"NOT SACROSANCT."

Dominion, Volume 4, Issue 1154, 15 June 1911, Page 5

"NOT SACROSANCT."

JUDQES AND CRITICISMS. WEIGHTY DECISION. THE VALUE OF FAIR COMMENT A decision of very groat importances, and of particular interest to Now '/asland just now, was delivered by the High Court of Australia on Wednesday of last week. In. it wcro laid down the principles that should govern the criticisms of judges, and those- arc of such a nature as nmount to a severe snub to the critics of Mr. James Allen's references '.o tho payment by tbo Government to Sir Robert Stout of enormous fees over and above his salary. The suit wns brought on behalf of the Federal Attorney-General agaiust the, editor of 'the HobaTt "Mercury," which had on April 7 a leading article elmrply criticising Judge Riggins, President of the Federal Arbitration Court. The fiieb two eentences of the article were cs fol* , low:"Mγ. Justice niggins is, wo believe, what is called a politicnl Judge, as he was appointed because he had well fcervod, a political party. He, moreover, senna to Know his position, and does not wean. to allow any reflections on those to whom, lie may be said to be indebted for hi* jwlgeship." Tho judges hearing the case wcro th« Chief Justice (Sir Samuel Griffiths), Mr, Justice Htirton, and Mr. Justice O'Connor.; Mr. Weigall, who appeared to prosecute,, asked that defendant be fined or ini—' prisoned. Ho said the article held a Judge; of the High Court up to contempt, speak- , ing of him disrespectfully, and following* up its statement by au illustration ofi what occurred in the Arbitration Court.,

The Chief Justice: That docs not constitute contempt of the High Court. Doe* tho article interfere with the course oil '"Mr! Weigall: I take it that it does iff; ■ tho articlo speaks of a Judge in such a. manner as is calculated to destroy _ the rospect of the community for his decision?,, and to crealo among the, public a belief-' that his judgments are affected by politi-. co.l subserviency. That is cutting at the verv root of tho Court's authority. T'ho Chief Justice: A Judge is as much open to bo libelled as anyone else; the libel may or mny not. be justified. Although publication may be libellous, it Iβ not a contempt of court unless it is calculated to obstruct or interfere with the course of justice or tho law. This is ( laid down by tlio Privy Council in one of th» latest cases. After further discission, Mr. Justice O'Connor asked Mr. Weigall, "What do you say, definitely, is the imputation f Mr. \V<Mi;all: It is practically a statement that the Judge knows his position, us a man who is indebted to a certain political party, and that ho does not mean to allow any reflections or criticisms of thore I'o whom ho is indebted. That is to sny, that he has a strong political bias, and Hint ho is fitting there with t'he intention in his mind of taking good care of those who are taking euro of him.

May Bβ a Public Duty. The Chief Justice: A Judgo may sometimes be criticised for passing a remark unconnected with tho matter before a Court. To attack a Judge's impartiality may, in cortain circumstances be a duty to tho public. The proposition is very large. In England a Judge's impartiality was very much criticised, and nobody suggested that it' was not extremely proper to mako those -criticisms. Alter 6ome further discussion of the point whether an attack on Judgo Higeins as President of the Arbitration Court could be an attack on him in his capacity as a Judge of the High Court, and so a contempt of the nigh Court, Mr. Weigall urged that the articlo began with a reference to Mr. Justice Higgins's appointment as a. Judge of the High Court. "If the statement made were true, "he added, "it , would be deplorable, and would bo calculated to bring about a distrust in the administration of justico by tho Judge concerned.. ,', Tho Chief Justice: Judges aro not sacrosanct, you' know. It is no good Co .suggest (hat they are. I Mr. Justico O'Connor raised the question as to whether it would be contempt in a caso when "words are used which ustify comment' on a Judge's impartiality-" Tho Judgmont. In delivering judgment' the Chief Justico dealt first with the point whether there could be contempt of the. High Court in a criticism ot a Judgo of that Court presiding over another Court. Hβ then proceeded to deal with and dismiss "tho proposition put forward by Mr. Weignll that any publication calculated to' bring a Judgo into contempt or lower his authority is contempt of Court," and 1 quoted Lord Chief Justico Russell in Rex v. Gray (Pago 10, 2 Queen's Bench, 1900). who said: "Any act done, or writing published, calculated to bring a Court or a Jndge of tho Conrt into contempt, or to lower his authority, is a contempt of Court,, That is one class of contempt. "Further, any act done, or writing puW lishod, calculated to obstruct or interfere with the due course of justice or the lawful process of tho Courts is a contempt of Court. "The former clnss belongs to the category which Lord Kardwicko characterised as 'scandalising a Court or a Judge.' That description on that class of con* tempt is to be taken subject to one, and an important' qualification. Judges and Courts arc alike open to criticism, and if reasonable argument or expostulation ia offered against any judicial act as contrary to law or the public good no Court could or would treat that as contempt of Court. Tho law ought not to be astute in suph cases to criticise adversely what in such circumstances nnd rcith 6uch an object is published, but it is to be remembered that in this matter the liberty of the press is no greater, and no loss, than the ■ liberty of every subject , of the King." Criticism in Public Interest. Tho judgment concluded:— "Docs tho publication of these two introductory paragraphs obstruct or interfere with the course of justico in the High Court or the due administration of tho law by the High Court? It is impossible to answer that question in the attinuative. The words taken by themselves are capable, of innocent meaning, and when taken in reference to the r<.*st of the article it is clear thai they refer iiKirely to an episode that look place in the Arbitration Court. As to the suggestion by Mr. Wc-ignll that they suggest partiality on the part of Mr. Justice ffiggins, we do not find that meaning in fhem. "I am not prepared to take up the position that when the subject of criticism is the impartiality of a judge, it is contempt of Court. On the contrary, 1 think that if a Judge or any Conrt were to make a. public utterance of such a nature as to be likely to impxir tho confidenco of the suitors in tho Court as to that Court's impartiality, or nny part of it,, any public comment on such an utterance, if fair, fur from being contempt of Court, would be for the public benefit, and would bo entitled, under tho law of libel, io the same protection given in such cases." "The only question, however, for m to determine is whether (hew words sr« calculated to obstruct the course of jus-. tie*, in this Court, or tlv due administration of the law of this Court. It is impossible for this Court to answer thii question in the affirmative, nnd no order for commitment therefore can bs made." Tho application was diamisied. PRESS OPINIONS, "MUCH COMFORT AND BELTER" The Melbourne. "Age" Rays (hat the judgment means "that a publication, may show gross contempt of :i Judgo without being contempt of Conrt. hi such a case the Judge, of course, has his remedy, just tho saino as any citizen. . . . But tho judgment goes furtliw. It rays that if am Judgo makes, such a statement as may load lo a want of confluence in him on the part of suitors, criticism of Hint statement is a public rijrhl. and a public! duty. The reading of that judgment will give much comfort and relief. It is Vised on equity and pood conscience." The "Argus" pays: "Nβ one ae<ii«&in<v ed with the spirit of British lair cev.li

i bavo had a doubt as to how the case \ must,, go; ■For;; if, a newspaper has no I: greater priviloga than a' private' indi- ! vidnal in commenting on tho conduct of i a Judge, a Judge snroly enjoys no greater .' immunity from criticism than any other ; oiiiciiil whoso doings are of interest and : concern to tho public." It also com--1 plains of tho unjustifiable procedure 1 ■ taken against tho "Mercury," saying: 'An ; - intolerable- position would bo reached it i tli9:.editor or. publisher of a newspaper ; were'to 1.0 deprived of his right to trial ' by jury because ho ventured to criticise i a Judge. When a published statement is thought to bo libellous, the aggrieved i person should have no better means of ; redress than are afforded by recourse .'• , to "a jury. A Jndgo who may .consider himself hurt -should not be ta- | "Toured in tho choice of a tribunal.

The Duly of the Press,

Tho '"Sydney Morning Herald" said: "Wo rejoice to find that the law, as interpreted by the High Court of Australia, so falls into lino with the public well-being as to allow public comment no Mess upon a Judge than upon any other person or institution calling lor public comment. . . . And it may well happen that other and graver charges may have to be made, should occasion arise, against Judges. Tho press, we feel euro , has no other feeling than that oi Tcspect for the ■ high fuuetion of the judicial office. . . But tho press has its own; great public function to fulfil, and its comment on affairs' demands its own share of privilege, for the sufficient reason of its diity to the public. . ..If the Judges, either by human imperfections, to which, after all, they are. subject, or by reason of anything mimical to the public welfare, come- within legitimate range of criticism, it is not right that they, should be exempt therefrom merely by reason of judicial office. . . mat they are- not so exempt is th« definite judgment of tho High Court. Tho Sydney "Daily Telegraph said: /'The rutin* of the Chief Justice is practicallv to tho •effect that Judges,, like ■all other public servants, must submit to be judged bv their works. . . There is a distinction between the judge as a public servant and the Crown as a public institution. Theoretically, the law. so lons as it is the. law, must be right Round the Judge,'as a maiv.howevcr, theie. does not, and cannot, cling 'even the figment of infallibility. He takes his In 1 share of human pronencss. to error, an 1: if: he maVes a serious mistake in the discharge, of his dritr, the duty of .the press is to mint'it ont. And as long as tins is done fcirly. and with the honest view of servin« the public interest, the person who does it by voice or pen, on the platform in tho street, or in th« columns of.the newspaper should not bo subject to utitnWtttion .. It would be conducive Sto the 'dignity of-the ; Judges.nor of the Court to encase them in artificia ,rmour against the shafts of cnt.csm.