ALLEGED CONTEMPT OF COURT

Dominion, Volume 32, Issue 234, 1 July 1939, Page 7

ALLEGED CONTEMPT OF COURT

Case Against Publisher Of

Weekly Paper

STATEMENT BEFORE MAN WAS SENTENCED

An order that Nell Tonks, the publisher of “New Zealand Truth,” a weekly newspaper, be committed to jail for contempt of court in publishing or causing to be published matter of comment concerning Leslie Eric Towns, when he was a prisoner awaiting sentence, was sought in proceedings instituted by the Attorney-General and heard by the Chief Justice (Sir Michael Myere) and Mr. Justice Recd in the Supreme Court, Wellington, yesterday. Alternatively it was asked that the Attorney-General be at liberty to issue a writ of attachment against Tonks. The Solicitor-General (Mr. H. H. Cornish, K.C.), with him Dr. N. A. Foden, represented the Crown. Mr. H. F. O’Leary, K.C., and Mr. J. H. Dunn appearedfor Tonks. Decision was reserved. Mr. Cornish said that Towns pleaded guilty in the Magistrates’ Court, Christchurch, op April 27, to indecent assault on a girl aged three years, 10 months. • He was committed to the Supreme Court for sentence. On May 3 “Truth” published an article which contained the subject of the proceedings. Towns was sentenced on May 12. The maximum to which be was liable was seven years’ jail with hard labour and up to three whippings,or floggings. Mr. Justice Blair sentenced him to seven years' hard labour and a flogging of 10 strokes. , In its article “Truth” stated: “The revolting nature of Towns’s offence against this helpless innocent demands that he should meet with the utmost rigour of the law when he comes up for. sentence. This is due to the community for the sake of the protection ' of little children.” This was not a statement of fact or mere comment on prisoner’s conduct, but asserted in general terms what punishment he should receive, said .Mr. Cornish. It was.couched in, strong terms calculated to arouse in th'e public mind a feeling that nothing less than the maximum punishment would be adequate. This feeling might easily pass into disappointment, resentment and indignation if the .sentence imposed fell short of the maximum. Such a statement w-as calculated to prejudice the course of justice and therefore constituted contempt of court. Three Considerations. Three matters to be considered were the possible effect upon the Court, the public and the prisoner, In respect of the sentencing judge he might successfully ignore the statement and be wholly uninfluenced by it; this was conceded to be probable. He might resent the publication and, being human, in his resentment be unconsciously carried further than he intended in endeavouring to show he was not influenced by such publication. A judge might also be embarrassed by the publication, specially if his own yiew of the appropriate sentence coincided with the unauthorized extra-judicial,forecast. The correspondence of the judicial With the non-judicial might induce a section of the public to believe that one' was influenced by the other. Such publication might decide a judge to postpone sentence till the arrival of another judge and thus create delay inimical to the ends of justice. Lastly, the Court might be unconsciously influenced by the publication, and on this point was the principal head of the' controversy. As to the effect on the public, If the sentence passed was not the maximum the public or a.sect ion of it i might consider that the judge was ini sufficiently regardful of the public in- ! terest. • Article on Judges’ Sentences. On the same page as the statement I complained of there had been published I an article headed over several columns, I “What is wrong with our judges?” This 1 dealt with sentences reviewed by the Court of Appeal. Rights of Newspapers. The Chief Justice: A newspaper is perfectly entitled to criticize the action of the Court regarding sentences, but it is the duty of the Court of Appeal to review a sentence when application is made for reduction, and frequently it. has matter placed before it, which Was not before the sentencing judge. It sometimes happens that such matter materially affects the appeal judges. The Press is not always aware of these circumstances. At the same time none can say that it has not a perfect right to criticize. It does not necessarily follow because a sentence is reviewed or reduced that the sentencing judge is wrong. It means-that three, four, or five judges sitting together, with sometimes fresh material regarding a case, take a different view. As to the effect on the prisoner, one of the principles of British justice was that when a person had purged his offence he became again a respectable citizen, continued Mr. Cornish. If a prisoner believed that a judge ■ sentenced him, having regard to a popular clamour, it would result in his leaving the dock cynical of the administration of justice and would affect his chances of reformation. Nothing submitted struck at the priceless possession of freedom of the Press. The visible impartiality and independence of the judiciary wqs also a priceless possession, which must not be affected through lack of vigilance, be concluded. ■ After some remarks by Mr. O’Leary in opening, the Chief Justice said that he agreed that the prisoner’s offence was a most revolting one. He would say no more as prisoner was appealing against his sentence. Case For Defence. Mr. O’Leary said that the sentencing judge bad stated that it was the most appalling crime he had had experience of The article which contained the statement complained of was an ac-. count of the lower court proceedings, unexceptionable and decently expressed. It showed that the writer was shocked a t what he heard in Court, had intense sympathy with the child and a conviction that, in the interests of protection from such men, Towns should bo given an adequate sentence. He had written what any decent-minded citizen who beard the evidence would have said. Mr. Justice Reed: Though one must ngree with what has been said, it must be obvious to all that newspaper comment between commitment for sentence and the time of sentence is absolutely wrong. You can see what would happen if, on every occasion a mnll was coming up for sentence, the newspapers advised the Court what to

d °Mr. O’Leary'': I assure your Honour

that no such advice will be tended in future . . . this statement was not made before trial, but after prisoner was committed for sentence and when the only person to deal with him was a judge of the Supreme Court, j submit that it is fantastic to say that a judge would be influenced by the statemen in passing sentence. . . . The Chief .Justice: You know, and I know, that it is fantastic, but the public does not reason like you do. Mr. Justice Heed said that he quite agreed that the author wrote with a strong sense of indignation and without intention of interference. The Chief Justice: I agree, too. Mr. O’Leary concluded that the publication was innocently made and prompted by the feelings of the writer, who was shocked by what he heard in Court. It was a case where the jurisdiction of the Court should not be exercised against the publisher.