ACCUSED PERSONS

Evening Post, Volume CXVII, Issue 52, 2 March 1934, Page 8

ACCUSED PERSONS

PUBLISHED PHOTOS.

ALLEGATION OF CONTEMPT

MURDER CASE SEQUEL

The publication in "New Zealand Truth" of photographs of George Edward James after his arrest on a charge of murder has resulted in proceedings being taken in the Supreme Court by the Attorney-General (the Kt. Hon. G. W. Forbes) against Neil Tonks, registered printer and publisher of the paper, for alleged contempt of Court. On several occasions prior to the publication of the photographs the Chief Justice (Sir Michael Myers), ana the former Attorney-General (tho late Sir Thomas Sidey) drew attention to the possibility of a miscarriage of justice through the publication in the Press of the photographs of accused persons before .or during criminal proceedings". Sir Thomas Sidey on one occasion said that the publication of photographs under such circumstances was in most cases a contempt of Court, and rendered the publishers liable to prosecution. At the conclusion of the James case the Chief Justice referred to the publication of James's photograph, and said that if it had been published it was a matter for the Crown Law officers to look into and decide what, if any, action should be taken. : Today the Solicitor-General (Mr. A. Pair, K.C.), acting on behalf of the Attorney-General, askea that' Tonks should* .be fined, or dealt'with as the Court thought fit, for alleged contempt. The motion was heard by ths Full Court. . The Chief Justice (Sir Michael Myers) presided, and with him on the Bench were Mr. Justice MaeGregor and Mr. Justice Blair. Mr. H. F. O'Leary and Mr. J. H. Dunn appeared on behalf of Tonks to oppose the motion. . CROWN OFFICERS' ACTION^ Mr. Fair, addressing the Court, saia that this motion was made by the Law officers of the Crown consequent upon the matter being mentioned to them by the Crown Prosecutor at the direction of the Chief Justice, who presided at the trial of James.. •. : The Chief Justice: Hardly at my direction, Mr. Solicitor. The Crown Prosecutor at the trial asked certain questions. The papers were not before me. I saia that the matter had been the subject of comments from the Bench ana the Attorney-General before and that if there haa .been4 such publication the Crown Prosecutor had better bring it before the notice of the Cvown Law officers. ' ■ On July 26 last, said Mr. Fair, a tbproduction of a photograph of James a person subsequently charged with murder, together with printed matter giving his name and stating that he had been charged with murder, were published Jin "New Zealand Truth " Their Honours would see that it was a fair-sizea reproduction purporting to givequite a good picture : of his feaPrior to July 26, Janies had been charged with the murder of Mrs. Smith who was found deaain Wellington on June 30. From the letter script alongside the photograph in "Truth " ft was quite clear that those in charge of the paper knew that, the charge had been made. The staff of "New Zealand Truth" included, of course, the ■printer, who was assumed to know everything he printed, and he should have appreciated that the question of identification would arise. The tragedy was featured in sensational type over fhe whole width of the page. CROWN'S SUBMISSION. ■ The submission of the Crown was that if a newspaper published information concerning' a criminal trial and « that information had a tendency to interfere with the proper conduct of the trial, thon the paper was liable for contempt of Court. If, of course the information -published had no such tendency then they were not liable The particulars of the deaths of Mrs! James and her son were published in the "Evetting Post" of July 1 on the same Jines as in "New Zealand Truth," but perhaps a little more detailed, and, of course; a great deal niore restrained in the .form of its presenta.tion .-:..-. *■ ■ . - . . Mr. Justice Blair: What is the point about that? ■ ■ . Mr. Fair: The point about that, sir, is that any person reading this account in the "Evening .Post" intelligently would know that the.Crown would be probably required to prove the identity of the person leaving the flat on the morning of the tragedy. It was submitted that if the matter had been given serious thought it would have been appreciated that the question might arise. In fact in this case they might go as far as to say that the question of identity was. likely to arise in the course of the proceedings. It only required a moment's thought to show that it might have been a possible aefence that Mr. James haa been out of the-flat, and that it was a stranger who entered ana took the boy away. One could not tell what the defence was going to be until it was called on in the. Supreme Court. The printer and publisher, it was submitted^ should have realised that any act which was lilcely to render identification : more difficult or less reliable would be calculated to interfere with the fairness of the trial. The publication of a photograph might do this in either of -two ways. "If a witness necessary for identification purposes had not previously known tho accused by sight the publication might lead him to believe that, ho could identify him, whereas without seeing the photograph he -might not so have identified him, and thus cause au injustice to the accused. The Chief Justice (to Mr. Fair): Of course, there might have bee.n a charge, too_, of the murder of the boy, in ■which, case it would have Tieen absolutely essential.to prove the identity of the person who left the house. SERIOUS EFFECT .ALLEGED. • Continuing his address, Mr. Fair said that, secondly, the publication of such photographs, if seen before the identification parade, might provide material for the- defence for attacking the credibility of the witness. It would weaken the weight of the evidence of identification. "I want to make it quite clear here," said Mr. Fair, "that this argument I am submitting does not entirely prevent the publication of photogoraphs, because the point I am attacking would not arise In a case where the accused was a ■"person well known to the witness of identification. It is only where strangers are likely to be called to give evidence that it has such a serious effect." ' , The Court of Criminal Appeal in England, continued Mr. Fair; had in many cases pointed out that the practice of showing a photograph to a witness before he saw the accused was unfair and improper conduct. It had quashed trials ana convictions on the ground that this improper practice had been followed. It was obvious that exactly the same consequences followed

from tlie publication in the Press of photographs prior to" tho identification. These decisions of the Court of Criminal Appeal were widely known to members of the Press. QUESTION OF INFLUENCE. At tho trial, of James, ho proceeded, it was necessary to identify him as the person seen leaving the house where the woman's body was found. A witness to whom James was not previously luiown.was called to identify him. The witness hp'd actually seen the photographs of James in "Truth," and that rendered it necessary for the Crown Prosecutor to lead evidence to show that he was not influenced in his identification by that act. The term "contempt of Court," Mr. Fair went on to explain, was misleading to the general public. SIMILAR CASE IN ENGLAND. A very similar case to the present one arose in England in 1927, said Mr. Pair, when proceedings were taken against the proprietors of the "Daily Mirror," the "Daily Mail/ and others. The cases were heard together before three Judges of tho High' Court, and they were practically indistinguishable from tho, present one. In that instance a photograph was published in a case in which the question of identification might reasonably have, been expected to arise. As a matter of fact, the question did not arise. The submissions of the defence were based partly on that ground, and partly on the ground that the publication was mado only while tho.preliminary investigations were in progress ana the trial had not actually commenced. The Court held that there had been a contempt, and. ordered the newspapers concerned. to pay tho costs of the prosecution, which, of course, were considerable. Since that time the Chief Justice and the former Attorney-General (the late Sir Thomas Sidej) had drawn attention to the danger of publishing photographs of accused persons under such circumstances. Practically every newspaper in the Dominion had endeavoured to comply with the suggestions that had been made, but in this particular case "Truth" had not. The photograph had either been, published in deliberate defiance of the law, or else it was published in igross and careless disregard of the obligations to the law. i TO PREVENT INJUSTICE. "It might be said that no harm was done in-the 'present case; so why take proceedings?'" said Mr. Fair. '"That same argument was addressed to the Court in the 'Daily Mirror' ease, but it requires only a moment's consideration to see that if that view was taken proceedings would only be taken after some damagel has been done to the administration of justice. The Crown Law Officers' view is that action should be taken before the injustice is done. to prevent it." In the present caso the motion followed tho ordinary form, but in view of the time that had elapsed since the publication of the photographs, ana- the fact that this was the first case of its Kind in New Zealand, it was not asked that . Tonics should be committed to prison. It was submitted that the case would be met by a fine. In tho affidavit filed by Tonks, continued Mr. Fair, he said that ho had no knowledge of the contents of the paper until after it had been printed. Nevertheless, in law, he was held responsible. ._'.'■ THE EDITOR'S AFFIDAVIT. "The affidavit filed by the editor of the paper, Mr. McNulty, is what I can only describe as a very surprising affidavit from a man in his position," said Mr. Fair. "He says that he did not think it would bo necessary for the Crown to identify the person seen leaving the house or to call evidence of the identification of the accused. He apparently develops that argument. ... Then he seems to ignore or disregard tho fact-that the defence might not have called any evidence at all." Mr; Fair saia that ,Mr. McNulty referred to a letter written by James which was found on tho wharf as an. admission of the crime. That letter was by no means an admission of the crime. He went on to state the instance-of a case where the publication of photographs had brought witness .of identification, to prove a man's innocence. That was all very well, but his affidavit amounted to" an argument that a- newspaper was entitled to ' take a risk. The judgment of the Court in the "Daily Mirror" case, however, rendered that argument absurd. • It was submitted bj' Mr. Fair that Tonks, as representing "N.Z, Truth," should be adjudged guilty of contempt. The.Chief Justice: Are there any cases in Australia similar to this reported? Mr. Fair: There are, your Honour, but I have no note of them. They are not exactly parallel. • ' Mr. O'Leary said he had been, informed that there were no similar cases in Australia. QUESTION OF IDENTITY. ■'; Addressing the Court, Mr. O'Leary said that the principles laid down in "The Queen v. Paine,-1896,"'were that the Court's salutary power should only be exercised in cases where something had been done that was clearly in-' tended or calculated tp prejudice a trial. The principle involved in this case was whether or not it was apparent to a reasonable man that the question of identity would arise, and then there was a second question as to whether what had been published was calculated to prejudice the case or interfere with a fair trial. In thie case the questions that had to be considered . were whether the question of identity did arise and whether the publication of the photograph was in any way calculated to prejudice the case. Mr. O'Leary contended that it was not apparent to any reasonable man that the question of identity might arise, and that the case had not been prejudiced. Ho also contended that the photograph published in "Truth" was Upt sufficiently good to enable him to be identified by it. ■ The Chief Justice (to Mr. 0 'Leary): Did tho editor carefully consider the matter, carefully consider what evidence .might be required, and how the case might be conducted, and thon decide that he would be safe in publishing the photograph? Mr. O'Leary: That is his statement, apd I submit there is good ground for it. ■ MAKING IT EASIEE. The Chief Justice: What I wanted to make sure of. was whether the editor or the newspaper now sees that it made a mistake and wishes to apologise. Am I right in thinking that, and am I right in thinking that the position the newspaper desires to explain is that the editor at the outset carefully considered the matter and made up his mind that there would be no question of identity and therefore thought it was safe and-proper to publish the photographs? Mr. O'Leary: Well, your Honour, my answer to that is my presence here, and my submissions answer what your Honour says to me. The Chief Justice: It does not desire to admit that it made a nristake and wishes to apologise? Mr. O'Leary: It does not think it made a mistake on this. The Chief Justice:-Mr. McNulty does not wish to mako any departure irom that attitude now? Mr. O'Leary: I do protest, your| Honour, against embarrassing questions such as your Honour has just put to me. ... The Chief Justice: I am not embarrassing you or criticising; you. I was endeavouring, in a certain event, to make the position a little more easy for you or your client; that is' all. After further legal argument the Court reserved its decision. ■