DUTIES OF NEWSVENDORS.

Evening Post, Volume LXX, Issue 15, 18 July 1905, Page 6

DUTIES OF NEWSVENDORS.

AN IMPORTANT DECISION. ' Judgment was given by the Court of Appeal this morning in the case of the Kong against Ewart. This case arose out of the conviction of Ewart (a bookseller, of Wellington) for having sold a newspaper which in regard to certain of its contents was of an allegedly indecent, obscene, or immoral nature. At the hearing of the case his Honour the Chief Justice refused to allow counsel for the defence to call evidence with a view to showing (1) that some of the matter objected to was a correct report of actual judicial proceedings, 'and (2) that the object of the publication of these matters was legitimate and in the public interest. These points, reserved by his Honour for argument before the Court of Appeal, were there argued by Mr. Skerrett for the defendant, Mr. H. D. Bell appearing, for the Crown. Mr. Skerrett, in the course of his argument, contended that it was'necessary for the Crown, to establish the crime charged, 'to prove mens rea or a guilty mind. (Ewart had declared on oath that he had not read the paper prior to the sale, nor 'was he . aware of its contents.) The reading of the judgments of the Justices occupied an hour and a quarter, and in the result a new trial -was ordered by a majority of three to two : Justices Williams, Edwards, and Chapman against the Chief Justice and Mr. Justice Cooper. The trial will take place at the criminal sessions beginning 3lst July. The Chief Justice quoted cases to showthat if certain acts done were wrong, though not a crime, then if the act (should turn out to be a crime the actor must be deemed to have taken the risk, and his intention was of no moment. There were cases where the terms of the Legislature were express and where the Courts had said that the intention of the actor was of no moment. The wqrds of the statute under which the present case was laid were express, and the question was whether the statute did not mean to abolish the- rule of mens rea in this case. His Honour was of opinion that the course of our legislation on the selling of indecent or immoral literature shows that the Legislature by -the Act of 1892 did not mean to make knowledge an essential ingredient of the offence. Under the Criminal Code of 1893, which repealed all common law offences and brought every indictable offence under the Code, it was only necessary to prove the sale of' indecent literature ; but the accused could exculpate himself by showing that he did not know that the literature was indecent. Could it be that the Legislature meant to make no alteration of this last 'provision when it passed the 1892 statute? His Honour conld not think that. In his Honour's opinion that Act was a. plain declaration that the Act of 1892 was meant to punish those who sold indecent literature, whether they knew that the literature was indecent or not. They had to take the risk of seeing whether the literature was indecent or not Before they sold it. Otherwise a Government censor would be required to te continually warning booksellers what they could sell and what • they could not sell. " Mr. Justice Cooper held that the present case was one in which, the Legislature intended to prohibit absolutely the act committed, and in which the existence of a "guilty mind" was only relevant for the purpose of determining the quantam of punishment following the offence. Mr. Justice Williams thought that the present case did not come within any of the recognised exceptions to the rub of mens rea : adulteration of foods, unintentional trespass, offences against revenue statutes. The object of the Offensive Publications Act was not to regulate trade nor to protect the public health, but to prevent and punish acts which were of themselves of, a highly immoral and disgraceful nature. It was true that, if obscene matter was sold or distributed by accident or mistake the injury to the morals of those who read it was the same as if it had been distributed intentionally. But tiie object of the Statute was to protect the public morals by the prevention and punishment of a series of Immoral acts, and His Honour thought that the terms of the section of the- Act under which the case was brought connoted the mental element of knowledge as an ingredient of the offences specified. If a person conld not exculpate himself by showing honest ignorance, a man morally innocent might be convicted of an offence of a most disgraceful kind, and be liable to be imprisoned for it; if he received only a nominal sentence the result would be a lifelong etigma. Mr. Justice Edwards, while holding that order for a new trial should be made on the ground that the issue in dispute should have gone to the jury, said he thought it could be safely laid down that it was the duty of a newsvendor to know at least' the general character of the newspaper and serial publications that he sold. In certain cases the jury would be justified, in inferring, and indeed ought to infer, that if a person charged did not take the precaution to see that what he sold did not contain indecent ' matter, it was because he wilfully abstained from making an inquiry it was his duty to make. Mr. Justice Chapman agreed that the points in reference should have been, referred to the jury for consideration. The old man found on Sunday wandering about the hills at Featherston was brought to Wellington yesterday. As anticipated, he is Henry Bakei, who wandered away from the Ohiro Home .on the 10th inst. He stated to the Police that he walked all the way to Featherston in search of work. He does not appear to have suffered in any way from his trying experience The impression in shipping circles is (says the Otaga Daily Times) that Captain Crawshaw, pi the Moeraki, has been exceedingly harshly dealt with, by the New South Wales Marine Court in having "his certificate suspended for three months over the Moeraki-Hawk collision in Sydney Harbour on 6th May. There was no loss of life and very litile damage, and the decision of the court waa not more severe in the case of the loss of the Elingamite, when a number of people were drowned and a valuable steamer was lost. According to a wire received by tho Union Company, the Court stated that it came to its decision after hearing Captain Crawshaw's own evidence, and but for his good record it would have dealt more severely with nim. We are informed that Captain Crawshaw's recent appointment to a shore position at Sydney had nothing to do with tho incident which was made the subject of the inquiry. Captain Crawshaw had applied sometime ago for a shore position, as he desired to quit seafaring, and when the vacancy referred to occurred he was given the opportunity of accepting it, and did so. The New Zealand Coal Company, at the Magistrate's Court to-day, sued Henry Savage for £2 ss, the amount owing for coal supplied. Dr. A. M'Arthur, S.M., gave judgment for plaintiff for 10s without costs, tho understanding being that defendant would return seventy sacks. Mr. Dunn appeared for plaintiff, and Mr. Wilford for the defendant. In the case May Prouee v. Sarah Beadnall, a claim of £9 3s for rent paid in advance, cost of shifting and £5 damages, judgment was for £2 5s paid into Court without costs. Mr. Wilford appeared for plaintiff, and Dr. Knight for the. defendant.. I