Evening Post. MONDAY, OCTOBER 26, 1925. CONTEMPT OF COURT

Evening Post, Volume CX, Issue 101, 26 October 1925, Page 6

Evening Post. MONDAY, OCTOBER 26, 1925. CONTEMPT OF COURT

Tho interest of the first of the two remarkable cases which so closely divided the Court of Appeal last week,is mainly antiquarian. ' The absurdity of a state of the. law under which a man and his wife are so completely of one ilesh and one spirit that they can no. more conspire to commit a crime than a man could conspire with himself, but would be deprived of their incapacity if their child of fifteen acted with them, was pointed out by the late Mr. Justice Stephen half a century ago. Two of the four Judges who dealt with the point last week considered that 'all the legislation which has since been passed for the emancipation of women had worked a repeal by implication of this absurdity. The majority, on the other hand, found an implied confirmation of it in the Crimes Act itself. An anomaly which nobody would dream of justifying therefore stands, but it merely stands till the next session cf Parliament, when, whatever the electors may say next week, its removal by a unanimous vote may be expected. Though the second case resembled the first both in the closeness and in the personnel of the division; there were also two fundamental differences. The question at issue in the second case was one not of merely academic or antiquarian interest but of grave practical importance, and arising as it did within the sphere of Judge-made law, it is not a matter on which, if a remedy is needed, Parliament can^ be expected to supply it. Another interesting, though less important, difference is that, instead of being tied up by a precedent more than five hundred years old, as it was in the first" case, the Court was apparently free in the second to apply an undisputed principle without help or hindrance from distinguishable or indistinguishable cases,

It was the great, far-reaching, and many-sided power of committal, for contempt of Court that was invoked in the applications against two Christchurcb newspapers arising from their reports of the Mouat case. The three different phases of this power were described' as follows by Lord Chancellor Hardwickc in a case decided nearly two centuries ago.

There are three different sorts of contempt : one kind of contempt is scandalising the Court itself. There may also be a contempt of tin's Court in abusing parties who arc concerned in cases here. There may also be it contempt of this Court in prejudicing mankind against persons before the cause is heard. . . . There cannot be anything ij[ greater consequence than to keep the streams of justice dear and pure thai parties may proceed with safety both to themselves and their L'llUl'ilctcl'ii.

Committals for contempt of Court by " scandalising the Court itself" have been said to have become obsolete in England, and the mark is fortunately equally applicable to New Zealand. In both countries the Courts are so firmly established in the public respect and confidence that they can safely »leave their defence to others. The unfortunate position in which a Court may put itself by the exercise of this power was proved by the Craig case in New York some two years ago. In a country where every newspaper is in contempt at every stage of any interesting criminal investigation and trial, respect for the Courts was certainly not increased by this attempt of an American Judge to lay his critic by the heels.

21; was in defence not of (heir own dignity but of Ihe right of an accused man to an absolutely lair trial that Ilir, Judges granted the application i>[ the Crown in this case, and (lie only <|tiestion is whether in doing so ■they showed due regard for a principle, of almost equal consequence—of Ihe right of the public to be. fully informed of the. proceedings of its? (Jourls. What gol, the Christchurch " Sun " into trouble was the publication in the course of: JVbnnif:» Urn) /':;)• HHii-dt'i; b.[ (,}•)<■ Ji.Qliois.iusj' jwagi'tt.ji'Ji reifiliiag tci

the evidence of the principal witness for the defence : —

As she spoke of her knowledge of the Mounts her gaza alternated between the Crown Prosecutor and tlie dock: from uii(l(!i: her brown hut she spared many Hiiick smiles for Muuat,

The accuracy of this report was not disputed, but the AttorneyGeneral contended that it conveyed comment as well as a statement of fact, and that as the effect was necessarily prejudicial to the. prisoner it was illegitimate. Mr. Justice Reed, one of the three Judges who upheld' this argument, supported his conclusion in the following terms : —

The contention of the Attorney-Gen-enral is that it is more than a statement of fact; that it is in truth a comment on the witness. A mere note of exclamation to a sentence would constitute a comment, a tone of voice, a raising of the eyebrows, "a cough will convey a comment. Now, what is the paragraph in question but a, comment on the demeanour of the witness ? It is not only a statement of fact, but in its whole construction contains the obvious comment that the witness was biased towards the prisoner.

The dissent of two of the Judges from this reasoning encourages the layman to put aside the diffidence which he usually feels in such matters and to display an equal independence. With all clue respect to the majority's decision, we venture to suggest that when Mr. Justice Reed says that " a tone of voice, a raising of the eye-, brows, a cough will convey a comment," he gives away the whole case. He is, of course,. referring to the reporter, but the remark is equally applicable to the witness. The cough or the gesture or the hesitation of a witness is the commentary which the witness himself supplies on his own words, and as such things may qualify or even reverse the face value of the words, would not a report which omitted them be grossly mislead-, ing 1 and is. the report which faithfully includes what is necessary I'qv their understanding to be punished as unfair comment? "A cough," says his Honour, " will couvey a comment." It certainly may, but the witness's cough is the witness's own comment and as, much a part of his testimony as. a qualifying sentence. If a witness winked one eye when making a statement, is the statement to be reported and not the wink 1 If a witness or a defendant said: "I have the utmost respect for the Court" and at the same time threw an ink-pot at the Judge's head, would a newspaper be justified in reporting that "he expressed the utmost respect for the Court" and in suppressing the inkpot as evidence of bias? The fact is, as his Honour's argument implies, that words are not the only method of human expression, and we regret that a majority of the Court should have ruled out what may be an essential part of an accurate record.