Judge’s Summing Up: Issues For Jury To Decide

Gisborne Herald, Volume LXXVI, Issue 22952, 21 May 1949, Page 6

Judge’s Summing Up : Issues For Jury To Decide

(P.A.) WELLINGTON, May 20. This is a claim for £3500, a very large sum. but the case is an important one.’.’ said the Chief Justice, Sir Humphrey O’Leary, in the Supreme Court today. His Honour was summing un to the jury in the action for alleged libel taken by Leslie Edwards, journalist, against the New Zealand Press Association, Limited.

Edwards is claiming £3500 damages for the distribution and publication in December last of a London message naming.him as among 500 leading iCommunists outside Soviet Russia. The message was stated to be a condensation of a document issued by the Government Printing Office in Washington. No Evidence For Defence No evidence was called by the defence and the final addresses were begun this morning. The Chief Justice, after counsel had summed up, told the jury that it should disregard ideological views that sometimes agitated the community and not allow sympathy for one side or the other to affect giving an impartial decision.

It was true, he said, that the press performed a very important function in a democracy. If, however, it broke the law it was in no different a position from anyone else. Mr. T. Henry, for the plaintiff, told the jury that whether the message was a fair condensation of the document from which it was taken was beside the point; in any case, however, the defendant association admitted that the report was untrue in every respect in which it referred to the plaintiff. When the message was received in New Zealand, continued Mr. Henry, it contained only fouf names, including that of the plaintiff. When there were so few names to be checked it was culpable negligence, counsel suggested, that a check for accuracy was not made. Plaintiff was living in Wellington and it would not have been difficult to get in touch with him. The message contained "dynamite,” said Mr. Henry. Obviously it did, because although the message was sent to many newspapers a majority of them "smelt a rat” and did not use the names. Only nine used them. The message was published on December 4 and it was not until January 26 that an apology was published. Cultural and Peace Aims Plaintiff’s association with the Society for the Promotion of Closer Relations with Soviet Russia—a body which had the blessing of Mr. Nash and Mr. Holland—was not to be interpreted to mean that plaintiff was a Communist. He had

been concerned with the cultural and peace aims of that body. The question had been raised as to whether it was defamatory to call a man a Communist. The name of Bernard Shaw had been mentioned, but the present action, said Mr. Henry, did not depend on the mere naming of the plaintiff as a Communist, but rested on the whole context of the message. In it he was mentioned as being one of 500 leading Communists of the world outside the Soviet Union. Mr. Henry, continuing his address, said the thing was given an international flavour, the suggestion linking in with the plaintiff’s occupation as a leader writer on the Southern Cross. For many months plaintiff wrote 25 articles a month for that newspaper, but the defence had only brought three of them under notice for purpose of its case.

What would the average right-think-ing person think of the type of man named in. the message? asked Mr. Henry. He added that it would be condemnatory—and this, he said, when the references to plaintiff were entirely unfounded.

Touching on the matter of damages, Mr. Henry told the jury to remember that “mud will stick” and also that his name had been besmirched among businessmen. advertising managers and newspapers—the very people upon whom the plaintiff depended for advancement in his professional life. Plaintiff could have separately sued all nine newspapers that published the message containing the plaintiff’s name —one of them in Christchurch and another in Palmerston North, both places in which the plaintiff had worked, said Mr. Henry, in conclusion. Acted in Good Faith Mr. G. G. G. Watson, addressing the jury for the defence, said the message was taken from a document prepared by a committee of the Government of the United States on international communism. It was of such importance that it was of the essence of the Press Association’s duty to cable a summary of it to the world. The association acted in good faith in .publishing it. It would be unfair to express condemnation of that by awarding heavy damages. The defence had not sought to prove the truth of the statement about the plaintiff, but the plaintiff had thrown upon the defence the onus of proving the truth of the whole of the message. His Honour interposed at this point, saying that he would*-direct the jury that to establish justification the defence would not have had to go to that extent —for instance, to prove that Molotov was Molotov. Mr. Watson said that no newspaper of its own volition could say whether the plaintiff was a Communist or not, but the plaintiff was told that the publication of the original message that equal space would be given to any statement he might wish to make. Plaintiff, however, took up an unreasonable attitude and made it clear that he wanted to make money out of the happening. Nevertheless, the newspapers did ; eventually publish an apology. “I ask you gentlemen, said Mr. Watson. to consider whether he desired to ' rehabilitate his name or to , make ' money.” ' Counsel then posed the question as 1 to whether it was defamatory at all to 1 call a man a Communist. Whether one liked communism or abominated it, i they were legal parties in New Zealand, Britain, Canada and Australia. , These parties published newspapers and had public offices. In Britain ■ there were Communist members of Parliament. Was it defamatory to put a ! man in the class of Professor Haldane or Bernard Shaw who were openly avowed Communists? asked Mr. Watson. v Innuendo Allegation Plaintiff, however, added Mr. Watson, contended that the context of the message contained an innuendo that he was a traitor to his country. If plaintiff did not bring the bird down with the first barrel, concluded Mr. Watson, he, had a second loaded with the innuendo. His Honour, in his summing up, explained to the jury the broad principles of the law of libel, and dealt with what had been termed an innuendo arising from the publication of the plaintiff’s name in relation to the full context of the message. The defendant had pleaded that an apology was published in the newspapers That plea was available in law in mitigation of damages, but not in satisfaction of them. His Honour added that to clarify the matter he would ask the jury to consider two questions which he placed before them in typewritten copies. The firsi question asked whether the words contained in the message were defamatory and the other question related to the" innuendo claimed to attach to the message. His Honour said paragraph 4 referred to in the statement of claim contained the words of the message that gave rise to the action. Paragraph 7 referred to what was called the innuendo of the message. There was also a third- question, said His Honour, but that was the one word “damages,” merely calling attention to a duty that would concern the jury as a result of its answers to the two main questions. His Honour, continuing his summingup, said a case might at some time arise as to whether it was defamatory of a man to say, “He is a Communist” and that would have to be decided, but in the present case the plaintiff complained of being ranked among the leading Communists and the placing of his name in a message in relation to its contextThe defence said this did not lessen the plaintiff’s standing in the community. If the jury answered “yes” to the first question it need not go on to the second question about the innuendo. It needed only to go on to that question in the event of its answering “no” to the first. The assessment of darriages, said His Honour, was the province of the jury, but lie mentioned to them that the extent of the publication had been very very great. Of the nine newspapers in which the message appeared two were metropolitan journals. The others were ariiong those of the larger provincial towns, so that publication must have gone into thousands of hands throughout New Zealand. The jury retired at 12.40 p.m.