SUPREME COURT.

Evening Star, Volume VII, Issue 1967, 25 August 1869, Page 2

SUPREME COURT.

In Banco. (Before Mr Justice Ward.) WRIT OF ATTACHMENT. Mr Macassey, for Mr H. Driver, moved for a rule nisi calling upon William John Henningham, of Dunedin, newspaper editor and proprietor, to show cause why a writ of attachment should not he issued against him for contempt. The application was based on two affidavits. The first was by Mr Macassey which, after stating that Mr Henningham had been committed for trial at the ensuing session of the Supreme Court for libel upon Mr Driver, set forth correspondence, of which the following is a copy : “ 20th August, 1869. “ Regina v. Henningbam. “ Dear Sir, —Owing to the absence of some important witnesses, the indictment against the defendant will not be preferred against him until the December criminal sittings. “ I am, &c., “ Jas. Macassey. “ G. E. Barton, Esq.” “ 20th August, 1869. “ Dear Sir, —I have received your letter stating that the indictment will not be preferred against Mr Henningbam till December sittings ; my client most strenuously objects to this. The pending < f this prosecution is of great injury to him, almost entirely stopping his credit; and he considers that a great injustice will be done to him by keeping it hanging over him for so long a period. You do not mention what witnesses are absent. I, on my part, am preparing for trial, and have subpoened eight ■witnesses, several of whom are served. I have heard it stated that your client intends to abandon the prosecution, —would it not be right for him to do so now if such be his ultimatejinteution. ? —I am, &c, “ G. E. Barton. “ J. Macassey, Esq. ” “August 20th, 1869. “ Dear Sir, —You have been misinformed if you have been given to understand that Mr Driver has any present intention of abandoning the prosecution. The undoubted right of the prosecutor to prefer the indictment whenever he pleases renders it unnecessary that I should reply to the other observations contained in your letter.—l am, kc., “Jas. Macassey. “ G. E. Barton, Esq.” The affidavit then proceeded to state on the 20th instant, after the foregoing cor* respondence had taken place, there appeared in the Echo newspaper, of which the said William John Henningham was, as the deponent was informed and believed, editor and proprietor, an article, a paragraph, purporting to be a reprint from the Mount Ida Chronicle , and certain comments thereon reflecting upon the said prosecution, and discussing various matters connected therewith. That in the deponent’s judgment and belief, the matters and things contained in the said Echo, were calculated to embarrass and prejudice the prosecution of the said William J. Henningham. A copy of the paper containing the article complained of was annexed to one of the affidavits. Mr Macassey observed that’the allegations in the affidavits, as to the defendant beiii" editor and proprietor of the Echo, were based upon an Act passed during the last session of the Assembly, which required the registration of newspapers by printers, and their filing an affidavit in terms of the Act, which affidavit was conclusive evidence of the liability of persons whose names were mentioned in it. He assumed that Mr Colliuson’s affidavit was sufficient evidence that Mr Henningham was responsible for the number of the Echo of the 20th inst. The most serious things were contained iy the leadipg article. Ho submitted that this was a case in which the Court was called on to interfere. He cited a number of cases showing the action taken by the English Courts iu cases of a similar nature.

His Honor observed that there was a difference between the present case and those cited by Mr Macassey. This was d-i facto a criminal case, while the others were civil ones. That was a point, however, which remained to be argued hereafter. As the dicta cited by the learned counsel were very much in point, he felt inclined to grant the rule. It will be well, at least, if in future tho defendant avoided making reflections upon the original matter. Rule granted. After Mr Macassey sat down, Mr Barton rose, and, on behalf of Mr Henningham, moved for a rule nisi calling upon the prosecutor in the case of the Queen v. Henningham to show cause why he should not prefer his indictment at the next sittings of the Supreme Court, or else abandon the prosecution ; and, failing the above, then to show cause why the criminal information filed by John Maclean for alleged libel, and now lodged in this Court, should not be quashed, on the following grounds:—lst. That it was laid by a private prosecutor without the leave of this Court, and is not laid ex officio by the Attorney-General or by his direction; 2nd. That the depositions taken in the case show no crime committed by Mr Henningham for which the Grand Jury would be entitled to bring in a true bill. There was a long affidavit by Mr Henningham, which set forth that he was ready to proceed with the trial, and that a number of witnesses were subpoened on his behalf. The case was injuring him in his business, and if it were postponed, it would still further injure him > and besides his witnesses were not in a position to remain here ; that the prosecutor had intimated his intention of not proceeding with the case to trial. The Judge observed that the case was a criminal one, and was set down for trial at a particular session, and he did not know by what rule he could order its being brought on. When the case came before the Court, it was the proper time for the person desiring a postponement to apply for it. Mr Barton remarked that it was a private prosecution, and although criminal, the trial was conducted as though on the civil side of the Court. Independent of that, he thought he could show that the other side had given express notice that they had no intention to go on with the trial. If that notice were allowed to pass, without this application having been made, it might be properly said the defendant acquiesed in the postponement.

The Judge said that, if no indictment was preferred, the defendant would he digcharged, and the proceedings would have to bo commenced de novo.

Mr Barton pointed out that the prosecutor might, at the last moment, go on with the prosecution, or when the defendant with his witnesses were in attendance not prefer an indictment. The Judge admitted that it was a matter of great hardship aud inconvenience to the defendant. Mr Barton next proceeded to point out that the prosecution was improperly commenced. Jn England, an information of this nature would be laid by the AttorneyGeneral, or, if by a private person, he would have first to obtain a rule from the Court of Queen’s Bench. He submitted that the only proper course here, was by making a motion in the Supreme Court. A fter some further argument, Mr Barton said that the prosecutor had taken upon himself to postpone the case as he pleased. He submitted that it was for the Court to give judgment upon the matter. The Judge remarked that Mr Barton was assuming that the prosecutor had the right to do so. The letter of the proieoutor’s counsel merely stated their intention of applying for a postponement. The ordinary rule was that the case came on for trial as set down. This would bo done in this case, unless good grounds for postponement were shown. Mr Barton said that after his Honor's expression of opinion, it would be unnecessary to make any further observations. The Judge : When the trial comes on, it is for the other aide to apply for a postponement. If no indictment is preferred, the defendant’a recognisances will be discharged as a matter of course. He did not. however, lay it down that a discharge because no indictment was preferred would be equivalent to an acquittal.

Mr Barton did not desire the Court in any way to express an opinion on that point until the case was brought on. In reply to the Judge, Mr Macassey said he had no intention of abandoning the prosecution, nor of making an application for postponement of the trial. No indictment would be preferred at the ensuing session, and in consequence the defendant’s recognisance would be discharged. The matter then dropped. Mr Smith applied for an order calling upon the parties interested in the will of the late Mr John Jones to show cause why Mr James Mills should be appointed managing trustee. Order granted.