SUPREME COURT.

Evening Star, Issue 4689, 12 March 1878, Page 2

SUPREME COURT.

CRIMINAL SESSIONS

Tuesday, March 12,

(Before His Honor Mr Justice Williams and a Special Jury.) LIBEL.

The charge of libel preferred against George Jones was resumed.

His Honor, iu giving judgment on the demurrer this morning, said : 1 think that the demurrer must be allowed, and principally upon the second grouud which was taken by Mr Haggitt—" That the plea does not specify with sufficient particularity the the defendant is prepared to justify," and, therefore, it does not comply with the Statute under which it was pleaded. That Statute enacts "that it shall be necessary for the defendant in pleading an iuuictnieut or information to allege the truth of such matters charged, in the manner now required in pleading to justification to an action for defamation." The Statute was brought into operation in New Zealand >n 1845, befora our pre ent rules of practice and procedure came into operation, and therefore the mode under which justification mutst be pleaded mutt be tested by the law as it existed before these rules came into operation ; that is to say justification must be pleaded according to the late Common iaw rules. What these Common Law rules are appears very clearly in the case of I. Anson v. Stuart, Smith's 'Leading Cases,' and which is the leading case upon the subject. In notes to that case the learned editor (Mr John William Smith) says : " ; ho rules which require certainty of pleading were enforced with peculiar strictness In cases of justification to actions of slander or libel. If a man propagated a charge derogatory to another's character, he was prima facie to be considered a tortfeasor ;" and in Hickenbotham v. Leach, cited in the case of I. Anson v. Stewart, Baron Alderson observed, "that a plea ehould state the charge with the same precision as in au indictment." It is abundantly clear, looking at ths present pica, that it does not comply with the old Common Law rules. It does not show the prosecutor with sufficient precision the charges which ho has to meet.' It charge.? the prosecutor with fraudulent acts, but it does not set forth in what way these acts are fraudulent. The pica is pleaded under the Statute, but the Statute requires that it should be pleaded , in a particular way ; therefore, it is bad upon a general denial. Having decided the demurrer upon that particular ground, there was no absolute necessity of alludirg to the other grounds take* by Mr Haggitt in s-upport of the demurrer, but perhaps it would bo as well to do so. Taking the third grou&d, Mjp Haggitt objected- « Xhat

while professing to justify some portion of the libel, the plea introduced other matters not complained of in the libel," and alluded more particularly to the mention in the plea of some land transactions in connection ; with the Piako Swamp. In the indictment the following statement occurs in reference to the Native Lands BiU:-"lts correct designation should be, a Bill to farther enrich at the expense of the Colony the Atterney-General and his colleagues iu land speculations." Then comes the inuendo : "Meaning thereby that the said Frederick Whitaker had been by means of land speculations fraudulently and dishonestly entered into by him in connection with other per sons enriched at the expense of the inhabitants of the said Colony." That is the interpretation which the prosecution has put on the libel, and the defendant has a perfect right in his plea to adopt that interpretation, and say—"You have fraudulently and dishonestly enriched yourself at the expense of the Colony by means of land speculation. You have in one particular instance—that of the Piako Swamp—so enriched yourself." I do not think that the plea is objectionable in alluding to these matters, because the defendant abudes to them in justification of the interpreiation which the prosecutor himself has placed upon the libel. As to Mr Haggitt's fourth objection— •« That the plea does not sufficiently set out any particular facts by reason whereof it was for the public benefit that the matters charged in the indictment should be published"—l am inclined to think that the par icular facts are artificially stated in the plea; but it is quite clear that if the defendant is in a position to prove the other parts of the plea—to prove justification—it would be very easy for him, indeed, to set out particular facts, by reason whereof it was for the public benefit that the matters charged should be published. Because if it were a fact that the allegations in the plea were true, it would be so clearly for the public benefit that they should be puhlished that it would be easy to invent and state a reason why it would be for the public benefit to publish them. The first objection taken by Mr Haggitt was the one with which I had the greatest difficulty. It was, " That the plea did not cover the whole of the libel." lam not quite clear whether the plea in its present state covers the whole of the libel or not. From the way in which the plea was framed it is difficult to make out whether it does or not. My view of this point is somewhat as follows :—That the relation of the negotiations for the purchase of land may not in itself be libellous, but it is so intimately connected with the other parts of the alleged libel, so intimately connected that I do not see how it can be dissevered from it. It states that negotiations had been entered into for the purchase of a particular block of land, and that these negotiations had been put a stop to by the Native Lands Act, and that Mr Whitaker promoted a Bill to alter the Act in order that he might carry out that particular transaction. Now, a statement of the details of this negotiation does not appear to me to be in itself libellous. It would not, I apprehend, be necessary to justify as true the details of the negotiations as stated in the alleged libel; but it seems to me that it would be necessary to allege or prove that Mr Whitaker had in view the purchase of this particular block, and that his action in Parliament was taken with the special view of enabling him to obtain this particular block. That appears to me to be, in fact, what the libel charges. As I said before, the reason for allowing the demurrer was founded upon the second ground. For these reasons the demurrer must be allowed.

Mr Uees asked for leave to plead over, and said that the plea was sent to Mr Whitaker seven or eight months ago and they expected that if it were to be objected to by way of demurrer they would have received some further notice.

Mr Haggitt replied that there was not the slightest foundation for the statement that notice was to be given. His Honor said that it was unfortunate that these questions had not been discussed before bringing the jury there. It seemed to him that the plea which should appear on the record was not one which could be framed in five mitmtes or in five hours. It would have to be exceedingly lengthy and exceedingly carefully framed. He thought that it would be a pity to have another plea demurred to, and considered that Mr Kees was entitled to plead over. If the defendant pleaded justification, he did so at his own risk, because the Court would have to take that into consideration in awarding punishment.

Mr Rees said that he was sorry the difficulty should have occurred, and remarked that it was the result of inadvertence, not negligence. On the next day he would submit a plea on which he would be prepared to stand or fall.

The jury were then excused till Thursday morning, and the Court adjourned till 10 to-morrow.