceedings was most jealously guarded, and could be limited only by express statutory provisions that the courts would construe strictly. Section 156 gave the Magistrate no jurisdiction to make the order, Mr Inglis said. Even if there were jurisdiction on proper grounds, the order was nevertheless not properly made. The plaintiff had to show that there was some real danger to public morality if the evidence were published. But not even a remote danger had been shown. An inferior court had no jurisdiction to do anything not expressly provided for in the legislation

The functions of a magistrate conducting a preliminary hearing were, apart from express powers, confined to sitting as an examining magistrate and deciding whether or not a prima facie case was made out. A different situation arose where a magistrate was presiding over a summary trial. The question could be approached by asking whether there was anything in the passage complained of

that could contaminate public morals. It might be that it was easier to say that a case fell on one side or the other of a line than to say where the line was It was a matter of public welfare as distinct from private Interests.

The copy of the depositions marked by the Magistrate showing the passage of evidence covered by the order had been handed to a reporter. An order could not be lawful if only one or two people in the court knew about it, counsel added. Plaintiff’s Counsel

In reply, Mr Joseph said the plaintiff was not going to rely on an inherent jurisdiction of the Court but on the statutory jurisdiction of section 156.

Had the detective-sergeant under cross-examination in the Magistrate’s Court embarked on a grisly, blow-by-blow description of an act of adultery by Bognuda. that would have been against public morality. It was a question of degree, and most judges and magistrates had different measuring sticks. But they did have a discretion, and the Court was not expected to read the mind of the Magistrate. Even if the Magistrate had been wrong, his decision was not subject to appeal, and the only remedy was a writ of certiorari.

The Defamation Act made no provision as to whether or not a defendant knew about an order. The mere fact of the order was sufficient. Had the newspapers consciously defied the order, that would have inflated damages. Replying to the submission that no order had been asked for suppressing publication of the evidence in the present proceedings, Mr Joseph said the plaintiff could not have cleared his name if that were done. The widest publicity in the civil proceedings was absolutely necessary to let everyone know that the statement was false. Mr Ellis submitted that if the Magistrate exercised his jurisdiction wrongly it would, at the worst, make the order voidable. It would have some effect in law till it was quashed.