WAS IT LIBEL?

Dominion, Volume 4, Issue 1222, 2 September 1911, Page 10

WAS IT LIBEL?

LETTER SENT TO MAGISTRATE,

BY AN EVANGELIST. £250 DAMAGES CLAIMED, PLEA OF PRIVILEGE. In (ho Supremo Court yesterday, Mr. Justice Sim heard the case of Edgar Evans Roes Thomas v. David Nield, a claim for J!250 damages for alleged libel. Mr. E. C. Levvey (instructed by Mr. A. Dunn) appeared for the plaintiff Thomas and Mr. E. G. Jellicoo for tho defendant Nield. Plaintiff is a clerk, formerly of Wellington, but now of Nelson, and Nield is an evangelist, manufacturer's agent, and importer., In July, 1909, plaintiff's wife was before the Magistrate's Court on charges of theft of certain moneys and letters the property of Nield, who is her grand-uncle. Tlibmas, in tho present ease, alleged that, about July 22, 1909, Nield wrote to Mr. Riddell (magistrate) a letter containing libellous, false, and malicious statements. The letter had been written at tho time when plaintiff's wife was before tho Court on (he charge of theft, and tho text was as follows: — "Dear Sir,—Will you pardon, my suggestion that it is well for you to read the enclosed, letters, as well as the par- . ticulars given to tho detectives, ro tho caso of Nessie A. Thomas. _It was that letter from Mrs. Waugh impressed mo with tho necessity and duty of placing the ease in the hands of tho Crown for prosecution, the charges being opening letters, a telegram, stealing cheques and other moneys, and obtaining money from mo by falpe statements, totalling tho sum of .£35 12s. Gd. "Wlion first accused she tried to act tho. plan of insanity. Now lam given to understand she is trying enforced illness. "Her • cunning, deceptive ways have, according to her own statements, caused the New South Wales polico no end of trouble and costs. _ She is in league with some villain whoso iden- : tity she will not divulge, but whoso revolver ease I have in my possession, and Detective Andrews has seen it. • It is necessary she should be_ freed from that man, who . is evidently blackmailing her to a very great extent. "It is a remarkable case, and requires very great discretion in deciding what to do with her. Her husband, Edgar Thomas, has aided and abetted her in many ways, and although he is not charged with such, it is not well he should go without being cautioned and censured. He has been the causo of very great annoyance to mo in my work and home. I shall be pleased to place before you further particu- : la-rs. if so desired—l am, yours very faithfuly, David Nield." In tho statement of defence, "publication" of the words was denied, and it was claimed that, in any case, the words were incapable of defamatory meaning. It was further claimed that tho letter, to -the magistrate was privileged, and that it was written solely to assist the ends of justice. Mr. Riddell, S.M., as a Witness; The first witness called was William Gleudining Riddell, stipendiary magistrate, at Wellington, remembered a caso in which a young girl named Thomas had been concerned. He had received a letter purporting to bo from David Nield, ,but that letter was not now in his possession. He believed that it had been destroyed. He could not remember exactly what was in the letter, as. two and a half vears had elapsed since lie had received it. Thero had been something in it about tho girl's husband, but witness did not remember what. It was true that lie had remarked (from the Bench) _ that tho sender of tho letter had no right to address him on a matter before the Court, and that his course should have been to approach tho police. » To Mr. Jellicoe: The girl had pleaded guilty to theft. When he received the letter,' which formed the basis of the present case, ho "understood',' that it was from a person interested in the matter before the Court. The contents of tho letter had not been made public by liini. Mr. Jellicoe: Do you remember if, in oonncction with-the case, you said-this or something like this: "So far-as the cheques are concerned, it is your duty and the duty of your husband to meet them"? Mr. Riddell:'Probably I did. "Might Incriminate Myself." David Nield was called. Ho described himself js an evangelist, manufacturer's agent, and importer. Mr. Levvy showed witness copy of the letter, mentioned in tho statement of claim, and asked if he know anything about it. Witness declined to answer on the ground that ho might incriminate himself. • His Honour ruled that the witness was not obliged to answer the question. Witness was shown another letter alleged to have been written to a lawyer. He gavo tho samo answer in regard to it. Mr. Jellicoe intimated that lib would not cross-examine. Alexander Dunn, barrister and solicitor, stated in evidence that he was -plaintiff's solicitor on tho records. Mr. Lcvvey here showed witness two letters, but Mr. Jellicoe formally objected, on tho ground that tho letters wore privileged as between solicitor and client.; Witness then stated that lis had the two letters—ono dated October 15, signed "David Nield" (typewritten signature), and another on a subsequent date, enclosing copy of a letter, said -to liavo been written to Mr. Riddell. In answer to. Mr. Jellicoe, witness said that before ho received instructions from Norton, (tho proprietor of "Truth") he had not been connected with this case. A paper—"New Zealand Truth"—had published a column about the case. Solicitor Claims Privilege. Witness objected to answer any questions in roferenco to tho publication of that matter on tho ground that it would bo an abuso of the confidence of the newspaper. Mr. .Jellicoe: Tho question was, your Honour, if the person who supplied the information for that article was Edgar Thomas. I ask your Honour's ruling. His Honour ruled that, as Mr. Dunn was acting for Norton in tho matter, it' was certainly privileged. Mr. Jellicoe: Did you know that Mr. Nield threatened proceedings in this matter against Mr. Norton?—" Yes." _ -Mr. Jellicoe: You asked Mr. Nield to come and seo you, pointing out that ho had not sent 'a copy of the letter, which ho said ho had enclosed in tho former letter?—"l asked him to see me." Witness went on to say that it was some timo after October It he had received tho copy of tho letter said to liavo been sent to Mr. Riddell. Ho was not then acting professionally for Thomas, but had been in communication with him, because the newspaper was taking his side against Nield. Tho Teason for asking Nield for the copy of tho letter was that Niold had stated that ho had enclosed it, and had not done so. Witness admitted that, when Nield carao to sso him, ho had told him that any iuformation which ho cared to supply would bo considered, and as much of it published as tho paper thought fit. Ho had never endeavoured to gain Nield's confidence, however, but was simply acting in the interests of tho newspaper to prevent a libel action. On receipt of the copy of letter sent to Mr. Riddell, witness showed it to Mr. Rosa, manager of "Truth," who suggested 'that it bo shown to Thomas, and, when it was (•shown to Thomas, witness had instructions to bring this action. Mr. Jellicoo: That was rather good business. You were saving "Truth" and keeping in with tho Thomases. "Not Ashamed." In answer to further questions, witness stated that no action had been brought against "Truth" then, and he did not think that there would bo an action, but ho knew that Nield had continued to communicate with Norton. AVitness fnrther stated that, ho would not say what he bad ndvised in this mailer, but ho admitted that, although .the copy of tho letter had been rcecied in October, tho action had not been brought until May. o£ this yciuu

Mr. Jellicoe:_ I suppose you're not ashamed oi' (his action? AVitness: No. Re-examined by Mr. Levvey, witness slated that ho hud told Nield that he was anxious 'to get at tlio facts to sctllo the dispute. But thero was never a question of conlidenco between them, for witness was acting solely in the interests of Norton. Edgar Evans Rces Thomas, plaint ill", stated allegations made to tho Magistrate were false. To Mr. Jellicoe: In 1909 lie had been in receipt of .C 125 per annum (ho was now in receipt of .£175), and was paying his mother 255. a week. lie had niado the acquaintance of Nessia Gates (now his wife) in November, 1908, and used to frequently visit her at Nield's house. Sometime in 1909, witness had become aware that Nield objccled to his visits, but had continued to call at tho house when Nield was absent. AVitness admitted having seen a cheque (produced) made by the Westport Coal Co. in favour of Nield or bearer. It was crossed "not negotiable," and had been handed to him by Miss Gates at defendant's house. AVitness had also received another cheque from the same sourc<), drawn by ICempthornc, Prosscr and Co., in favour of Nield. AVitness was then frequenting tho houso clandestinely. The first cliequo liad been handed to him by Miss Gates to cash, as she had said that she wished to pay somo bills for defendant. AVitness had cashed tho cheque, and had liandcd the young woman tho proceeds ,on tho samo evening. Tho samo thing had happened in the case of the second cheque. The reason why witness had been forbidden Nield's house was bceauso tho latter had wished liim to be "reimmersed according to his own religion," and witness liad objected. He had been married on_ April S, 1909. Shortly afterwards witness was absent for four days at a Bible-class camp in AVanganui and, about a fortnight after he camo back, and discovered that Nield had nccused his wife of helping herself to moneys and letters. AVitness did not then seo Nield, nor did lie proffer any exS Sanation as to the cashing of the cheques. !o admitted, however, thai ho had subsequently written a letter thankiug Nield for giving "tliem a chance at Dalgety's" and promising to "pay the amount owing." Mr. Jellicoo hero produced a letter from Nield to witness's wife. It purported to have been written just prior to the matter of the thefts. AVitness admitted having seen it. Mr. Levvey objected to this matter being called as evidence. It' had, he stated, nothing to do with tho plea of justification, which had been set up. His Honour held, however, that this evidence was admissible as referring to witness's complicity and his wife's guilt. AVitness admitted 'having supplied the information for tho first' report of the case that had appeared in "Truth." The Defence. Defendant (David Nield) was then called. Ho si.ated that he had brought' Miss Gates from Sydney to act as his housekeeper, while Ins wil'o was away. He had acted as' a father to her. When ho discovered that plaintiff had been , paying visits, ho objected, but plaintiff liad disregarded those objections. On April 25, he discovered that plaintiff and the girl were married and, in At ay or June, he discovered that the girl had teen taking his moneys and letters. A police prosecution followed, and a plea of guilty was entered. "Truth" published a garbled account of tho case, and wrote to tho paper asking that its statements be modified. Afterwards, when he sent to Mr. Dunn the copy of the letter which he had written to Mr. Riddell, lie had never imagined that Mr. Dunn would later bring it against him. To Mr. Levvey: He was supposed to receive tithes from every member of his congregation. When he first brought Miss Gates from Sydney to act as domestic, she declined to take wages, but he had stated that ho would, book her 10s. a week and pay for her clothes out of that. It was never intended that tho girl should assist witness in his business outside tho houso though she had occasionally, delivered parcels. . In further cross-examination witness declined to withdraw any statements in tho letter which ho had written or to make any apology. Arthur Thomas, brother-of tho plaintiff, was also called for the defence. Mr. Jellicoo contended that there was no proof that tho letter set oiit in tho statement of claim was a true copy of tho letter sent to Mr. Riddell. Ho also claimed privilege, especially as, in this case, tho defendant would liavo been a witness in tho case before the Magistrate's Court in 1909, and tho letter was merely a step or communication in tho duo course of justice. Further, the mere sending of it to tho magistrate did not constitute "publication." Mr. Levvey argued that the letter was certainly libellous, and that it was not privileged. A good deal of tho evidenco pointed to malice. Decision was reserved.